Transport Appeal Boards New South Wales Medium Neutral Citation: Hammoud v RailCorp [2012] NSWTAB 17 Hearing dates: 23/04/12, 07/05/12, 09/05/12 Decision date: 20 June 2012 Before: Ritchie C (Board) Decision: Catchwords: Manager terminated-claimed unfit to attend work-surveillance footage showed appellant carrying out physical work doing home renovations- allegation proven-appellant claimed termination harsh -found termination not harsh-as a manager his responsibility to uphold standards. Category: Principal judgment Parties: Taleb (Tony ) Hammoud(Appellant) Rail Corporation of NSW (Respondent) File Number(s): TAB 1of 2012 DECISION Introduction 1Mr Taleb (Tony ) Hammoud (the appellant) filed a Notice of Appeal-Transport Discipline on 28 December 2011 against his dismissal by Rail Corporation New South Wales( the respondent). At the point of termination the appellant held the position of Shift Manager, Presentation Services Division. 2The appellant was notified by the respondent of his termination on 14 December 2011. Issue(s) 3The allegation by the respondent was expressed in the following terms: On 29 March 2011, when Mr Hammoud submitted a WorkCover Medical Certificate which stated that he was unfit to perform any work from 28 March 2011 to 8 April 2011 due to " left knee soft tissue injury" he provided false and/or misleading information to RailCorp. The particulars of the alleged breach are: a) Mr Hammoud submitted a WorkCover Medical certificate for the period of 28 March 2011 to 8 April 2011. b) The WorkCover Medical certificate stated he was unfit fro any work during this period due to " left knee soft tissue injury." c) On the 2nd, 4th and 5th of April 2011, at his premises at 103 Wycombe Street Yagoona, which is currently undergoing renovations, Mr Hammoud was observed carrying out various physical activities and movements with no apparent sign of any discomfort, restriction of movement or injury to his left knee. d) Mr Hammoud was not unfit to perform work for all the dates covered in the Work Cover Medical Certificate. Respondent's case 4The appellant notified RailCorp Injury Hotline on 15 March 2011 that he had injured his right knee whilst working at Parramatta. He reported that when lifting a drum his knee " made a clicking noise". He continued to work. The appellant did not attend work from 22 to 25 March 2011 due to an acute viral infection and insomnia. This absence was supported by a medical certificate. The appellant had rostered days off on 26 and 27 March 2011. The appellant did not attend for work on 28 March 2011 and the next day provided a WorkCover Certificate stating that he was unfit to work from 28 March 2011 to 8 April 2011 due to left knee soft tissue injury. The appellant took RDO's on the weekends of 2 and 9 April 2011 and an Accrued Day Off on Monday 11 April 2011. He provided a final WorkCover medical certificate stating that he was fit to return to duty from 11 April 2011. The appellant returned to work on Tuesday 12 April 2011. 5As a consequence of some doubt over the injury of the appellant, the matter was referred to the RailCorp Investigations Unit for disciplinary investigation. An outside company was engaged to obtain surveillance where appropriate. The report of this company dated 7 April 2011 concluded that the appellant was observed to engage in strenuous physical activity, much of it putting pressure on both knees , with no sign of discomfort or injury. 6On 21 April 2011 the appellant was notified that a disciplinary investigation was being conducted into the possibility that he had breached the Code of Conduct. On 13 May 2011the appellant received an allegation letter seeking his response to the allegation. The appellant responded by undated letter agreeing to allegation particulars a) and b) as correct and refuted allegation particulars c) and d). He submitted that he was experiencing pain, discomfort and restriction of movement. The appellant was invited to attend a voluntary disciplinary interview but declined. The respondent's investigator found that the allegation to be substantiated. The Investigation report was forwarded to the RailCorp's Disciplinary Review Panel (DRP) for consideration. 7 A preliminary recommendation was that the appellant be dismissed. A letter dated 2 November 2012 was sent to the applicant setting out the recommendation. The appellant's union responded on 30 November 2011. The response was reviewed, the DRP re-convened and the preliminary recommendation was confirmed. The appellant was advised that he was dismissed without notice effective 14 December 2011. 8 Ms Maria Joshua stated that she is employed by the respondent in the position of Case Manager, Workers Compensation Services. She outlined the appellant's reporting of the injury and her contacting the appellant's supervisor. On 17 March 2011, she spoke to the appellant and he described how the injury occurred. He stated that his knee was improving and that he did not intend seeking medical attention at this stage. She advised him to obtain a Work Cover Medical Certificate as a matter of course. 9On 1 April 2011 she received via email a copy of an initial Work Cover Medical Certificate dated 29 March 2011 in regards to the appellant's injury notification. The certificate stated that he was unfit for work from 28/3/11 to 8/4/11 due to a left knee soft knee injury. 