Industrial Relations Commission New South Wales Medium Neutral Citation: Shakir v Department of Family and Community Services [2017] NSWIRComm 1040 Hearing dates: 3, 5 July 2017 Date of orders: 13 July 2017 Decision date: 13 July 2017 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application dismissed Catchwords: DISMISSAL – misconduct - employee worked for another employer while absent claiming workers compensation – deliberate failure to disclose other employment on medical certificates submitted – employee in receipt of payments from employer on basis of workers' compensation while working full-time in related occupation for second employer - misconduct established – dismissal not harsh unreasonable or unjust – application dismissed MISCONDUCT – deceit practiced by an employee on an employer, whether for gain or not, will generally be a basis for termination DISMISSAL OF EMPLOYEES – decisionmaker has an obligation to be independently satisfied of facts in taking disciplinary action against employee Legislation Cited: Evidence Act 1995 s.140 Government Sector Employment Act 2013 s.69 Industrial Relations Act 1996 ss.84, 88 Government Sector Employment (General) Rules 2014 Part 8 Cases Cited: Bankstown City Council v Paris (1999) 93 IR 209 Briginshaw v Briginshaw (1938) 60 CLR 336 Buchanan v Secretary, NSW Department of Education [2016] NSWIRComm 1045 Byrne v Australian Airlines Pty Ltd (1995) 185 CLR 410 Concut Pty Ltd v Worrell (2000) 103 IR 160 Electricity Commission of NSW t/as Pacific Power v Nieass (1995) 81 IR 46 Qantas Airways Ltd v Gama [2008] 167 FCR 537 Re Dispute – Dismissal of Union Delegates at Homebush Abattoir [1966] AR 371 Re Tooth & Co re Walker and Moar [1972] AR 130 Category: Principal judgment Parties: Ms Khiloud Shakir (applicant) Department of Family and Community Services (respondent) Representation: Mr C McArdle (solicitor) applicant Mr A Joseph (counsel) respondent Solicitors: McArdle Legal (applicant) File Number(s): 2017/96819 Judgment 1. This is an application brought pursuant to s.84 of the Industrial Relations Act 1996 ('the Act') by Ms Khiloud Shakir, in relation to her dismissal by the respondent, the Department of Family and Community Services. Ms Shakir was dismissed, having first been offered the opportunity to resign which she declined, with an effective date of 17 March 2017. 2. Ms Shakir was dismissed following three findings of misconduct against her arising from an investigation that the respondent caused to be carried out. The investigation was one contemplated by s.69 of the Government Sector Employment Act 2013. I observe that in my view it conformed to the procedural guidelines contained in Part 8 of the Government Sector Employment (General) Rules 2014. 3. Those findings were as follows: 1. That on 23 August 2014, 13 September 2014 and 14 January 2015 Ms Shakir failed to act with honesty and integrity by not including information directly relevant to her employment with FACS on part C of the WorkCover NSW Certificate of Capacity submitted as part of her Workers compensation claim. 2. That by her actions as set out in Allegation 1 above, Ms Shakir derived a financial benefit to which she was not entitled. 3. That Ms Shakir was in breach of the FACS Secondary Employment and Private Work policy by not seeking prior approval before undertaking any work either voluntary or paid with other providers of services in the disability sector post her commencement with FACS. Facts 1. The facts in this matter may be summarised as follows. 2. Ms Shakir was employed by the respondent to work as a Disability Care Worker in a group home. 3. On 17 August 2014, she had an altercation with another worker. The two accounts of that altercation are radically different, and include the other worker reporting a physical assault by Ms Shakir to the NSW Police, but the facts of that matter need not be determined here. 4. Ms Shakir ceased to attend work claiming stress, and presented WorkCover NSW certificates of incapacity to the respondent from her general practitioner stating that she was totally incapacitated for work. The first of these was dated 23 August 2014. That certificate stated that Ms Shakir 'has no current capacity for any employment' from 23 August 2014 to 6 September 2014. 5. Meanwhile, on 16 August 2014, the day before the altercation, Ms Shakir had made an inquiry, in response to an advertisement on the Seek website, about employment with another employer in the disability services sector, Sunnyhaven Disability Services. On that date she uploaded her resume. In that resume, under 'professional experience,' Ms Shakir stated that she had worked 'from 2011 to now' for Civic Lifestyle Services as a Social Educator. She made no mention of her then-current employment with FACS. 6. On 27 August 2014, four days after presenting a WorkCover certificate to the respondent stating that she was suffering a work-related injury and had no current capacity for any employment, Ms Shakir made a handwritten application for employment to Sunnyhaven. 