The Federal Magistrates’ Court has held that an employer’s decision to hold a meeting with an employee, put allegations to him and suspend him, was motivated “entirely” by the employer’s suspicion of WorkCover fraud, and not the WorkCover claim itself.

An employer heard a rumour that an employee was making fraudulent WorkCover claims. The employer engaged a private investigator who produced evidence that the employee was no longer injured. The employer met with the employee to discuss these allegations and then stood him down.

The Court found that calling on the employee to justify his position, standing him down and threatening dismissal, constituted “adverse action”. The commissioning of the private investigation did not in itself constitute adverse action, but its outcome did. The Court also found that the employee had a workplace right to seek compensation under the Workers’ Compensation and Rehabilitation Act 2003 (Qld), which the Court held to be a “workplace law”. However, the “operative” reason for the employer’s conduct was to determine whether the employee had committed fraud; the compensation claim “merely provided the background” to this. It followed that the adverse action was not because of the exercise of a workplace right and, therefore, it was lawful.

CFMEU v Leighton Contractors Pty Ltd [2012] FMCA 487