Australia

Adelaide Aged Care Worker Daniel Smyth Loses Unfair Dismissal bid After Facebook Post Shows him in India During Sick Leave

It is common practice for bosses to check out what staff are up to on Facebook — but it cost one Adelaide man his job after his employer busted him at a wedding in India during sick leave.

Daniel Smyth lost his unfair dismissal bid against Alwyndor Aged Care in the SA Employment Tribunal, after it found the nursing home was within its right to sack him over the social media posts.

The ordeal started when Mr Smyth was jailed for 81 days for disqualified driving in February 2016.

He wrote a letter to the then-general manager and told him of his circumstances, seeking leave without pay — which was granted.

Mr Smyth was released in May 2016 and a few days later met with Alwyndor HR manager Greg Nankervis, where he was told his employment would recommence on June 8.

The tribunal was told that Mr Smyth asked Mr Nankervis if he could start work more than a month later so he could go to a wedding in India. But the request was denied.

On June 8, Mr Smyth — who suffers from depression and bipolar — provided two sick certificates covering June 8 to July 18, 2016.

“The period for the second certificate was for the same period Mr Smyth had sought and been denied annual leave,” tribunal commissioner Paul McMahon said.

“During this period of time off, Alwyndor became aware of Facebook posts that indicated Mr Smyth was in India attending the marriage of a relative of his wife.”

Alwyndor accused Mr Smyth of misleading them about the reason for his absence and sought an explanation but the employee refused to answer any questions. He was then sacked.

The tribunal was told that Mr Smyth had a sick certificate for the two days of his daughter’s baptism in January 2016 — which also followed an unsuccessful leave request.

During his evidence, Mr Smyth said the tickets to India were purchased on May 7 and he thought it was a coincidence that his doctor provided him with the same time off.

Mr Smyth’s doctor also gave evidence, saying he provided the sick certificates because he believed his patient was depressed following his release from jail.

Alwyndor’s then-general manager Travis Hill told the tribunal that he believed Mr Smyth had exaggerated his illness to the doctor to go to India.

In his decision, Mr McMahon said there was no dispute that Mr Smyth had a genuine illness in July 2016 but Alwyndor had reasonable grounds to suspect it was being misled.

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