10That same day she spoke to the appellant who advised her that he had been working and putting up with the pain but was concerned he would do more damage if he continued to lift heavy objects. In a file note of the conversation Ms Joshua stated that she advised the appellant that selected duties may be available for him (office duties) and to discuss this with his nominated treating doctor. 11She stated that on 1 April 2011 she received an email from Mr Giuseppe Liantonio acting Operations Manager at the appellant's work location. The email gave doubt to the appellant's injury as he may have sustained the injury while performing work at his house. She then spoke with her manager and as a consequence an outside company Lyonswood Investigation and Forensic Group was engaged to conduct surveillance on the appellant. 12On 7 April 2011 she received a report on the surveillance. Based on the report the respondent reasonably excused the workers compensation by the appellant on the grounds that the injury was not work related. On the same day she sent to the applicant a copy of the report and other documents. These documents had to be sent again on 14 April 2011 as the appellant did not receive the first post. 13Also attached to another statement of Ms Joshua (exhibit 2-annexure N) was a file note of another conversation between her and the appellant dated 8 April 2011. She states that the appellant advised her that he had "been sick in bed all week with the flu and had not started on any physio". He also inquired about his claim and he was advised that he was to receive correspondence that it would not be accepted. She noted that the appellant became upset and said he would see a solicitor. 14On 10 April 2011 she provided RailCorp Investigation a copy of the surveillance footage. 15A final WorkCover NSW Medical certificate dated 11th April 2011 cleared the appellant to resume full shift. 16On 18 April 2011 the appellant contacted Ms O'Sullivan ( file note exhibit 2 -annex.H) and questioned the decision. He believed that the respondent was calling him a liar. He was advised how he could submit a claim for review of the decision. 17Dr Ian Smith gave evidence and a report by him (dated 3 August 2011) was made an exhibit. Dr Smith was provided by the respondent with surveillance DVD of the appellant covering 2, 4 and 5 April 2011. The doctor advised that he viewed all the video footage that was supplied to him. After viewing the DVD the doctor was requested to answer a number of questions posed by the respondent. At no point did he physically examine the appellant. 18The doctor was advised that the appellant held the position of Presentation Services Shift Manager. He was advised that the role is mainly one of a managerial position with limited hands on cleaning required. He noted in his report that : It is estimated that 90% of the position is managerial (sedentary) and 10% hands on cleaning, the maximum amount of weight that would need to be lifted is a 20L chemical drum. The 20L chemical decanting activity is usually not urgent and can wait to more staff are on hand (ie the task can be avoided by the presentation services manager). 19Within this report the Doctor identified various dates and times where he observed the appellant on a building site easily stepping over materials, opening up a heavy wire mesh security gate, unloading building materials from a truck, leaning over a balcony with a large roll of plastic, bending down and doing a deep squat using both knees, walking quickly, pivoting on his knees with his facial expressions indicating no overt distress. 20He deduced that the appellant did not display any signs of impairment or incapacity and that he was engaged in a greater level of physical activity then he would be required to undertake in his normal duties. In what he saw the doctor stated that it would be possible for a person to carry out the range of tasks with any significant knee injury. He said that knee injuries typically cause difficulty pivoting, inability to squat and kneel and to normally go up stairs or ladders. He saw the appellant easily undertake all these duties. He was asked the appellant's fitness for work from 28 March to 8 April 2011. He stated: The film, principally on 2nd April 2011 and 4th April 2011, demonstrates that the claimant did not have any knee problem which would preclude his pre-injury duties on those days. By inference he would have been fit from the period of 2nd April up until 8th April 2011. The claimant's functional capacity on 2nd April and 4th April does not allow any comment in relation prior to that though clearly if he did not have a problem with his knee prior to that , certainly by 2nd April he had made what appears to be a complete recovery. A knee injury could potentially restrict physical work, but it would be very unusual not to be able to do full hours of suitable duties. Given his activity during the observation period and the fact that injuries do not suddenly get better it is my opinion that he would have been at least fit for modified normal duties in the period prior to the period of observation. 