7. In the course of that application, in answer to the question 'Do you suffer from any health problems, disability, serious illness, impairment or handicap that could affect your work performance in line with the relevant duties and responsibilities?' Ms Shakir crossed the box 'No', and drew a line through the space provided for details. 8. The further question was then asked 'Have you ever suffered a work-related injury or contracted a work-related illness?' Ms Shakir ticked the box 'No' and drew a line through the space provided for details. The question was then asked, 'would this injury, illness or medical condition affect your ability to carry out the duties of this position?' Again, Ms Shakir ticked the box 'No.' 9. In response to the question 'Please list all previous work experience,' Ms Shakir stated that her most recent employment was with Civic Lifestyles. 10. At the end of that form Ms Shakir signed a declaration that the information given in the application form was correct. 11. I observe here that whether or not Ms Shakir told the truth to Sunnyhaven in her application – which on the face of it she did not – is not a question that in any way determines whether her dismissal by the respondent was harsh, unreasonable or unjust. It does however have a capacity to bear on her credit, which is a matter the Commission is, on the facts of this case, required to assess, and indeed was expressly invited to assess by her solicitor, who submitted that she was no more than 'naïve and confused' in relation to the conduct which led to her dismissal. 12. On 28 August 2014 Ms Shakir was paid $2,745 in wages and allowances by the respondent. 13. On 11 September 2014 Ms Shakir was paid $666 in wages and allowances by the respondent. 14. On 13 September 2014, Ms Shakir presented a WorkCover certificate to the respondent from her general practitioner stating that she had no current capacity for work from 6 September 2014 to 13 October 2014. 15. On 15 September 2014 Ms Shakir commenced work with Sunnyhaven, performing work essentially the same as that she performed for the respondent. 16. On 25 September 2014 Ms Shakir was paid $1,043 by the respondent. These monies were drawn against her leave balances while her workers' compensation claim was being considered. 17. On 9 October 2014 Ms Shakir was paid $1,043 by the respondent. These monies were drawn against her leave balances while her workers' compensation claim was being considered. 18. In the fortnight 27 September to 10 October 2014, Ms Shakir worked 82 hours with Sunnyhaven. In the fortnight 11 October to 24 October 2014 she worked 94 hours with Sunnyhaven, according to payslips produced under subpoena by Sunnyhaven. 19. On 21 October 2014 Ms Shakir attended, at the request of the respondent's insurer, in connection with her claim for workers compensation, Dr Graham Vickery, a psychiatrist and approved Workers Compensation Commission medical specialist. Dr Vickery produced a report dated 21 October 2014. 20. If Dr Vickery's report is to be accepted as reflecting what he was told by Ms Shakir, and I am unaware of any reason why it would not be, she told him that 'she sits in bed all day,' 'she can go for days without sleep,' 'she is always in tears,' and that she 'is currently doing some housework and the cooking'. Dr Vickery reported that Ms Shakir had an ongoing incapacity due to her work injury, that her employment was a substantial contributing factor to her condition, but that she was fit for employment in another location. 21. Dr Vickery made no reference in his report to Ms Shakir having worked full-time for Sunnyhaven in the four weeks immediately before seeing him, as the evidence discloses that she had. When asked in cross-examination whether she had told Dr Vickery that she was working with Sunnyhaven, Ms Shakir answered that she 'did not remember.' I find it astonishing that an experienced medical practitioner would not note that fact, had he been told of it by Ms Shakir. 22. In setting out these matters, of course, I make no comment about the correctness of the determination of Ms Shakir's workers' compensation claim, which is not before the Commission for determination. 23. On 23 October 2014 Ms Shakir was paid $208 by the respondent. These monies were drawn against her leave balances while her workers' compensation claim was being considered. 24. On 6 November 2014 Ms Shakir was paid $1,046 by the respondent. These monies were drawn against her leave balances while her workers' compensation claim was being considered. 25. Between 8 November 2014 and 10 February 2015 Ms Shakir worked essentially full-time with Sunnyhaven and was paid fortnightly. 26. On 11 November Ms Shakir presented a further WorkCover certificate of incapacity from her GP to the respondent. That certificate stated that Ms Shakir had no current work capacity for any employment from 13 October 2014 to 13 January 2015. 27. On page 3 of that certificate is a part of the form which asks claimants to answer, by ticking a box, 'I have/have not engaged in any form of paid employment …for which I have received or am entitled to receive payment in money or otherwise since the last certificate was provided.' Claimants are then invited to write, in the space provided, details of that paid employment. 