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bad apple

Worker who 'faked' injury loses unfair dismissal case after private investigator spots him carrying child

The worker told his bosses that he felt a sudden and sharp pain to his back.

A FRESH PRODUCE firm sacked a man after it concluded that the worker had faked a back injury when lifting a box of apples.

The Polish man sued for unfair dismissal but the Workplace Relations Commission (WRC) has upheld the company’s decision and found that the dismissal was fair, likening the man’s actions to “stealing” from the company.

In the incident on 11 September 2016, the quality controller made a sound and said “Oh my back” when lifting a box of apples in the company’s pack-house.

The worker told his bosses that he felt a sudden and sharp pain to his back and that the pain was so bad that he had to drop the box.

The Polish worker remained on sick leave for six weeks in spite of two company doctors stating that he was fit to return. However, the man’s GP continued to state in medical certs that he was not fit to return.

The incident took place on the first day of a new roster for the worker as up until then the company had accommodated himself and his wife to work opposite shifts and in this way they were able to cover child-care for their daughter.

After reviewing CCTV footage of the  incident and hiring a private detective to follow the employee while off-sick, the firm instituted disciplinary proceedings resulting in the company sacking the man in December 2016 after more than 10 years service with the company.

In the dismissal letter on 15 December, the company’s operation manager said that no workplace accident occurred “and you fabricated the incident and the injuries you allege to have sustained”.

The manager said that this alleged incident “was manifested on the back of the removal of a special roster requirement”.

The company’s health and safety manager said that CCTV footage of the incident showed the worker lifting and dropping the box of apples in a “staged and orchestrated way”.

A company doctor examined the worker on 22 September and recommended that he return to work.

She said that the worker under examination “could not perform any movements of his lower spine yet had no difficulty in picking up his daughter and carrying her up and down the stairs on several occasions. In my opinion he did not make a good effort throughout the assessment”.

On 8 December 2016, the company received a letter from the worker’s solicitors calling upon it to admit liability for “personal injuries as a result of repetitive work practices”.

In direct evidence before the WRC, the worker stated that when lifting the box of apples, he felt a pain in the middle of his back and he dropped the box onto a trolley.

He said that he tried to straighten up and walk around and that the exercise of walking was helpful, but the pain got worse after sitting down.

He said that he wasn’t aware that he was later followed by a company private detective.

In her ruling, WRC adjudication ffficer, Catherine Byrne said that CCTV footage of the incident shows the man “lifting and dropping the box, with no sign of distress, shock or surprise in the immediacy of an injury”.

The company hired a private detective due to concerns it had over the man’s back injury claim and Byrne said that “one week after the incident, a private detective observed the complainant carrying his daughter”.

Byrne also noted that the apple box’incident took place on the first day of the normal roster which created childminding problems for the worker and his wife.

In her findings, Byrne found that was reasonable for the company to conclude that the worker “was not injured to the extent that he claimed, or possibly to any extent and he should have returned to work as recommended by the first company doctor on September 22nd”.

She said: “Every workplace injury has significant and negative implications for employers, from the perspective of employee confidence, the time and cost of investigations, litigation, public exposure and other factors beyond the scope of this decision.

A fabricated injury usurps resources to an even greater extent than a genuine injury. The conduct of the complainant in this case demonstrates a disregard for the employer’s resources in the same way as an employee engaged in stealing and as a result, to use the phrase from the letter of dismissal, ‘the trust that is necessary for the employment relationship has been eroded’.

“It is my view that the decision to dismiss was reasonable and proportionate to the conduct of the complainant in this instance.”

The worker told the tribunal that he remains on job seekers’ benefit despite applying for a lot of jobs and doing courses.

He said that since he was dismissed he misses his wages, feels depressed and has been treated by a psychotherapist.

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