21The doctor expressed in his statement (exhibit 7) that he had read the Injury Management Assessment Centre (IMAC) task analysis for the Presentation Services Shift Manager and the comments of the appellant at paragraphs 15 and 16 of his statement. He stated that his opinion had not changed. In his view the DVD showed : " the ability to fully, rapidly and sustainably squat under load, and pivot on the left knee which is inconsistent with any significant knee dysfunction. The DVD does not show any protective behaviour in relation to the left knee. In general, even a low level knee problem could potentially cause some difficulty with prolonged , sustained or excessive physical activity. Irrespective of the exact job description, in my view, he would have at least been fit to undertake full time suitable duties. 22In giving evidence Dr Smith responded to questions posed as the DVD was shown in Court. He stated that the appellant was shown lifting up a metal fence that appeared quite heavy and walked backwards holding the fence, bends from the waist, adjusts some plastic sheeting . He stated that the appellant bent both knees in lifting the fence. He is seen doing a deep squat on both knees as he adjusted and pulled on the fencing. He then stood up and walked away naturally. On another day the appellant did a deep squat on both knees whilst measuring up with his arms, leaning over his knees. He maintained this position. He then got up unaided from the squatting position using both knees. 23In responding to a question Dr Smith stated in part: All that I can say is that when you look at the footage as a whole he's happy, he's animated, he's not engaging in protective behaviour of the knee and my view is that the impact of the killers on his capacity to function doesn't appear to be great. 24In cross examination Dr Smith stated that there were two main reasons how he had come to his conclusion. With a significant knee injury he stated that one has a reduced capacity to squat and to kneel and pivot on the knee and secondly you would normally see some protective behaviour for the injured knee. He did not see any evidence of that behaviour throughout the film. The doctor accepted that the physicality of a person's job would be relevant in forming an opinion on whether someone with a knee injury could safely carry out his job. Doctor Smith considered that he could not see what the appellant was lifting off the back of a truck be it a bag of cement or anything else. He did agree that at one point the appellant had a "slightly altered gait" at 10.42 am on 2nd April 2011, but discounted it because the appellant then went into a very deep squat. The doctor discounted the appellant placing his hand on his left leg as a sign of discomfort. The doctor stated that what he saw from the video the appellant would have been able to do some manual work. He believed that based on the IMAC report he believed that the appellant could do that job. He stated that the appellant can obviously push, squat, kneel, pivot, twist and climb. The doctor in referring to the appellant's WorkCover certificate stated that the management plan was: " Rest, NSAID ( non-steroid anti-inflammatory drugs) analgesics and refer for x-ray." In considering the prescribed management plan and the video, the doctor did not believe the appellant was following it. He stated also that he believed that the appellant could drive even long distances with necessary stops if required. 25Also incorporated in Mr Allan Pollard's statement were two medical reports. One from Dr Paul Miniter dated 8 August 2011 and the other from Dr Ronald Clark dated 13 July 2011. Dr Clark's report comments on a small cyst situated between the posterior aspect of the medial collateral ligament and the medial femoral condyle The cyst was leading to a pressure erosion on the side of the bone. Dr Miniter's report directed to Ms Kelly Brooks, Case Manager, RailCorp Workers Compensation Services, stated that he: "finds it difficult to understand how the twisting injury could have been the cause of his current presentation if there was no evidence of meniscal pathology and the cyst that is present over the medial femoral condyle is clearly a long -standing issue". He went on to say that : " this type of lesion would cause trouble whether there was physical activity required or not". He also stated : " His current left knee condition is not likely to be associated with the activities and tasks of work or for that matter the activities or tasks associated with building a house." 26In final submissions the respondent stated that to some extent it was irrelevant as to whether it was a workers compensation medical certificate or a regular medical certificate. It was submitted that the information he provided to the respondent that he was unfit for duty on the dates was false and misleading. It was their submission that the appellant was fit for duties or at the very least suitable duties. The surveillance recording showed the appellant working pushing, pulling, lifting , squatting walking and generally moving around with very little signs of discomfort. They also submitted that whilst the respondent advised Dr Smith that the appellant's was 90% administration and 10 % physical, subsequent investigations involving an analysis of the role suggested it to likely be 50/50. 