28. Ms Shakir ticked neither box and entered no details. She then signed, on the same page a declaration as follows: I declare that the details I have given on this declaration are true and correct, knowing that false declarations are punishable by law.' Ms Shakir's signature appears immediately below that declaration. 29. To be clear, Ms Shakir had been in essentially full-time paid employment with Sunnyhaven in the period since the previous certificate was provided. 30. On 20 November 2014 Ms Shakir was paid $313 by the respondent. These monies were drawn against her leave balances while her workers' compensation claim was being considered. 31. On 4 December 2014 Ms Shakir was paid $462 by the respondent. These monies were drawn against her leave balances while her workers' compensation claim was being considered. 32. On 8 December 2014 Ms Shakir was advised by QBE, the respondent's insurer, that her workers' compensation claim had been accepted. 33. On 18 December 2014 the insurer reimbursed Ms Shakir's leave credits in the sum of $13,118. 34. From 1 January until 26 February 2015 Ms Shakir received fortnightly workers' compensation payments of $1,977. 35. On 14 January 2015 Ms Shakir presented a further WorkCover certificate of incapacity from her GP, dated 12 January 2015, to the respondent. That certificate stated that Ms Shakir had no current work capacity for any employment from 13 January 2015 to 27 February 2015.. 36. On page 3 of that certificate is a part of the form which asks claimants to answer, by ticking a box, 'I have/have not engaged in any form of paid employment …for which I have received or am entitled to receive payment in money or otherwise since the last certificate was provided.' Claimants are then invited to write, in the space provided, details of that paid employment. 37. Ms Shakir ticked neither box and entered no details. She then signed, on the same page a declaration as follows: I declare that the details I have given on this declaration are true and correct, knowing that false declarations are punishable by law.' Ms Shakir's signature appears immediately below that declaration. 38. It is to be remembered that between 8 November 2014 and 10 February 2015 Ms Shakir worked essentially full-time with Sunnyhaven and was paid fortnightly. The submission of this certificate is one of the matters which formed the basis of the findings of misconduct for which Ms Shakir's employment was terminated. 39. On 5 March 2015 the insurer asked Ms Shakir to complete a statutory declaration setting out whether or not she had engaged in paid work during the period covered by the workers compensation payments, 27 August 2014 to 27 February 2015. She did not complete the statutory declaration. Ms Shakir's evidence 1. I am obliged to say that Commission was not assisted by Ms Shakir's oral evidence which was, it must regrettably be said, given in a manner and form which made it very difficult to accept. Ms Shakir displayed great difficulty in answering questions directly, even those of her own solicitor. She used her answers in cross-examination to argue her case, posed questions back to counsel, and repeatedly declined to answer closed questions, instead launching into denunciations of co-workers and supervisors. 2. I am conscious of cultural differences in speech patterns that may affect a witness' presentation of oral evidence, but this is a person with, on her evidence, a PhD in Political Science from her country of origin, and a Masters in International Social Development from the University of New South Wales, together with a range of other Australian qualifications, including in immigration and citizenship law, and who has worked in Australia at least since 2000, including as a migration agent and an electoral officer. She was under no disadvantage whatsoever in understanding and answering questions. I was compelled to the view that she simply did not want to give straight answers to many of them. 3. I turn to her correspondence with the respondent and the respondent's insurer, submitted in evidence, in order to assess Ms Shakir's conduct and reasoning. 4. Ms Shakir wrote to the respondent's insurers on 26 May 2015 in response to questions from them. She wrote, inter alia, 'I was left without income for four months from August till December. [2014] It is not true that I was recipient of WorkCover and working elsewhere.' She then added, 'You are dragging me into a problem which I did not make…I was ignored and left without any money for four months.' 5. Those statements are, regrettably, flatly untrue. Ms Shakir was not left without income from August to December. She was receiving income from both the respondent and, from September on, Sunnyhaven, as set out above. It is not true that Ms Shakir was not 'recipient of WorkCover and working elsewhere.' She was. Between December 2014 and February 2015 Ms Shakir was squarely and certainly receiving WorkCover payments while claiming total incapacity yet working full-time elsewhere. 6. On 3 February 2017 Ms Satchell, Acting Executive Director, Disability Operations South for the respondent wrote to Ms Shakir setting out the allegations which are set out at the commencement of this decision. 