Potter v Industrial Relations Secretary in respect of the Department of Regional New South Wales [2022] NSWIRComm 1077

Industrial Relations Commission New South Wales Medium Neutral Citation: Potter v Industrial Relations Secretary in respect of the Department of Regional New South Wales [2022] NSWIRComm 1077 Hearing dates: 30, 31 August; 1 September; 18, 19, 20 October 2021 Date of orders: 19 September 2022 Decision date: 19 September 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Webster Decision: The application in 2020/288829 is dismissed. The application in 2021/15957 is dismissed. Catchwords: Unfair Dismissal – Reinstatement of injured worker – issue estoppel in respect of Consent Orders in Workers Compensation Commission – whether employee made unsubstantiated allegations – exercise of discretion to order reinstatement of injured worker – whether employee's injury must be known to be compensable at time of termination – employer took reasonable steps in management of employee's injury – employee unfit to work for more than 12 months - dismissal not unfair - applications dismissed Legislation Cited: Fair Work Act 2009 (Cth) Government Sector Employment Act 2013 (NSW) ss 47, 50 Industrial Relations Act 1996 (NSW) ss 84, 85, 88, 89 Interpretation Act 1987 (NSW) ss33, 35 Industrial Relations Further Amendment Act 2006 (NSW) Workers Compensation Act 1987 (NSW) ss 4, 9A, 11A, 32A, 37, 60, 241, 242, 243, Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 49 Cases Cited: Allianz Australia v GSF Australia [2005] HCA 26; (2005) 221 CLR 568 Bindaree Beef Pty Ltd v Riley (2013) 85 NSWLR 350; NSWCA CA 305 Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355; 130 IR 1 Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Commissioner of Police v Police Association of New South Wales [2010] NSWIRComm 188 Corrective Services NSW v Danwer [2013] NSWIRComm 61 Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 J Boag & Son Brewing Pty Limited v Alan John Button [2010] FWAFB 4022 Martinez v Park Trent Properties Group Pty Limited (No 2) [2016] NSWSC 1661 Public Employment Office, Department of Corrective Services v Sarolta Boda [2006] NSWIRComm 1 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm 108 Public Service Association of and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary on behalf of the Department of Justice [2015] NSWCA 386 Schobbe v ANZ banking Group Limited [2017] NSWIRComm 1005 Shelley Jackson v Commissioner of Police [2019] NSWIRComm 1033 Tawfils v Woollahra Municipal Council [2020] NSWIRComm 1007 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 Turner v London Transport Executive [1977] ICR 952 Category: Principal judgment Parties: Ms Louise Potter (applicant) Industrial Relations Secretary (respondent) Representation: Counsel: L Doust (for the applicant) S Meehan (for the respondent) Solicitors: WorkLawyers (for the applicant) Lander & Rogers (for the respondent) File Number(s): 2020/288829 & 2021/15957 Publication restriction: Nil