The applicant commenced employment as a casual storeperson at
Woolworths in August 2007, and generally worked on Mondays,
Thursdays and Saturdays, when work was available. His sick leave
record was not good despite that, as a casual, he was not paid for
The applicant injured his back at work in May 2009 and
aggravated the injury in February 2010. He was on restricted duties
at work and had been certified fully unfit for one week due to a
recurrence of his injury, when the respondent obtained surveillance
of him instructing karate outside of work.
The respondent formed the view that the applicant had been
deliberately untruthful in his representation of capacity for work
including to treating doctors, and that as a result, he obtained
compensation to which he was not entitled.
This was described as serious and wilful misconduct leading to a
serious breach of trust which had rendered the working relationship
irretrievable. There was also an issue as to an absence from work
on 20 March 2010.
The karate was non-combat, and the applicant was instructing a
class for children in the footage. However, he did perform warm up
activities including star jumps and 360 degree arm rotations.
The applicant's credibility was an important issue in the
case. He was described as "overly defensive" under
cross-examination. However, Deputy President Bartel formed the view
that this was a response to strenuous cross-examination by counsel
for the respondent, and frustration on the part of the
Bartel DP also noted that at times the applicant was prone to
exaggeration in an attempt to bolster his case, especially in
relation to his medical condition. Those features of his evidence
did not make the applicant a 'good witness'. However,
despite this, he was considered a generally credible witness. His
evidence was consistent in relation to key events and often
supported by documentation.
It was submitted on behalf of the applicant that he had never
concealed his karate instructing from his doctors or his employer,
even prior to being advised about the surveillance. Two treating
providers, Dr Mills and Mr Barker, physiotherapist, saw the footage
in the witness box and indicated that the nature and extent of the
activities shown was not inconsistent with the applicant's
stated injury or his work restrictions.
The employer proceeded with the dismissal without any medical
evidence to counter that of the treating providers as to the
applicant's condition, and as to whether the karate activities
revealed greater capacity than reflected in the medical
Bartel DP stated in the judgment that the exaggeration of the
shoulder pain to Dr Mills and the performance of some karate moves
which were not sanctioned by the physiotherapist must be viewed
The karate moves were limited and were not vigorous or jarring
actions inconsistent with the medical restrictions. The work
restrictions were determined on the basis that the work involved
repetitive actions with resistance.
Bartel DP thought the applicant was "less than honest"
as to the extent of his activities, when questioned at a meeting at
work on 29 March 2010. However, the serious allegation of fraud
made by the employer was not made out.
The employer failed to discharge the high onus of proof, in that
regard. As such, it was held that the applicant was not guilty of
the misconduct alleged and his dismissal on that basis was
It was also concluded that the applicant was denied the
opportunity to provide a defence to the allegations of deliberate
misrepresentation as a result of the employer's failure to
enable him to obtain evidence from his doctors in relation to the
surveillance footage or to respond to the totality of the footage
in the respondent's possession. This procedural failure was
considered significant, and one that led the respondent into error,
with serious consequences for the applicant.
We envisage the surveillance was withheld until after cross
examination. However, it would appear that any forensic advantage
in that regard was outweighed by the procedural fairness issue
Further discussion about termination of injured workers will
occur at our upcoming twilight seminar series.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).