27 They also submitted that the subject of suitable duties was raised by Ms Joshua on 1 April 2011 and that the appellant stated that he would speak to his doctor. The appellant said that because he had only three days left on his certificate and he was unable to get to see his doctor prior to returning to work but due to the surveillance film, the respondent knew that he had every opportunity to speak to his doctor about alternative duties. His failure to do so at a time when he was performing physical tasks, such as those on the footage can only be seen as knowingly misleading the respondent that he was unfit for duty. 28 It was also submitted that the file note of Ms Joshua followed the same format as Ms O'Sullivan, neither had a motivation to write up their file note in any other manner than any other note. It was stated that the appellant was being paid by the respondent to rest and he did not. Instead he was building his house. The managers who came to give evidence on behalf of the appellant had not seen the surveillance film. If reinstated it would send a message that it was okay to work on your house while claiming sick leave. 29In reply to the appellant's final submission it was stated that in providing the medical certificate the appellant is saying " I'm unfit for duty for this period of time." If he had provided the certificate and spoke to his manager and or workers compensation and said " I'm not sure I need this full amount of time off or there are certain tasks I can do", that would be a different scenario. Appellant's Case 30In a written summary of the appellant's case it was stated that he denied providing false and/or misleading information to the respondent when he submitted a medical certificate for the period covering 28 March until 8 April 2011. They submit that the information provided to the respondent by the appellant was true to the best of his knowledge at the time. Did he knowingly provide false information? The information came directly from Doctor Sellathuri who examined and diagnosed the appellant. The information was true and accurate in that the appellant was not fit for work during that period. Even if charges against the appellant could be proven the dismissal would be harsh in the circumstances. The injury to the appellant's knee on 15 March 2011 was witnessed by a fellow worker Mr Yeldalo. The injury was reported as per procedure. The appellant then went to see his doctor and a medical certificate was obtained and provided to the respondent. The appellant then followed the doctor's direction and did not attend for work. The appellant was not trying to access workers compensation but utilise his accrued sick leave. it was submitted that the video footage does not show and could not show that the appellant was fit for work. It was submitted that the appellant did not carry out an office job but as a Shift manager it was physically demanding and exhausting. It involved a lot of heavy lifting , carrying , pulling and pushing of different pieces of equipment and cleaning materials. The appellant was on pain killers and had his knee strapped at the time of the videoing. 31 The medical reports of Dr Clark in June 2011 concluded that the appellant : "most likely does have a medial meniscal tear and this could have happened in the manner described." In July 2011 Dr Clark stated that the appellant did not have a meniscal tear but did have a cyst leading to pressure erosion on the bone. The respondent acted on an email from a manager who doubted whether the appellant had injured himself at work as he was an owner builder. It was stated that the treatment of the appellant was unfair because of his excellent service record. The termination of the appellant without notice was a harsh outcome taking into consideration the other disciplinary options available. The appellant sought reinstatement to his former position with back pay and continuity of service. 32The appellant by way of summons had a number of employees of the respondent give evidence. 33Mr Edmund Yeldalo stated that he holds the position of Shift Manager with the respondent with approximately 110 employees reporting to him. Mr Yeldalo filed a statement which became an exhibit in the proceedings. He stated that he witnessed the appellant injury his left knee at work whilst loading cleaning materials onto his company vehicle. He stated that he saw the appellant wince and he was told that he had just hurt his knee. He accompanied the appellant into the manager's office to report the injury. In considering the job that he and the applicant did, Mr Yeldalo stated that the work varies from week to week with respect to the work done. In comparing administration versus physical he believed it would 20% versus 80%. Items over 25 kilos would require assistance if it was available. 34Mr Ali( Eddy) Daher filed a statement and advised that he works for the respondent and is currently Project Manager, Operations Coordination Unit, Service Delivery Group, Operations. Previously he was the Station Manager at Martin Place and from July 2009 until October 2010 he acted in the position of Shift Manager, Presentation Services. He stated that the position of Shift Manager was a physical one especially during "spring cleaning" of stations , upgrading store rooms and the physical training given to new staff on site. He stated that if an employee reported to him that he could not carry out a task because of a physical ailment then he would give him alternative work. He also stated that a level 5 investigation had to be completed as soon as possible after an injury occurred and that it required both the injured employee and his manager to complete the form, both parties. The reason he went back to being a Station Manager after doing the Shift Manager's role was of the physicality of the Shift Manager's