Woman fights dismissal over workers’ compensation ‘deception’

Date: Jul 24, 2017

A disability care worker who was fired for failing to inform her employer that she had a full-time job elsewhere while receiving workers’ compensation payments has taken her case to a tribunal claiming unfair dismissal.

The woman was off work with her first job at the Department of Family and Community Services (FACS) due to stress following an altercation with a colleague. During this time, she presented her employer with WorkCover NSW certificates from her medical practitioner stating that she had no current capacity for employment.

The first of these certificates was dated August 23 2014. However, she was currently in the process of applying for a new job with a different employer. Her application was successful and she commenced work on September 6.

According to tribunal documents, the applicant continued to pursue a workers’ compensation claim against her previous employer while working full-time at her new job.

Receiving payments while working

On October 21, the woman was asked to visit a psychiatrist and Workers Compensation Commission medical specialist in relation to her claim.

The doctor’s notes state the woman often stayed in bed all day, went full days without sleep and only performed some cooking and light house duties due to her condition.

There was no mention of the new job, and the applicant said she could not remember whether she had told the medical practitioner about her current employment.

The applicant submitted updated WorkCover certificates on November 11 and January 14. In these forms, she left blank a question that asked whether she had or had not been working in any form of paid employment since the last certificated was provided. The woman signed both certificates as ‘true and correct’.

On December 18, FACS paid her $13,118 in leave credits and she received fortnightly workers’ compensation payments of $1,977.

The woman had also benefited from thousands of dollars drawn against her leave balances while she awaited a decision on the workers’ compensation claim.

Applicant dismissed for deception

FACS dismissed the applicant, arguing that she was guilty of misconduct for continuing to receive workers’ compensation for injuries that supposedly left her incapable of employment, yet while working full-time in another job.

Tribunal Commissioner Peter Newell agreed with the respondent and dismissed the applicant’s case. He stated:

“On the basis of all the evidence before me, I am satisfied at the level of proof required to find such a matter made out that there was a deliberate concealment from her employer by [the applicant], by declining to answer the required question on the WorkCover certificate relating to other employment, of the fact that she had engaged in that paid employment.”

“The applicant’s conduct demonstrated a deliberate intention to deceive her employer for the purpose of gaining a financial benefit, maintained over time.”

Workers’ compensation legislation can be complex, and claimants may not understand the payments to which they are entitled.

If you are confused about a workers’ compensation claim, please get in touch with Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.