четверг, 4 августа 2016 г.

Австралия. Уволили работницу из-за того, что, хотела выйти раньше на работу и, исправила в медицинской справке дату окончания периода освобождения от работы. Основание увольнения: нарушение соответствующего положения локального акта компании, именуемого «Политика порядочности, честности и правдивости». В суде работница утверждала, что увольнение связано с ее отношениями с менеджером Компании: в отношении работницы распространялись более легкие требования в связи с ее травмой шеи, которую, по мнению менеджера, работница симулировала. Суд отказал в восстановлении на работе, отметив, что « it was important that employers could expect that when they are provided with medical evidence of an employee’s incapacity, it was a document free from amendments made by the employee». То есть, «это важно, чтобы наниматель мог быть спокоен, что когда он получает подтверждение о нетрудоспособности работника, подтверждающий документ не имеет исправлений, сделанных работником».


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Monday 1 st August 2016
Sacked for changing a medical certificate to return to work sooner
In today's Workplace Bulletin:
  • Not the worker’s document to change
Jeff Salton PortraitA Brisbane worker dismissed for falsifying a medical certificate has had her application for an unfair dismissal remedy rejected by the Fair Work Commission.
Ms Jisu Jeong worked as a sous a chef with Alpha Flight Services – a company that provides catering and retail services to various airlines – from October 2012.
She was summarily dismissed for breaching Alpha Flight’s Honesty, Integrity and Truthfulness Policy after the company found she had falsified a medical certificate provided to her by a doctor on 13 January 2016.
But the worker claimed the real reason for her dismissal was bullying and harassment by her line manager.
The certificate
On 13 January 2016, Ms Jeong fell ill and was visited in her home by a doctor who diagnosed her as having the flu. She was provided with a medical certificate declaring her unfit for work from 14 January to 17 January inclusive.
On 14 January 2016, Ms Jeong emailed a copy of the medical certificate to her employer and on 18 January she returned to work as she was feeling better.
On 19 January 2016, a senior manager approached Ms Jeong and invited her to have a quick chat about how she was going with her doctor appointments and physiotherapy. (Ms Jeong sustained an injury to her neck on or around 3 November 2015, and claimed that the injury was sustained at work due to an increase in her workload and the amount of overtime that she had been performing during the G20 summit in Brisbane. The injury was reported to Alpha Flight and to WorkCover. Ms Jeong was subsequently placed on light duties with restrictions on her lifting capacity to 2 kilograms.)
At the meeting, her line manager raised concerns with the medical certificate she had emailed. She was asked if she had made any amendments to the medical certificate, which she denied.
Alpha Flight conducted another meeting on 21 January 2016 to discuss the medical certificate. The meeting was again attended by Ms Jeong and her line manager and a note-taker.
At that meeting the line manager told Ms Jeong that he had contacted her doctor to discuss the medical certificate and the alteration of dates to it. Again Ms Jeong said she did not make any alterations to the medical certificate.
Her manager said he had concluded that she had amended the medical certificate and she would be summarily dismissed for serious misconduct.
Workplace bullying
Ms Jeong’s told the Fair Work Commission (FWC) that shortly after making a claim of workers’ compensation in November 2015, she was bullied and harassed by her line manager, who denied the claim.
Ms Jeong stated that it was after she was placed on ‘light duties’ that she noticed that the way Alpha Flight services management treated her “changed dramatically”. Ms Jeong’s told the Commission that her line manager would walk past her work area and hold his neck to one side and say “How’s your neck”, or “I hope you’re doing your stretches” in front of everyone. Ms Jeong claims that the manager was often grinning when he said this to her.
Ms Jeong further stated that her manager often made her feel that he did not believe that her WorkCover case was genuine, or that she was lying.
She told the Court that her mental health began to suffer and that she was depressed as a result of the treatment by Alpha Flight management.
When you decide an employee has to go, you need to be certain your dismissal process is legal and fair.


The admission
In Court, Ms Jeong admitted that she changed the period of incapacity from 18 January 2016 to 17 January 2016, together with changing the return-to-work date from 19 January 2016 to 18 January 2016, so that she could return to work one day earlier. Ms Jeong stated that she did not know this was wrong, given she wasn’t receiving any benefit from returning to work early.
She told the Court she did this as she felt that she needed to return to work as early as practicable so that she didn’t experience further alleged bullying and intimidation for taking time off work.
She also stated that the doctor had changed the initial date in her presence from 13 to 14 January 2016.
Ms Jeong said that when she returned to work she was called to a meeting where she was made to sit while her manager stood over her, making her feel threatened and intimidated.
Apart from the medical certificate dates, Ms Jeong stated that many other things were discussed at the meeting, including what she took to be a threat made by her manager that WorkCover was reviewing her case, and if the claim was not found to be genuine, she may have to repay the fees that had been paid for medical treatment to-date.
On 21 January 2016, Ms Jeong was advised to attend a meeting to revisit the discussions that were had on 19 January 2016. She was told she could bring a representative from Alpha Flight with her to the meeting but she refused, telling the Court she felt none of her colleagues would want to represent her for fear of their own job, and that they weren’t qualified enough to help her.
Ms Jeong stated that she had advised her manager that if Alpha Flight did not accept the medical certificate, Alpha Flight could choose not to pay for the sick leave that she had taken. She said she told her manager, “You do not have to fire me.” But the company did dismiss her.
Ms Jeong told the Commission she did not receive any payment in lieu of notice on termination and following the decision she experienced depression, stress, and had difficulty sleeping. She claims that she still has psychological issues resulting from the alleged workplace bullying.
She has been unable to secure employment in the catering industry due to the injury to her neck and lifting restrictions.
Valid reason
The reason Alpha Flight gave for the dismissal of Ms Jeong was that she had made alterations to the medical certificate supplied to the employer, and then repeatedly denied this conduct when questioned.
While Ms Jeong’s conduct in making the alterations to the medical certificate and returning to work earlier than she was authorised to do so was not ultimately for her benefit, the Commission found that Ms Jeong engaged in misconduct.
Commissioner Hunt said it was important that employers could expect that when they are provided with medical evidence of an employee’s incapacity, it was a document free from amendments made by the employee. It was not Ms Jeong’s document to tamper with.
Any alterations made by an employee to a medical certificate provided by a doctor have the effect of undermining the confidence employers can have in such important documents,” he said.
The notes of the meeting of 19 January 2016 make it clear that Ms Jeong had every opportunity to reveal her conduct, and she chose not to do so. Ms Jeong made a statement to the effect, ‘I have no reason to lie.’  In fact, Ms Jeong did lie.”
Commissioner Hunt found that there was a valid reason to sack Ms Jeong.
However, the Commissioner said he found the manager’s conduct in sitting on the table (presumably with one foot on the ground while sitting at the edge of the table) while Ms Jeong was seated was “distasteful” and the manager ought to be discouraged from engaging in this kind of behaviour to ensure an employee does not feel intimidated by a manager’s physical presence.
The process …
Successfully dismissing an employee who engages in misconduct often hinges on the company following the correct dismissal procedure and having policies and employment contracts that back up manager’s decisions.
Don’t risk Court-imposed penalties for getting the process wrong. Get your copy of the Portner Press Managing Lawful Dismissal. Written in plain English by Employment Law experts, this eBook has the potential to save you much time and money by ensuring your processes stand up in Court.
Keep up the good work,
Jeff Salton signature
Jeff Salton
Editor, Workplace Bulletin


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