duties compared to that of the Station Manager yet both being on the same rate of pay. 35Mr Joseph Mercierca stated that he had been employed by the respondent for 32 years. He is currently acting in the position of "Project Manager" within the Cleaning Reform Project. Prior to this he held the position of "Operations Manager North West. Approximately 300 employees report to him in the Operations Manager role. In this role he stated that he was familiar with the work of the Shift Managers. In his view the break up between administration versus physical is 20% versus 80%. He stated that this role requires the movement and delivery of consumables, including 20 to 25 litres drums of disinfectant, vacuum cleaners, high pressure water blasters and other such items. He had observed the appellant doing this work. In giving evidence he stated that the appellant had rang him at home to advise him that he had injured himself. He confirmed that a Shift Manager would be well aware of the need to identify risks involved in manual handling in the work place and make assessments and prioritise any tasks that would indicate a potential risk. 36Mr Sam Nawar stated that he has been employed by the respondent for 12 years and is currently employed as the Assistant Area Signal Box Manager Homebush/Strathfield. He was previously a Shift Manager in Presentation . It was his view that the position of Shift Manager involved a lot of physical work. The work included the movement of heavy equipment such as hoses, water trolleys and gurneys and the removal of rubbish. He also stated that injured employees are not expected to come to work and ask for suitable duties. It is up to the manager of the employee to provide a letter to the treating doctor offering to accommodate the employee's return to work based on the doctor's advice. A "Dear Doctor" letter. In giving evidence Mr Nawar had participated in safety briefings including the seeking of assistance to carry out any physical tasks that might be difficult or represent a hazard. If an officer was on alternative duties then he would not expect the officer to do any task that they felt was beyond them. 37Mr Giuseppe Liantonio stated that he is acting in the position of Operations Manager Presentation Services Division Northwest. The appellant reported to this person from 1 April 2011. It was he who at the request of his manager Mr Armstrong, the General Manager, brought to the attention of the respondent ( Ms Joshua) that the appellant was an owner/builder at that he may have injured himself whilst working on his house and not at work. 38He also stated that if an injury is reported then the employee's manager with the injured employee must complete a Level 5 investigation. He stated that he had been advised by an investigator that a Level 5 investigation had not been done, which he was unaware of, and was asked to get one completed. He stated that he sought to carry out a Level 5 investigation with the appellant but was unsuccessful. He said when he finally received a return phone call the appellant said that as they had knocked back his case he did not see the point in doing one. Exhibit 3 in the proceedings showed emails sent by Mr Liantonio to the appellant dated 21 April, 27 April and 29 April 2011 requesting the appellant complete a Level 5 application. 39On 29 April 2011 Mr Liantonio stated that he received a phone call from the appellant questioning him as to if he had sent an email to Ms Joshua lodging a complaint against him. As Mr Liantonio had been advised to say nothing about this email he denied sending the email. Unbeknown to Mr Liantano a copy of his email had been sent to the appellant. The appellant called him a "fucking liar" and to remember "what goes around comes around". The conversation also covered the non filling in of the Level 5 investigation. The appellant said that he was on leave at the moment and he did not wish to be contacted about it or he would claim harassment. 40Prior to this incident Mr Liantonio said that he had a good working relationship with the appellant. 41Mr Dimitri Hondros stated that he is a Customer Service Manager West for the respondent.. He stated that he has 14 direct station managers reporting to him and approximately 215 employees. He stated that he had written a reference for the appellant. He stated that the appellant when acting in the role of station manager at Blacktown had worked well with him. He was unaware that it was against the respondent's policy to provide a reference for an employee on letterhead. 42Mr Taleb (Tony) Hammoud filed a statement which stated that he commenced with the respondent in 1995 and at the point of termination was holding the position of Shift Manager, Presentation Services Division. He said that on 15 March 2011 whilst loading a respondent's ute with Mr Yeldo he lifted a 25 litre drum and felt pain in his left knee and heard a "clicking " sound. He reported the injury by calling the respondent's injury hotline. He continued working through the pain until on 29 March 2011 he saw his Doctor Dr Sellathuri. The doctor prescribed medication for the pain and advised him to rest his knee. He said the doctor asked him about what he did in his job and he told him. The doctor provided a medical certificate stating that he was unfit for work from 28 March 2011 to 8 April 2011. He provided the certificate to the respondent. He stated that he did