A fresh produce firm sacked a ‘bad apple’ after it concluded the worker had faked a back injury when lifting a box of apples.
The Polish man sued for unfair dismissal, but the Workplace Relations Commission (WRC) has upheld the company's decision. It found the dismissal was fair and likened the man's actions to "stealing" from the company.
In the incident on September 11th, 2016, the quality controller made a sound and said “oh my back’ when lifting a box of apples in the company’s pack-house.
The worker told his bosses he felt a sudden and sharp pain to his back and the pain was so bad that he had to drop the box.
The Polish worker remained on sick leave for six weeks in spite of two company doctors stating he was fit to return. The man’s GP continued to state in medical certs that he was not fit to return.
The incident took place on the first day of a new roster for the worker; up until then the company had accommodated himself and his wife to work opposite shifts and in this way they were able to cover child-care for their daughter.
After reviewing CCTV footage of the ‘apple box’ incident and hiring a private detective to follow the employee while off-sick, the firm instituted disciplinary proceedings resulting in the company sacking the man in December 2016, after more than 10 years service with the company.
In the dismissal letter on December 15th, the company’s operation manager said no workplace accident occurred “and you fabricated the incident and the injuries you allege to have sustained”.
The company’s health and safety manager said CCTV footage of the incident showed the worker lifting and dropping the box of apples in a “staged and orchestrated way”.
Assessment
A company doctor examined the worker on September 22nd and recommended he return to work.
She said the worker under examination “could not perform any movements of his lower spine yet had no difficulty in picking up his daughter and carrying her up and down the stairs on several occasions. In my opinion he did not make a good effort throughout the assessment”.
On December 8th, 2016, the company received a letter from the worker’s solicitors calling upon it to admit liability for “personal injuries as a result of repetitive work practices”.
In direct evidence before the WRC, the worker stated when lifting the box of apples, he felt a pain in the middle of his back and he dropped the box onto a trolley.
He said he tried to straighten up and walk around and the exercise of walking was helpful, but the pain got worse after sitting down.
He said he wasn’t aware he was later followed by a company private detective.
In her ruling, WRC adjudication officer, Catherine Byrne said that CCTV footage of the incident shows the man "lifting and dropping the box, with no sign of distress, shock or surprise in the immediacy of an injury".
She noted that “one week after the incident, a private detective observed the complainant carrying his daughter”.
Ms Byrne also noted the ‘apple box’ incident took place on the first day of the normal roster which created child-minding problems for the worker and his wife.
In her findings, Mr Byrne found it was reasonable for the company to conclude the worker “was not injured to the extent that he claimed, or possibly to any extent and he should have returned to work as recommended by the first company doctor on September 22nd”.
