Resignation after surveillance breached mutuality: Tribunal

South Australia: A forklift driver on Workers Compensation has lost his bid for reinstatement of his weekly payments. He resigned after being confronted with video footage of him training a football team.

The worker was on modified duties since 2003 after experiencing pain in his lower back, but aggravated this injury on several occasions and was eventually classified as having a total incapacity.

His employer, Hardy Wine Company Limited, requested a meeting with the worker, where surveillance footage was shown of him kicking a football, running and regularly bending and stretching.

The worker resigned and his weekly payments ceased. However, one week later, he withdrew his resignation and requested a return to work. Hardy rejected this request.

In a hearing before the South Australian Workers Compensation Tribunal, the worker sought the restoration of his weekly payments, but Hardy argued that his back problem was degenerative, rather than work related, and that even if it was work related, his misconduct and resignation disqualified him from payments of income maintenance.

Deputy President Judge Brian Gilchrist accepted that the worker had back pain, which was aggravated by his previous employment, and also that his movement in the video was consistent with his stated capabilities. The training did not amount to serious or wilful misconduct, as he did not deceive or coerce his treating doctor to provide him with medical certificates.

However, the worker breached mutuality when he resigned. The worker's letter requesting reinstatement did not revive mutuality, as it falsely claimed he was coerced by Hardy into resigning, and did not provide an explanation for his conduct.

Deputy President Gilchrist dismissed the worker's appeal for a resumption of weekly payments. However, he found the worker suffered a 15 per cent permanent disability, and was entitled to a lump sum payment.