Dizon v Katoomba Scenic Skyway Pty Ltd [2021] NSWIRComm 1028

Industrial Relations Commission New South Wales Medium Neutral Citation: Dizon v Katoomba Scenic Skyway Pty Ltd [2021] NSWIRComm 1028 Hearing dates: 22 March 2021 Date of orders: 22 March 2021 Decision date: 22 March 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Application dismissed Catchwords: INJURED WORKER – application for reinstatement – restructure of stores area – genuine redundancy Legislation Cited: Workers Compensation Act 1987 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Christopher Dizon (Applicant) Katoomba Scenic Skyway Pty Ltd (Respondent) Representation: Solicitors: Mr I Collins (Applicant) Mr R Hassall, Sparke Helmore Lawyers (Respondent) File Number(s): 2020/00321759 Publication restriction: Nil

EX TEMPORE DECISION 1. This is an application brought by Christopher Dizon pursuant to s 242 of the Workers Compensation Act 1987 seeking reinstatement with the respondent' Katoomba Scenic Skyway Pty Ltd. 2. The applicant commenced work with the respondent in May 2016. On 2 July 2018 the applicant suffered an injury at work to his left elbow, which gave rise to a workers compensation claim. The applicant's employment was terminated on 24 July 2018 on the basis, according to the respondent, of a genuine redundancy arising from a restructure of the stores area. The applicant challenges that assertion. 3. The application pursuant to s 242 of the Workers Compensation Act was not filed until 10 November 2020, some 113 days outside the two year time limit imposed by s 242 to make such applications. The Commission must not accept an application filed out of time unless under special circumstances as provided for in s 242(3). 4. In this case, I have no evidence before me which would satisfy that requirement. The reliance that is placed by the applicant on the report of Dr Todd Gothelf dated 12 August 2020 does not satisfy the requirement for special circumstances. 5. I, therefore, hold that the Commission is unable to accept this application out of time. 6. In any event, had I done so I would have dismissed the application on the basis that I accept the evidence of Ms Hammon that the applicant was not terminated as a result of a work-related injury but rather as a result of a genuine redundancy. The evidence in support of that, about which Ms Hammon was not challenged in cross-examination, is to the effect that consideration was being given to a restructure in the stores area from 2017 through to the middle of 2018. There were various proposals under consideration throughout that period. The first draft of the proposal for changing the engineering and operations team structure, which was annexed as annexure AH-7 to Ms Hammon's witness statement, exhibit 2, was prepared on 19 May 2018, prior to the applicant's work-related injury. Ms Hammon was not challenged on any of the contents of that document. 7. I, therefore, find that the applicant was not terminated as a result of a work-related injury but rather as a consequence of a genuine restructure of the area in which he worked. On that basis, this application is dismissed. I so order. John Murphy Commissioner