Fair Work finds employer made up fraud in ‘attempt to rewrite history’

The Fair Work Commission has found a worker who was accused of fraud and dishonesty in relation to a WorkCover claim was unfairly dismissed from the company he worked at for more than 20 years.

Shaun Kinnane was dismissed from his position as a fitter at DP World Brisbane in June 2013, after it was alleged he provided false information to WorkCover and deceived the company for his personal gain. The company said Kinnane, who also operated his own car fabrication business from home, failed to follow ‘return to work’ restrictions outlined in a medical certificate after injuring his shoulder at work.

But Fair Work sided with Kinnane, ruling the termination of his employment was “harsh, unjust and unreasonable” and found DP World attempted to “rewrite history”.

Fair Work deputy president Asbury said DP World had “no grounds” for claims Kinnane acted dishonestly or fraudulently. Instead the commission said key members of the company, including general manager Mark Hulme and return to work coordinator Alanna Fitzpatrick “almost immediately came to the view that Mr Kinnane was being dishonest about the incident and embarked on a course of action to prove that this was the case”.

“This view was formed on the flimsiest of evidence and without any reasonable foundation,” said Asbury, who also took issue with how the company attempted to compile evidence against Kinnane, including using surveillance, which was “not based on reasonable grounds”.

M+K Lawyers partner Andrew Douglas told SmartCompany it is “very common for employers to feel frustrated by the WorkCover compensation process”, and in many cases, they will have hearsay information that suggests an employee is not being completely honest.

“This impacts on their premium and they can be aggravated so they try to mount a case against the employee,” he says.

But Douglas says in this case, it is clear the employer had “no reliable evidence”. If it had, there could have very well been basis for dismissal, he says.

Douglas says the second issue which arises in this case is the issue of complying with return to work restrictions.

He says it is not enough that an employee does not comply with restrictions on their return to work, there has to be a “genuine intent” not to comply for there to be evidence of serious misconduct.

But Douglas says many return to work plans are ambiguous and it can be difficult to know which duties fall outside of the restrictions. In this particular case, there was also a discrepancy between the weight Kinnane’s GP said he could lift, and the amount included in the return to work plan from his employer.

“Most employers don’t get on the front foot and get people properly assessed, with a task analysis,” says Douglas when it comes to return to work plans.

“They are inclined to just accept the plan from the GP … But the GP’s role is to be an advocate for the worker and they have no knowledge of the workplace,” he says.

Douglas says the average amount of time an employee has off work on WorkCover plans in Victoria is 43 days, but this could be reduced substantially if employers “aggressively managed” the process by completing appropriate task analysis in return to work plans.

Not only would this help to lower premiums, there are also benefits in terms of productivity, says Douglas.

SmartCompany contacted DP World Brisbane but did not receive a response prior to publication.