not ask for a WorkCover medical certificate as he had no intention to pursue a WorkCover claim against the respondent. He wished to utilise his sick leave credits. He was shocked when he found out that he had been the subject of video surveillance as he had never made a WorkCover claim before and had not taken large amounts of sick leave. He denied that he was an owner-builder. He agreed that he was having renovations done to his home. 43He stated that during the period of the video surveillance he had his knee strapped and he was taking medication for pain relief as he felt pain and discomfort during this period. He denied carrying out heavy or hard physical work during this period. Even though he did carry out tasks as shown on the video surveillance that did not mean he was fit to perform an eight hour shift at work. He stated that the respondent did not have an understanding as to what his job consisted of in the degree of physical work involved. 44He stated that on the day of his conversation with Ms Joshua concerning suitable duties there were three days left on his certificate and he was unable to get in to see his doctor. He stated that he did not believe he was fit for work and therefore did not feel it was appropriate to turn up for work and claim payment. That was why he followed his doctor's advice and stayed home. He believed he was targeted by Mr Armstrong and Mr Liantonio. 45In giving evidence the appellant stated that he tried to lift a bag of cement off the delivery truck but placed it back and instead lifted 5 litre drums of Cemstick. In moving the fence outside his property he stated that it was not that heavy. He stated that he believed that he was resting his knee. He said that no manager from the respondent gave him a "Dear Doctor " letter to give to his doctor, therefore he could not say what his doctor may have done. He also did not believe that he could have gone to work and just not done the physical tasks because he believed he would be refusing duty. He said that on three occasions he was pushed to claim workers compensation but did not. 46The appellant stated that he did not complete a Level 5 investigation because he was never approached, even though he acknowledged that he had received the emails from Mr Lantonio requiring him to complete a form. 47In cross examination he stated that he did rest his knee on 2,4 or 5 April 2011. 48He also stated that his wife was the owner builder because he worked full time. 49The appellant agreed that in his written response to the allegations made by the respondent he did not mention that his knee was strapped or that he was on painkillers nor did he comment that the video showed him limping. 50The appellant denied that he asked a workers compensation officer of the respondent "Worker asked about his claim" as he had not put a claim in. The reason he said he got upset was because he had basically been called a liar. 51In responding to a question in re examination the appellant stated that whenever he squatted down he felt a pain. He stated that he didn't fully rest his knee and he agreed that he did not rest his knee as per the doctors instructions. 52The appellant denied that at any time he advised a respondent's representative that he was an owner builder. 53 In final submissions the appellant's representative sought to rely both on his verbal submissions and on his written submissions filed at the commencement of the case. It was questioned as to did the appellant knowingly provide false information to the respondent in that medical evidence stating he was unfit in circumstances where he was, in fact, fit for work. The contention put by the respondent is that the appellant is guilty of a breach because he was fit to attend for work. The appellant submitted the critical issue is did he knowingly submit false information to the respondent through the medical certificate. Did he have any reason to think that the information supplied was false. The only evidence was the surveillance film which was edited to support the respondents contentions. It was accepted by the appellant's representative that the appellant was not resting but does an employee get terminated for not following doctor's advice. 54 It was submitted that whilst it was open to the Board to infer that the appellant was foolish and too eager to do those things it is not open for the Board to necessarily infer that the appellant could not have been feeling pain when he made those movements. It was submitted that whilst the surveillance perhaps shows him to be foolish, it didn't show him to be breaching his obligations as an employee. In comparison to his work as a shift manager it was submitted that he was resting. No suitable duties were offered to the appellant and the appellant never made a claim for workers compensation. 55The appellant had sixteen years of an unblemished record and his comment to Mr Liantonio of " what goes around comes around" was said without malice and was not meant as a threat. The termination of the appellant in the circumstances appeared to be harsh " over such a petty offence". Consideration and Decision. 