Case Law: Reason for summary dismissal found to have no basis by Charles Power Editor-in-Chief, Employment Law Practical Handbook The FWC has again reinforced to employers the dangers of summary dismissal in the absence of clear and definitive facts. In Kinnane v DP World (2014), Deputy President Asbury found there was no basis for a finding of fraud which led to the summary dismissal of the Mr Kinnane based on pre-judged and biased beliefs. In May 2013, Mr Kinnane was injured at work and made a successful WorkCover claim for medical expenses but not compensation for lost wages. After some time off, Mr Kinanne returned to work performing suitable duties as provided by his employer. However, DP World suspected Mr Kinnane suffered the injury whilst working for his own business, a car fabrication business, and hired a private investigator to collect evidence of fraudulent WorkCover claims and obtaining advantage for personal gain via deceit and dishonesty. Although the investigator discovered little in the way of evidence, DP World summarily dismissed Mr Kinnane citing: failure to follow return to work instructions; providing false information to WorkCover; making untrue statements with the intent to deceive; and being dishonest for personal gain. Deputy President Asbury found the company had prejudiced the investigator’s view in respect of its brief to him such that any findings would be laced with bias and that the return to work co-ordinator’s judgment was clouded as she ‘was completely occupied with the attempt to establish fraud, deceit and dishonesty’. Without any clear evidence of Mr Kinnane’s deceitful or fraudulent activity, Deputy President Asbury held DP World did not meet its onus and there was no basis upon which she ‘could be satisfied that Mr Kinnane engaged in the conduct alleged or that he was fraudulent, dishonest or deceitful’. The case affirmed, however, that an employer who engaged in covert surveillance of an employee will not be found to have treated the employee unfairly where there are reasonable grounds an employee is engaging in wrongful conduct. However, it must be conducted in an appropriate manner, contrary to the conduct by DP World. Regards, Charles Power Charles Power Editor-in-Chief Employment Law Practical Handbook
Posted on: Mon, 14 Jul 2014 04:15:16 +0000
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