In Willmot v BlueScope Steel Limited [2017] FWC 4309, the Fair Work Commission (FWC) considered an unfair dismissal application made by an employee who was summarily dismissed for serious misconduct in relation to his worker’s compensation claim.
Mr Willmot (the Employee) was employed by BlueScope Steel Limited (Employer) as a Process Worker/Operator at a steel mill in Victoria when in November 2015, he slipped and fell in the workplace sustaining injury to his back and lower leg. He was subsequently diagnosed with lower limb weakness, back pain and spinal shock. The Employee lodged a worker’s compensation claim with the Employer (a self-insurer) and his claim was accepted.
In or about May 2016, the Employer, concerned that the Employee’s condition had deteriorated, had the Employee independently assessed by a neurologist and arranged for a period of surveillance of the Employee.
At a case conference with the Employee and a Senior HR Adviser, the Employee stated that his restrictions included that he:
The Employer’s surveillance and a witness report later showed the Employee walking unassisted using one hand to carry a crutch and the other to push a trolley, and driving over 70 km to a medical appointment alone and unaccompanied.
After examining the Employee and reviewing the surveillance footage, the neurologist formed the opinion that the Employee was feigning his injury. The neurologist concluded there was no evidence that the Employee suffered from a spinal injury and that the Employee’s behaviour was inconsistent with such a diagnosis. The neurologist noted that the Employee’s presentation at the examination was inconsistent with the surveillance footage where the Employee was recorded as being able to walk without the support of crutches and bend and stand without assistance.
In June 2016, the Employer terminated the Employee’s workers compensation claim based on the evidence. It also separately commenced an investigation in relation to his conduct and in December 2016, the Employee was summarily dismissed for:
In the FWC, the Employee submitted that the Employer took a “simplistic approach” to his case and it did not have regard to other possible factors for his condition, including psychological factors such as suspected conversion disorder. The Employee also claimed that he was able to be functional in public because he was “fully augmented” and that this differed when he was at home. The Employee claimed that the Employer had a “planned strategy” to terminate his employment and he was denied procedural fairness.
The Employer submitted that it had a valid reason for the termination of his employment, as the Employee’s actions constituted serious misconduct. The Employer also submitted that that the Employee was afforded procedural fairness as he was provided with opportunity and additional time to respond to allegations made against him. The Employer argued that the Employee had the opportunity to present it with evidence of a diagnosis of conversion disorder but did not do so.
The FWC held that there was a valid reason for the termination and the Employee had been afforded procedural fairness, noting that the Employer had undertaken an extensive process over some time which provided the Employee an opportunity to respond to the allegations relating to his conduct before deciding to terminate his employment. The FWC held that there was uncontested evidence from the independent neurologist regarding the Employee’s condition which the Employee could have countered with his own medical evidence but did not do.
Further, the FWC considered the Employee to be an “unconvincing witness at times” and noted that the Employee had a “propensity to exaggerate his condition and ultimately to mislead.”
Accordingly, the FWC held that the Employee was not unfairly dismissed.
Lessons for employers
Often, employers may have doubts about the veracity of an employee’s claim for workers compensation or where it is believed that an injured employee is malingering. In this case, BlueScope Steel as a self-insurer was able to investigate and terminate the worker’s compensation claim (and his employment) successfully with a careful strategy.
Where employers have doubts about whether a worker’s compensation claim is genuine, it is important that employers assist their insurers by providing as much information as possible regarding the claim, including the circumstances of the alleged injury, the employee’s history (including medical history) and witnesses to the injury or to the employee’s conduct after the injury.
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