Australia: Termination of injured worker after out of work karate found to be unreasonable
Wetton v Woolworths Limited [2010] FWA 7538 1 October 2010

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 sick days.

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 applicant.

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 certification.

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 practically.

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 unjust.

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 described.

Further discussion about termination of injured workers will occur at our upcoming twilight seminar series.

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