Sacked: worker's comp cheat caught moonlighting

Sacked: worker
By Jim Wilson on 3 August 2017 Claiming workers compensation because of stress-related lack of fitness for work – while actually working a second job – has been held to be sufficiently serious misconduct to warrant firing an employee.

And deceit by an employee, regardless of whether that deceit was for gain, will generally be a basis for termination, the Industrial Relations Commission of New South Wales held in Shakir v Family and Community Services. Another important aspect of the Commission's ruling is that a decision-maker has an obligation to be independently satisfied of the facts before taking disciplinary action against an employee. 

Termination of employment


Ms Khiloud Shakir was dismissed in March 2017 from her job as a Disability Care Worker with the NSW Department of Family and Community Services (FACS). 

A workplace investigation concluded that Ms Shakir had, on at least three occasions, failed to act with honesty and integrity. She did not declare relevant information on a WorkCover NSW Certificate of Capacity form, which was submitted as part of her workers compensation claim. The employer considered that Ms Shakir received financial benefits to which she wasn’t entitled. 

Background 


On 16 August 2014 Ms Shakir responded to a job advertisement from a private disability services provider and, at the end of the month, made a successful job application. However, on 17 August 2014, Ms Shakir was involved in an altercation with another worker. Ms Shakir stopped attending work because she said she was stressed. She then presented, from her general practitioner, a series of WorkCover NSW certificates of incapacity to work. These were given to her employer.

Ms Shakir later began working for the private disability services provider yet was still receiving monies from FACS, drawn from her leave balances, and from WorkCover. She also later received funds from QBE, which was the insurer of FACS.

She continued to present WorkCover certificates of incapacity to FACS. Part C of the WorkCover form asks the worker to declare whether he or she has engaged in any form of paid employment since the presentation of the last certificate. In each case Ms Shakir ticked the “no” box and then signed it. However, for a large portion of that time she was working in paid employment. 

Held by the Commission 


Commissioner Newall found that, for a certain period while claiming workers compensation on the grounds of incapacity, Ms Shakir was effectively working full-time for a private employer. 

“There was a deliberate concealment from her employer by Ms Shakir, 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,” the Commissioner ruled. 

He held that such behaviour was misconduct because it struck at the heart of the employment relationship, which is based on honesty and trust. 

“That is why deceit by an employee of an employer is a serious matter, whether or not it is associated with fraud, and will generally disincline the Commission to intervene in a dismissal,” Commissioner Newall said. 

He found that the dismissal was entirely justified and so dismissed Ms Shakir’s application. 

Employer’s decision-making criticised


While it was held that the dismissal was justified, the employer was criticised by the Commissioner for flaws in its decision-making.

The Commissioner noted that the employer was unable to justify some of its allegations that Ms Shakir had engaged in misconduct. Two of the certificates, one on 23 August 2014 and the other on 13 September 2014, were presented before Ms Shakir started work with the private sector employer on 15 September 2014. 

The Commissioner held that those two certificates in particular – which the employer tried to rely on – had no capacity to deceive anyone and did not give rise to any payments. Why this was not apparent to the third-party workplace investigator or to the employer's decision-maker was both “unexplained and inexplicable”, the Commissioner said. 

He added that a person who had the authority to dismiss employees for misconduct couldn't simply accept an investigator’s finding as the basis for firing a worker. Commissioner Newall said the decision maker was obligated to come to an independent decision. 

“Dismissing an employee is a serious matter and a person holding the delegation to do so must, in my view, form an independent view that misconduct has occurred before considering disciplining an employee for misconduct… It is not sufficient to proceed by blindly accepting findings made by an investigator,” the Commissioner said. 

Shakir v Department of Family and Community Services [2017] NSWIRComm 1040 (13 July 2017)

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