7. In response, Ms Shakir wrote to Ms Satchell saying, inter alia, these things. 8. First, she asserted that the medical certificates she furnished to the respondent and its insurer were for 'a bullying case.' She adds 'The certificates were very clear for 'bullying and stress'. Those are not medical conditions.' I interpose here that the certificates also stated that Ms Shakir suffered from PTSD, she had a total incapacity for work, and that she claimed and received workers compensation payments on the basis of these certificates. 9. She then said 'I did not use these certificates to stop from work. The Department has no proof that the medical certificates were made to claim any leave because I was simply not rostered anywhere and I was denied even casual work and I can prove that.' I interpose that the certificates stated that Ms Shakir was totally incapacitated for work. That is why she was not rostered for any shifts. 10. As to the question of her not having marked the boxes on the WorkCover certificates indicating whether she had or had not had any paid employment, Ms Shakir said 'There are two boxes, by not ticking any I was kept silence due to my circumstances.' 11. In that statement I think is a germ of truth. Ms Shakir 'kept silence' by refraining from ticking one of the boxes so as not to disclose her true circumstances. 12. She then adds 'I was not working for Sunny Haven at that time.' On the basis of the payslips now produced under subpoena, that appears to be false. The allegations 1. The respondent alleges misconduct against Ms Shakir. The respondent must make out that misconduct, and at a level appropriate to the gravity of the allegations: Evidence Act 1995 s.140. It must be understood that s.140, and the reasoning in Briginshaw v Briginshaw (1938) 60 CLR 336 that underpins the statutory provision, do not alter the civil standard of proof. That always remains on the balance of probabilities. Nor does s.140 set any kind of fixed level of heightened satisfaction that is to be reached to allow a finding of fact to be made. 2. Rather, s.140 prescribes that, as was held in Qantas Airways Ltd v Gama [2008] 167 FCR 537 at [10], the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved. The graver the allegation that is sought to be proved, the greater the strength of the evidence necessary to make it out. The allegations here are, as I say, serious. 3. I turn to the first allegation. That was that on 23 August 2014, 13 September 2014 and 14 January 2015 Ms Shakir failed to act with honesty and integrity by not including information directly relevant to her employment with FACS on part C of the WorkCover NSW Certificate of Capacity submitted as part of her Workers compensation claim. 4. That allegation is not made out in relation to the certificate of 23 August 2014 and 13 September 2014. It is correct that Ms Shakir did not tick one of the boxes, as she ought to have done, on both those certificates. But on neither of those dates had she commenced in paid employment. She did not fail to include information relevant to her employment, as alleged. She commenced in paid employment with Sunnyhaven on 15 September 2014. The failure to tick either box in the certificates of 23 August and 13 September, while technically wrong, had no capacity to deceive anyone, and did not give rise to any payment that Ms Shakir ought not to have received. Why that was not immediately apparent to the investigator, Mr Madden of DBM Independent Consultants, who cited Ms Shakir's date of commencement with Sunnyhaven in his report, or to the ultimate decisionmaker, Ms Satchell, is both unexplained and inexplicable. 5. I observe here that persons having the delegation to, inter alia, dismiss employees for misconduct cannot simply proceed on the basis of an investigator's finding without more. Dismissing an employee is a serious matter and a person holding the delegation to do so must, in my view, form an independent view that misconduct has occurred before considering disciplining an employee for misconduct. On any analysis it is apparent that the allegations relating to the first two certificates could not be made out. That ought to have been detected by the decisionmaker; the facts necessary to form that view were all available to her. It would not, it is clear from the findings I turn to immediately below, have made any difference in this case, but it remains an important obligation on decisionmakers to form an independent view on all the facts before carrying out any form of disciplinary action against an employee. It is not sufficient to proceed by blindly accepting findings made by an investigator. 6. The certificate dated 12 January 2015, provided by Ms Shakir on 14 January 2015, is another matter altogether to the earlier certificates referred to in the allegation. Again, Ms Shakir did not tick either box going to other paid employment. But on this occasion she knew full well that she had been engaged in paid employment since the last certificate was issued; she worked 94 hours with Sunnyhaven in the period 3 to 16 January 2015. Her failure to disclose that fact did have a capacity to deceive her employer and its insurer, and did cause her to receive monies from the respondent's insurer to which, had she disclosed the true state of affairs as the form required her to do, and which she certified by signature at the bottom of the form that she had done, she would not have been entitled. 