The Case

CT Freight Pty Ltd (CT Freight) employed Mr Moody as a Warehouse Supervisor. In July 2016, Mr Moody suffered a back and hip injury, and made a workers’ compensation claim. In August 2016, Mr Moody returned to work on reduced hours, performing restricted duties. In December 2016, Mr Moody returned to full hours.

In April 2017, CT Freight was advised that Mr Moody was playing golf during the time he was working reduced hours and performing restricted duties. CT Freight conducted a Google search, which revealed Mr Moody had participated in a golf tournament on 27 September 2016.

CT Freight met with Mr Moody who stated on 27 September 2016 that he “may have played nine holes”. Thereafter, CT Freight showed Mr Moody a copy of the results from its Google search.

CT Freight commenced a disciplinary process alleging Mr Moody had wilfully and deliberately breached his return to work plan. CT Freight alleged that Mr Moody had engaged in activities that contravened his certified medical restrictions and created a risk of aggravating his injury. CT Freight terminated Mr Moody’s employment on the grounds of gross misconduct. Mr Moody commenced unfair dismissal proceedings.

The Verdict

In the Fair Work Commission (FWC), Mr Moody argued there was no valid reason for the termination of his employment. On 27 September 2016, he was on annual leave. He played nine holes of golf in a golf tournament, during which he modified his style of golf play so it did not affect his physical recovery or work activities. Mr Moody asserted his doctor permitted him to play golf and it was not a breach of his return to work plan to do so.

CT Freight argued there was a valid reason for the termination of Mr Moody’s employment and he had been afforded procedural fairness. CT Freight argued that Mr Moody’s explanation was not convincing, especially the assertion he had modified his golf style to play in the golf tournament.

The FWC held there was not a valid reason for the dismissal on the following basis:

• CT Freight did not obtain medical evidence about whether Mr Moody’s modified golf style would conflict with his physical limitations and return to work plan;
• only a medical practitioner could make an objective assessment of whether playing golf was inconsistent with Mr Moody’s medical restrictions and the return to work plan;
• CT Freight insisted that Mr Moody had played 18 holes of golf and believed Mr Moody had lied about playing only nine holes, using this as a basis to argue Mr Moody had lost their trust and confidence – however, the evidence available to the FWC was that nine holes of golf, in a modified style, had been played; and
• even if Mr Moody had breached the return to work plan, the FWC was not convinced the appropriate response to such conduct was the termination of Mr Moody’s employment.

Given there was no valid reason for the termination of employment, the FWC determined it was unfair.

The Lessons

It is important to note that an employer’s belief that a valid reason for dismissal exists will not be sufficient where additional evidence is required. In this case, the employer was not qualified to provide an opinion on medical issues. It should have sought and obtained medical evidence prior to dismissing the employee.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.