Wednesday, 14 November 2012 1:58pm
Fair Work Australia has found employers are entitled to "scrutinise" the actions of employees who are absent on workers' compensation, but has ruled in favour of a surveilled worker in an unfair dismissal case.
In February 2012, the Victorian store worker, employed by Toll Transport Pty Ltd (trading as Toll Customised Solutions), took a week off work after aggravating a work-related compensable back injury she sustained several months earlier.
During her absence she was required to take a WorkCover form to Toll, but called and said she was unable to do so as her back was sore.
Toll, suspecting the worker was not being truthful, sent an investigator to observe her. Video footage showed the worker driving a short distance to a supermarket, and then driving to her sister's house later in the afternoon.
At a subsequent meeting with Toll, the worker admitted driving to her sister's house, but did not mention the supermarket trip until a third meeting was conducted and she was shown the video surveillance.
She said she forgot about the trip, but Toll terminated her employment for deliberately misleading it.
The worker made an unfair dismissal claim seeking financial compensation. She told FWA her failure to tell Toll about the supermarket trip was nothing more than an "oversight".
She said the events were "extraneous" to her employment, it was "impermissible for the employer to delve into them", and she had been "simply engaging in one of the daily tasks of modern life".
The worker argued that if the Tribunal found the termination was valid it would "allow and not discourage an obtrusive invasion into the private affairs of an employee for the purpose of disciplinary action... in circumstances where the actions of the employee during her private time had no connection whatsoever with her employment".
But Commissioner Michael Gay found the worker's absence had been a "paid workers' compensation period", rather than a "day off", and noted that it had not been submitted that Toll's actions had been unlawful.
"As an occasion where a claim for payment is being made and as an employee is claiming to be suffering from an inability to attend for duty, the activities engaged in by an employee otherwise rostered-on, on a work day, during their rostered hours, falls entirely within a category of legitimate interest of the employer," he said.
However, Commissioner Gay found the dismissal was harsh, unjust and unreasonable, and awarded the worker three weeks' pay.
"I have accepted on the balance of probability that [the worker] did forget the fact of her short visit to buy the few goods. I have accepted that when her memory was refreshed by [Toll]... [she] did then remember," he said.
Diehm v Toll Transport Pty Ltd T/A Toll Customised Solutions [2012] FWA 8818 (7 November 2012)