7. Curiously, the respondent made no complaint about the certificate of 11 November 2014, where again Ms Shakir failed to advise that she was in full-time paid employment, or any employment at all, when in fact she was. That was also misconduct, but was not put against Ms Shakir in terminating her employment. Even in submissions before the Commission it was not called in aid, although it might have been: Byrne v Australian Airlines Pty Ltd (1995) 185 CLR 410 at 430. Accordingly, I give that matter no weight at all in my decision. Consideration 1. On the basis of all the evidence before me, I am satisfied at the level of proof required to find such a matter made out that there was a deliberate concealment from her employer by Ms Shakir, by declining to answer the required question on the WorkCover certificate relating to other employment, of the fact that she had engaged in that paid employment. That certificate was tendered after the date on which workers' compensation payments began to be received by Ms Shakir, and at a time when, as I observe above, she was working full-time with Sunnyhaven and receiving payment for that work as well as the workers' compensation payments. I cannot form any other conclusion than that this was a deliberate course of conduct on Ms Shakir's part. 2. That means that the second allegation – that by her actions as set out in Allegation 1 Ms Shakir derived a financial benefit to which she was not entitled – is also made out so far as it related to the certificate furnished on 14 January 2015, although not otherwise. 3. I am compelled to the conclusion that Ms Shakir acted with deliberate dishonesty toward her employer and the employer's representative, the insurer, in relation to the certificate provided on 14 January 2015. I do not accept that she was 'naïve and confused.' As a consequence of her conduct she received payments from her employer through its insurer, based on her claiming total incapacity to work when in fact she was working full-time in the same type of work for another employer. 4. That conduct was misconduct. Whether the action of an employee amounts to misconduct will generally depend on whether the act strikes at the heart of the employment relationship: Re Dispute – Dismissal of Union Delegates at Homebush Abattoir [1966] AR 371. The ordinary relationship of employer and employee is one importing implied duties of honesty and trust: Concut Pty Ltd v Worrell (2000) 103 IR 160, so this act did strike at the heart of the employment relationship. That is why deceit by an employee of an employer is a serious matter, whether or not it is associated with fraud, and will generally disincline the Commission to intervene in a dismissal: Re Tooth & Co re Walker and Moar [1972] AR 130 at 142. And as the Commission observed in Electricity Commission of NSW t/as Pacific Power v Nieass (1995) 81 IR 46, albeit in consideration of the need for warnings, no employee of ordinary understanding needs to be told that if they deal dishonestly with their employer they may be dismissed, any more than they need to be told they should be careful in crossing the street. (at 68). 5. Having said that, the question before the Commission is whether the dismissal was harsh or unreasonable or unjust, applying the tripartite test established by the statute: Bankstown City Council v Paris (1999) 93 IR 209; Buchanan v Secretary, NSW Department of Education [2016] NSWIRComm 1045 at [6]. I turn to that question, in doing so having regard to the matters set out at s.88 of the Act. 6. The applicant's conduct demonstrated a deliberate intention to deceive her employer for the purpose of gaining a financial benefit, maintained over time. I am unable to see termination for that conduct as either harsh, or unreasonable, or unjust. As I say above, because the relationship of employer and employee is one importing implied duties of honesty and trust, this conduct, which was active deceit, struck at the heart of the employment relationship. The misconduct was serious, and the respondent could not be expected to have the necessary trust and confidence in Ms Shakir going forward to maintain an employment relationship. 7. I have not found it necessary to set out all the evidence concerning the third allegation found sustained by the employer. Ms Shakir clearly engaged in secondary employment without formal approval, although she said that she told her line supervisor at the respondent that she intended to engage in other work. That person did not give evidence. I do not form a final view about that matter, because it is unnecessary; in my view the dismissal was entirely justified on the basis of the conduct concerning the certificate provided on 14 January, and the derivation of an unjustified benefit at the employer's expense from that conduct. Disposal of the matter 1. The application before the Commission is dismissed. PETER NEWALL 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: 13 July 2017