Can you sack employees who claim workers’ comp?

By Portner Press on February 26th, 2020
  1. Performance Management
  2. Workers' Compensation

In Paula Jane Allen v Kandeena Pty Ltd (2020), the Fair Work Commission (FWC) found that a dismissal for “a multitude of deliberate policy breaches” was unfair because the employer’s policies were inconsistently enforced.

It was also revealed the company director probably had an ulterior motive to dismiss the service station employee, as he told another employee he was “taking his chances” sacking her because she had made a workers’ compensation claim.

Defamation, sexual misconduct and pink hair

The employer submitted the employee defamed the employer by telling a colleague the company had “f—ed her shoulders” and that she was seeing a lawyer.

When the employer raised this with the employee, she denied saying it.

The employer also alleged the employee had breached the Sex Discrimination Act 1984 when she replied “Oh yeah” or “Hell yeah” in response to sexual comments a senior employee made about a customer.

In addition, the employee had a pink strip in her hair which the employer said was a “blatant breach in uniform policy”.

She was also observed reading a magazine and using her mobile phone while at work.

Only two valid reasons for dismissal

FWC Commissioner Jennifer Hunt found that reading a magazine and using a mobile phone were not valid reasons for dismissal as “other appropriate disciplinary action” could have been taken.

She also found that having pink hair was not a “significant breach” of the employer’s recent policy, as the employee had pink-dyed hair for many years before and agreed to change it.

Regarding the claim of sexual misconduct, Commissioner Hunt noted that the director “was too afraid” to approach the senior employee over her “more vulgar” comments.

“The unfairness in dismissing [the employee] over her statement while leaving [the senior employee] as an untouchable employee assists in the consideration as to whether the dismissal was harsh, unjust and unreasonable,” Commissioner Hunt said.

The allegedly defamatory comments made about the company also didn’t constitute a valid reason for dismissal, Commissioner Hunt found.

However, the employee denying that she made them did.

“An employer should be able to expect that its employees do not tell untruths when difficult conversations are held with them,” Commissioner Hunt said.

Commissioner Hunt also found that the employee colluding with a manager to get preferential treatment for extra shifts was too a valid reason for dismissal.

Irrespective of this, Commissioner Hunt still found the dismissal unfair.

“[D]espite there being two valid reasons for the dismissal, one known prior to the dismissal, and one following the dismissal, I find that the dismissal was harsh, unjust and unreasonable,” Commissioner Hunt said.

“Accordingly, I determine that [the employee’s] dismissal was unfair.”

Commissioner Hunt ordered the employer to repay the employee 15.5 weeks’ wages in compensation, less 30 per cent for misconduct.

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