The Industrial Relations Commission of New South Wales (IRCNSW) has this week determined that an employee who deliberately deceived their employer has not been unfairly dismissed.
The employee, a Disability Care Worker, was dismissed by the Department of Family and Community Services (FACS) on 17 March 2017 after allegations she intentionally misled her employer for the purpose of gaining a financial benefit were substantiated.
For the period 23 August 2014 to 27 February 2015 the Disability Care Worker presented medical certificates stating she was “totally incapacitated for work” and had “no current capacity for any employment”.
During the period 23 August 2014 to 8 December 2014, the employee received payment from FACS. The payments were drawn from accrued leave balances.
On 27 September 2014, the employee obtained alternative employment. Notwithstanding the alternative employment, the employee continued to submit medical certificates to FACS indicating she had no capacity to work. The employee omitted to tick the box on the certificate which stated “I have/have not engaged in any form of paid employment…for which I have received or am entitled to receive payment in money or otherwise since the last certificate was provided”. The employee did sign the declaration which read “I declare that the details I have given on this declaration are true and correct, knowing that false declarations are punishable by law”.
During the period the employee had obtained alternative employment, she attended an appointment in connection with her workers compensation claim. Based on the information the employee provided, the medical practitioner reported “she sits in bed all day”, “she can go for days without sleep” and “she is always in tears”. The medical practitioner confirmed the employee had an “ongoing incapacity due to her work injury”.
On 8 December 2014, the employee’s workers compensation claim was accepted. All monies drawn from accrued leave balances was re-credited. The employee then received fortnightly workers’ compensation payments.
The employee continued to work on an essentially full time basis with her new employer.
On 5 March 2015, the employee was asked to provide a statutory declaration setting out whether or not she had engaged in paid work. She failed to do so.
The employee’s conduct was investigated. FACS alleged the employee engaged in misconduct when she failed to act with honest and integrity by not including information directly relevant to her employment with FACS on the medical certificates provided to support her workers compensation claim.
The employee also breached FACS’s Secondary Employment and Private Work Policy by failing to obtain prior approval before undertaking employment with another service provider in the disability sector.
The Commissioner did not accept the employee was “naive and confused”. Instead the Commissioner maintained “there was a deliberate concealment from her employment…by declining to answer the required question on the WokCover certificate relating to other employment, [and].the fact that she had engaged in that paid employment....I cannot from any other conclusion that that this was a deliberate course of conduct”.
The Commissioner went on to reject the application citing the dismissal was entirely justified noting this conduct, which was active deceit, struck at the heart of the employment relationship. The misconduct was serious, and the respondent “could not be expected to have the necessary trust and confidence in [the employee] moving forward to maintain an employment relationship”.
As demonstrated in this case, internal investigations are important for ensuring allegations of misconduct are handled correctly. Under current employment legislation, costly consequences await organisations found to be managing or terminating staff incorrectly.
Attend our Managing Termination, Redundancy and Unfair Dismissals to increase your knowledge of counselling and discipline processes, and how to best manage an unfair dismissal claim or our Investigations in the Workplace to be develop your knowledge on what constitutes unlawful behaviours, the principles of an effective investigation and outline your role as an investigator.
Written by Ben Cirona
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