56The appellant stated that he injured his left knee on 15 March 2011 whilst at work and reported the injury via the respondents injury hotline. The injury and the reporting of it was witnessed by Mr Edmund Yeldalo. On 16 March 2011 Ms Joshua stated that she received notification from the injury hotline that the appellant had notified an injury. She sought to contact the appellant , leaving a message and contacted the appellant's manager Mr Mercierca who advised that the appellant had completed his shift on the date of the injury with no time lost and he was unsure as to whether the appellant was going to seek medical attention. On 17 March 2011 Ms Joshua spoke to the appellant who described how the injury occurred and was uncertain as to whether he would seek medical attention. He was advised that if he did he was to obtain a WorkCover certificate. The appellant did not immediately seek medical attention but on 29 March 2011 he went to his own doctor who provided the appellant with WorkCover medical certificate that indicated that he was unfit for work from 28 March 2011 to 8 April 2011 due to left knee soft tissue injury. The initial WorkCover certificate Management plan stated : Rest, NSAID, analgesics, refer for X Ray. 57On 1 April 2011 Ms Joshua stated that she spoke with the appellant who advised her of the outcome of his visit to his doctor. Ms Joshua stated that she advised the appellant that selected duties may be available for him (office duties) and to discuss this with his doctor. On the same day she received an email from Mr Liantonio who raised some doubt with respect to the appellant's injury. Ms Joshua then spoke with her supervisor , which resulted in surveillance taking place outside the appellant's home on 2, 4 and 5 April 2011. At this time the appellants home was being renovated. 58In correspondence dated 7 April 2011 directed to the appellant from Ms Joshua under the heading of Provisional Liability, it advised that provisional payments of weekly benefits and medical treatment will not be commenced. It outlined the reasons for this non acceptance and attached were documents including the email from Mr Liantonio and the surveillance report with photos. This correspondence was triggered by the receipt of the appellant's WorkCover certificate. 59On 8 April 2011 the appellant returned a call to Ms Joshua. He advised that he had been sick in bed all week with the flu and had not started any physio. He asked about his claim. He was told that a letter had been sent via the mail to him the day before explaining why "provisional liability had been excused" .Her file note stated that the appellant became upset as when he had questioned through his manager other persons claims, his requests were not taken on board. He stated he was going to see a solicitor. 60On 10 April 2011, Ms Joshua stated that she provided the respondent's Investigation Branch with copies of the surveillance footage provided by the outside investigation company. 61 When the appellant advised that he had not received the 7 April 2011 correspondence, a copy was sent out to him on 14 April 2011. 62On 18 April 2011 the appellant called a Ms O'Sullivan from the respondent's Worker's Compensation section. He stated that he had received the letter and was irate and not happy with it. The file note stated that the appellant asked that if he was unfit was he expected to be bed bound and as an owner builder he goes to let the workmen into his property. In his view he was being called a liar. Ms O'Sullivan's file note stated that the appellant again raised the issue of him advising the Workers Compensation section that other claims had been dodgy and no surveillance had been carried out. 63It is my finding that I prefer the evidence given by Ms Joshua and the contents of the file note from her and from Ms O'Sullivan than the evidence of the appellant. No reason was raised by the appellant as to why either Ms Joshua or Ms O'Sullivan would fabricate the contents of the file notes. As from the surveillance footage , I find that the appellant had not been in bed all week with the flu, that he had stated that he was an owner builder and from the contents of the two file notes it was his original intention to claim workers compensation. For what reason would he raise the issue of questioning other employees workers compensation claims if he himself had no intention of claiming workers compensation. 64A considerable period of time was spent in the Court room reviewing the surveillance footage. In detailed correspondence from the appellant's union dated 30 November 2011 ( part of exhibit 9) directed to the respondent it provided dates and times when " Tony is seen on the video limping or showing signs of discomfort and are not mentioned in the investigators report at all. It stated: 02/04/2011 10:42am clearly shows limping and showing discomfort 10:52am clearly shows a slight limp and discomfort 11:14 am clearly shows a slight limp and discomfort. 04/04/2011 08:32am clearly shows Tony putting his hand on his left leg showing discomfort. 09:12am clearly shows a slight limp and discomfort 09:42am clearly shows a slight limp and discomfort 13:14 clearly shows Tony struggle a little whilst walking 05/04/2011 10:47am clearly shows a slight limp and discomfort 11:54am clearly shows a slight limp and discomfort 11:54am clearly shows a slight limp and discomfort. 