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FWC deems pre-emptive truck driver dismissal unfair

Driver sacked on employer's assumption he was about to commit fraud


Employers must not base termination on hypothetical future scenarios, the Fair Work Commission (FWC) rules, after a truck driver won an unfair dismissal case over a dubious fraud allegations.

Hinterland Toyota must now pay casual driver David Rode $19,500 for his sacking over ‘jovial comments’ about making a WorkCover claim for an injury sustained while cleaning his truck.

In March 2020, Rode was stood down until further notice due to Covid-19 downturns.

On the same day, “while getting out of the truck he slipped on the side of the driver’s seat and hit his tail bone on the trucks’ door locking bar”.

He later told a car detailer of his work situation and incident, allegedly joking that “now would be a good time to make a WorkCover claim”, though adding “hopefully I am back at work soon”.

The detailer reported the incident to his supervisor and provided a different version of events in a statutory declaration, including that Rode asked him to be witness to a WorkCover claim.

Rode was sacked via email for “allegedly [being] about to attempt a fraudulent worker cover claim toward Hinterland Toyota”, alleging CCTV footage rebuked his injury claims.

He disputed the evidence, stating he did not take any steps to make a WorkCover claim, did not visit a doctor or report any injuries, and that the incident would not have been visible from the angle of the CCTV footage.

How a defective seat injury led to a truck driver payout, here

Rode also argued he was treated as “guilty” from the outset and was not granted a proper investigation process.

In siding with Rode, the FWC ruled the dismissal as “problematic”.

“To dismiss someone for something of which there is no certainty, and which may never eventuate, is clearly unconscionable,” FWC deputy president Nicholas Lake says.

“Further to say that the trust with the employee has been irrevocably broken through an action that did not occur and is disputed whether the intention was ever going to be acted upon further stretches the boundary of fairness.

“Whether the actions of the Applicant were part of a fraudulent scheme that upon reflection he did not pursue, or whether it was a simple workplace humour, the employer actions were presumptive and based on flimsy evidence provided by one employee and video evidence that did not indicate that a WorkCover claim was imminent.

“An attempt was made to bolster a highly speculative allegation of purported fraud which had not yet occurred, with a hasty and poorly conducted investigation.

“This cannot be classified as a valid reason for dismissal.”

FWC also asserts employees are entitled to make WorkCover claims when injured in their line of work.

“Any claim that is made and the appropriate application completed is assessed by the agency and it is they who determine whether there is substance to the claim or not.

“For the employer to pre-emptively determine that the claim was bogus is overreach of a significant scale.”

Rode, eligible for JobKeeper subsidies, was awarded 26 weeks’ pay for the period from his dismissal in April 2020 at $750 per week, totalling $19,500. 


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