Joking – Not enough for dismissal

The Fair Work Commission (FWC) has found that a dismissal of a casual driver who made a joke about putting a WorkCover claim in to be harsh and that Hinterland Motors Pty Ltd T/A Hinterland Toyota (Respondent) had “acted in a pre-emptive manner and did not establish that any action by the Applicant was fraudulent.”

The Applicant made an unfair dismissal application against the Hinterland Toyota (Respondent) to the FWC. The Applicant was employed as a casual driver via a disability employment agency on restricted duties due to a prior injury.

In March 2020 the Applicant was called to meet with the Respondent after finishing his shift. He was advised that due to the COVID-19 pandemic and a downturn in work, the Respondent would not have any driving work for the Applicant until further notice. The Respondent stated that if there were any ‘day to day jobs’ that came up requiring the truck, he would contact the Applicant to come in and complete that work.

The Applicant gave evidence that following this meeting, he went to clean the cabin of his truck, and while getting out of the truck he slipped on the side of the driver’s seat and hit his tail bone on the trucks’ door locking bar and then sent a text to the Respondent’s mechanic, whom he reported to for his daily runs each day, stating: “Hey mate, I just signed off and put the keys up for you. Got my wallet out after cleaning the truck and slipped getting out fell straight down on my friggen tail bone lol … let me know when you need me, and I’ll be down yeah 🙂.

On his way home the Applicant gave evidence that he stopped at a petrol station and bumped into another of the Respondent’s employees and told him what had occurred and stated that he made a ‘jovial comment’ that it would be a good time to make a WorkCover claim, like his colleague had. The Applicant stated that he and his colleague laughed about this, and that the colleague mentioned his concern about the likelihood of his own hours being reduced, stating words to the effect that he “should go and have another slide on [his] knee.” The Applicant and his colleague laughed about this also, to which the Applicant responded, “hopefully I am back at work soon” and they went their separate ways.

The Applicant’s colleague then reported the conversation to the Respondent and gave evidence to the FWC that there was no laughter between them, and that he believed the comments were inappropriate.

The next day the Respondent sent an email to the Applicant stating that it had been brought to their attention that the Applicant was intending to make a WorkCover claim after he was told that his casual hours were being put on hold due to the slowdown and lockdown caused by the Covi-19 Virus. The email further stated that the Respondent was “taking your claim very seriously and is in the process of collating a fraudulent claim file on this matter to provide to all relative authorities.”

The Applicant responded to the email on the same day confirming he was not making a WorkCover claim and had not been to the doctor regarding anything stated in the email. The Applicant provided an explanation for how he hit his tail bone and confirmed his version of events regarding the conversation with the staff member at the Caltex service station. The Respondent replied to the Applicant that “work-related injuries were a serious matter and ‘joking’ about these types of sensitive issues is not of an acceptable company standard.”

There was a series of text messages exchanged between the parties during the next week. The Respondent contacted the driver a week later about returning to complete alternative cleaning and detailing duties and receive JobKeeper, but the Applicant replied that he could not do this work on a full-time basis due to his previous injury, in which he broke 14 bones.

The Respondent summarily dismissed the Applicant the next day, stating in an email it had “come to my attention that you were allegedly about to attempt a fraudulent WorkCover claim toward Hinterland Toyota” and that it affected their trust.

Deputy President Nicholas Lake found it was problematic for the Respondent to dismiss the Applicant on the grounds that the Applicant intended to make a fraudulent WorkCover claim because the Applicant had not yet filed the fraudulent claim and asserts that he did not intend to do so. Deputy President said, “To dismiss an employee, on the basis of conduct that is almost certain but has not yet happened, is questionable.” “Further to say that the trust with the employee has been irrevocably broken through an action that did not occur and is disputed whether the intention was ever going to be acted upon further stretches the boundary of fairness.” Deputy President also observed that any employee injured in the course of work is entitled to lodge a WorkCover claim, and it is for the agency to determine its substance.

Concluding the Applicant would likely have earned $750 a week for 26 weeks while on JobKeeper if not for his dismissal, Deputy President Lake deducted two weeks to factor in his short, two-year tenure, and ordered the Respondent to compensate the Applicant $18,000.

Mr David Rode v Hinterland Motors Pty Ltd T/A Hinterland Toyota [2021] FWC 987 (23 February 2021)

This article has been prepared for information purposes only and is not legal advice. For legal advice regarding your specific circumstances, please contact WR Law directly on (03) 5499 6131 or by email at admin@wrlaw.com.au

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