65Dr Smith made a report to the respondent which became an exhibit in the proceedings. In this report he stated that he had reviewed the surveillance footage and detailed his views. He stated that throughout the film he is seen to walk quickly, pivot on his knees and his facial expressions indicate no overt distress. He did not believe that the appellant displayed any signs of impairment or incapacity. In evidence he stated that the appellant did not show functional incapacity. He stated that if one had a significant knee injury one could not squat. He also stated that he could not comment as to whether the appellant had an elasticated bandage on, but he stated that he didn't have a supportive bandage on as he would not have been able to do the full flexion of the knee that he saw. The doctor also provided a statement which considered the appellant's actions as per the dates and times as expressed above. He expressed his view that other than 2 April 2011 at 10:42am when he stated that there are three shortened strides on the left leg whilst walking he did not notice anything else . He did not see the appellant engage in any protective behaviour of the knee. 66I also have reviewed the surveillance footage. At 10:42 on 2 April 2011 I agree that the appellant limped for three steps. With respect to the other dates and times as expressed above I could not see any discernible change in the appellant's gait. The surveillance footage showed the appellant fully squatting down on occasions and holding, and then rising without any sign of discomfort or change to his stride when he walked away. It also showed at 11:42am on 5 April 2011 the appellant jumping up trying to attach something overhead. It also showed the appellant bending and lifting a steel post which was part of a high meshed fence, placing it into a blue foundation station. 67 After examining the appellant , his doctor determined that resting his injured left knee was part of the medical plan to make it better. The period he then allocated for rest was from 28 March 2011 to 8 April 2011. 68 The appellant accepted that he had not rested his knee. By carrying out the physical activities as shown on the surveillance footage on uneven broken ground, that being a building site, the appellant was in my view definitely placing himself in harms way. 69The evidence from several of the witnesses summoned by the appellant stated that the job carried out by the appellant was a physical one with the break up of administration to physical being 20% to 80%. This was different to what was quoted by the respondent who initially stated 10% to 90% but later varied that to 50 % each. Dr Smith's stated that he was aware of the Injury Management & Assessment Centre ( IMAC) document which outlined the duties and physical requirements of the Presentation Services Shift Manager. It was his comment that this document would not change his views as expressed in his report. 70The appellant's representative stated that the termination of the appellant appeared to be harsh over such "a petty offence". I disagree that this was a petty offence. I also disagree with the submission that the appellant's obligation as an employee ended when he supplied the WorkCover certificate to the respondent. The appellant was on paid time off. His absence from work was legally allowed only because he had furnished a WorkCover medical certificate to his employer. In accordance with what was expressed in the WorkCover medical certificate one could easily conclude that the respondent's expectation was that a manager of theirs would follow the Management Plan as expressed. As he was on paid leave, it is my view that there existed an obligation on the appellant to adhere to the WorkCover medical certificate's Management Plan. Rest meant rest. It did not mean that the appellant could work on his home renovations with impunity, under some protective cloak as a consequence of filing a WorkCover medical certificate. 71Taking into consideration the evidence of Dr Smith, the evidence of the surveillance footage and on the balance of probability, it is my finding that the appellant was fit to carry out the responsibilities and duties of a Shift Manager and should have done so. I therefore find that the allegation proven. 72 If as the appellant stated that he was on sick leave then where he was not able to carry out all duties because of a concern for his knee then he could have called for assistance when and if necessary, the assistance which witnesses advised was available. 73 If as found earlier in this decision, it was the intention of the appellant to claim workers compensation then he did not attempt to contact his treating doctor to seek a clearance to carry out selected duties. 74The appellant's representative stated that even if the Board found in favour of the respondent's submissions the punishment was too harsh. In my considerations I have taken the appellant's work history record into account. I have also taken into account the comments of the senior management with respect to the appellant. 75The appellant was himself a senior manager of the respondent who on a daily basis directed, led and gave advice to employees in accordance with the various policies and procedures of the respondent. As a senior manager he had the responsibility to maintain and uphold standards. It is my view that the finding of the allegation proven is contrary to the standards required by a senior manager. I accept the submission of the respondent that the appropriate action in this case was dismissal and I disallow the appeal. Order 76The Transport Appeals Board therefore Orders that: (1)The appeal is disallowed. D. Ritchie Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2012