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Recap

Full appeal decision here.

My previous report here.

The Applicant in this matter a corrections officer win a jail was dismissed for using force against a detainee who refused to cooperate. We learn from this decision that corrections officers have an extraordinary duty to restrain themselves from restraining the detainees.

The Applicant commenced employment with the Respondent in July 2007 as a Correctional Officer.

On 18 June 2018, the Applicant was involved in an incident at the workplace in which he used force on a detainee while trying to return the detainee to his cell. The incident was captured on closed-circuit television (CCTV).

The respondent company in this matter requested and was granted anonymity in this private hearing.

The Applicant was suspended with pay on 20 June 2018 and was advised the next day in writing that: The subsequent investigation report dated 31 October 2018 concluded that on the balance of probabilities that the allegation had been made out.

The appeal

The applicant had eight grounds on which the Commissioner’s decision ought to be overturned.

Of the eight grounds, the Full Bench of the Fair work Commission upheld five; stating that the Commissioner drew the wrong inferences from unchallenged or incontrovertible evidence as to the primary facts, with the proper conclusion should have been that the use of force by the applicant could not reasonably be characterised as unreasonable or unnecessary.

Re-determination of the applicant’ unfair dismissal remedy application

The FB:

“It is next necessary for us to determine whether the applicant’ dismissal was harsh, unjust or unreasonable…we find that there was no valid reason for the applicant’ dismissal related to his conduct or capacity. For the reasons we have earlier set out, we do not consider that the use of force by the applicant upon Prisoner X was unreasonable or unnecessary.

“Although the particular force manoeuvre used by the applicant may not have been the most appropriate for the situation and may not have conformed to his training, it is necessary to take into account the fact that the applicant was faced with an aggressive and psychiatrically ill person, feared he was about to be assaulted, was required to make a split-second judgment as to how to respond, and did not inflict any injury upon Prisoner X.

Taking the above matters into account, we find that the applicant’ dismissal was unjust and unreasonable because there was no valid reason for his dismissal, and harsh because of the factors we have considered in respect of s 387(h). Accordingly, we find that he was unfairly dismissed”.

Remedy

The FB decided to delay the “remedy” decision, instead allowing time for the parties to “settle” the matter by submitting their proposal(s) within 14 days.

The BIG question here is: will the applicant be reinstated?

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My original report is here.

Appeal decision in full is here.

Background

This matter saw the respondent subjected to lost business opportunities due to its lack of proper processes, which were not assisted by (according to the Commissioner) by an unqualified HR Manager. There were seven witnesses called over two days of hearing, which was preceded by witness statements and, of course legal costs. The falsification of the medical certificate was discovered after the dismissal, and the Commissioner discounted the compensation paid by 30 percent because of this.

The company appealed

The appellant (ie the company) provided 16 grounds why the original decision should be set aside/quashed.

Grounds three to seven related to the falsification of the medical certificate:

“3. The Commissioner erred in failing to have regard to the Appellant’s submissions and the Respondent’s admission that the Respondent dishonestly advised the Appellant that she would be attending a specialist appointment which involved a 3-month waiting list and would therefore require time off work, when instead the Appellant attended a job interview.

“4. The Commissioner erred in [considering]…that ‘there was no financial gain for the Respondent by producing the medical certificate’ in determining the seriousness of the Respondent’s misconduct.

“5. The Commissioner erred in concluding that the act of falsifying a medical certificate was not wilful or inconsistent with the Respondent’s contract of employment…

“6. The Commissioner erred in concluding that producing a falsified medical certificate warranted disciplinary action, not termination of employment with or without notice…

“7. The Commissioner erred in failing to apply the reasoning in Halina Bluzer v Monash University [2017] FWCFB 4032 and Tokoda v Westpac Banking Corporation t/a Westpac [2012] FWA 1262 in relation to falsification medical certificates”.

The Full Bench in determining the application for appeal, noted that:

“It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal”.

[Ed: puzzling piece of logic?]

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The Full Bench concluding that:

“We are not satisfied that it would be in the public interest to grant permission to appeal. [the dismissed employee] unfair dismissal remedy application was determined on the basis of its own particular facts and raises no issue which warrants further appellate examination in the public interest”.

In relation to the falsification of the medical certificate:

“We do not consider that the issue of the falsified medical certificate involves any issue of principle or general application, contrary to the contention of [the company]. The decisions referred to [the company] in this connection do not establish any general principle of universal application that the falsification of a medical certificate will always constitute a valid reason for dismissal irrespective of the circumstances. Bluzer v Monash University was concerned with the purely factual consideration of whether the applicant for an unfair dismissal remedy in that case had falsified medical certificates as alleged by her employer. In Tokoda v Westpac Banking Corporation the falsification of a medical certificate was found to constitute a valid reason for dismissal, but it is notable that finding was in part based upon a non-acceptance of the applicant’s evidence that she did this “as an act of desperation” and was forced to falsify the certificate because she was being treated unfairly and bullied by her managers”.

 Commentary

Quite frankly, the mind boggles…in my opinion falsifying a medical certificate is fraud – pure and simple. If were to be asked the question of whether to dismiss an employee for such an instance (subject to due process), I would say, as they do in the classics “all day every day”. How on earth can trust be maintained where an employee has provided a fraudulent medical certificate to cover the fact that they attended a job interview elsewhere from the company? As I said: “the mind boggles”.