Planned sickie not fraud

Posted by Andrew McGiffert |12 Feb 11 | 0 comments

A James Hardie worker was dismissed after taking a sick day that he had marked on his roster in advance, the worker was reinstated after Fair Work Australia found insufficient evidence to justify allegations of fraud.

The worker was employed by James Hardie for over 10 years before the organisation alleged serious misconduct amounting to fraud resulting in the workers dismissal.

A senior employee had noticed a note on the workers roster, stating ‘sickie’ over the night shift on the 10th of August 2010, prior to the date. The worker had written the note as a reminder to himself to take the shift off because his wife’s carer was unavailable that day. He then forgot to fill in the appropriate leave form. The workers wife suffered from Parkinsons disease and other chronic health problems requiring regular care.

Coincidentally the worker became sick with food poisoning on the 10th and had his wife phone his supervisor to inform him that he was ill, when questioned later the worker stated that he had asked his wife to phone because he was sick and denied that he did this so he would not be asked questions by his supervisor.

Following his next shift back at work the worker was questioned by senior James Hardie managers about recent performance issues, during the conversation he was also questioned about his absence on the 10th and the ‘sickie’ note that hade been made on his roster in advance. After investigation and consideration James Hardie terminated the workers employment, finding that “he had conducted himself in a fraudulent way and misled James Hardie, which amounted to serious misconduct”.

During the FairWork proceedings Commissioner Asbury said she was not satisfied the worker engaged in serious misconduct amounting to fraud. There was a “degree of coincidence” involved in the workers explanation, but his account was “at least” as likely as his employer’s assumption of fraud.

Given his 11 years of service and otherwise unblemished record, the worker should have been given the benefit of the doubt, Commissioner Asbury found, ordering his reinstatement and payment of lost remuneration.

For further information regarding the case click here to view the transcript

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