Jenkins v Secretary of the Ministry of Health on behalf of Nepean Blue Mountains Local Health District [2023] NSWIRComm 1045

Industrial Relations Commission New South Wales Medium Neutral Citation: Jenkins v Secretary of the Ministry of Health on behalf of Nepean Blue Mountains Local Health District [2023] NSWIRComm 1045 Hearing dates: 7 and 8 December 2022 Date of orders: 12 May 2023 Decision date: 12 May 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: 1. The Nepean Blue Mountains Local Health District shall, by no later than 26 May 2023, reinstate the Applicant to his former position as a wardsperson. 2. The Applicant is directed to produce to the Respondent, by no later than 9 June 2023, copies of documents recording any and all income received by him in return for the provision of his personal services (whether by way of employment or otherwise) or by way of workers compensation, during the period 26 October 2022 to the date of his reinstatement, including but not limited to payslips or payment advices; bank statements and documents received from Employers Mutual Limited. 3. The Respondent is to inform the Applicant of the amount it calculates the Applicant would have earned, but for being dismissed, between 26 October 2022 and the date of reinstatement, at his ordinary rate of pay, less any amounts received as payment in respect of Workers Compensation or payments derived from the provision by the Applicant of personal services, whether by way of employment or otherwise, by no later than 16 June 2023. 4. The Respondent is to make any application with respect to costs by filing a notice of motion with an affidavit in support by 16 June 2023. 5. The parties are directed to confer regarding the amount that should be ordered to be paid to the Applicant pursuant to s 243(4) of the Workers Compensation Act 1987 (NSW) and the terms of such order. 6. The matter is to be listed on 23 June 2023 at 10.00am for the making of final orders or for further directions as the case may be. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Workers Compensation Act 1987 – application for reinstatement of injured worker – whether applicant fit for employment of the kind for which he had applied – evidence required to establish fitness –discretion of Commission if worker is fit to return to work – approach to orders for continuity of service under s 246 and for backpay under 243(4) – order for reinstatement made, but no order made under s 246 and backpay limited to period from which, in light of the findings of the Commission, the Respondent should have reinstated the Applicant Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Evidence Act 1995 (NSW), ss 76, 79, 80, 91,131, 136 Industrial Relations Act 1996 (NSW), s 163 Uniform Civil Procedure Rules 2005 (NSW), r 1.5, Pt 23, Sch 1 Workers Compensation Act 1987 (NSW), ss 241, 242, 243, 244, 245, 246 Workers Compensation (Dust Diseases) Act 1942 (NSW) Workers Compensation Regulation 2002 (ACT) Workers Compensation Regulation 2016 (NSW), reg 41 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 73, 119, 126, 321 Cases Cited: Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305; 85 NSWLR 350 Cansino v South Western Sydney Area Health Service (1999) 130 IR 1; [1999] NSWIRComm 355 Chau v Visy Board Pty Ltd [2012] NSWIRComm 101 Clarke v Martlew [1973] QB 58 Coastal Service Centres Pty Limited v United Petroleum Pty Limited [2020] NSWSC 1870 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 David Ernest Birch v Sparke Away Pty Limited (ACN 104 170 247) and Australian Postal Corporation trading as Australia Post [2008] ACTSC 27; 2 ACTLR 78 Deacon v Australian Capital Territory [2001] ACTSC 8; 147 ACTR 1 Galafassi v Kelly (2014) 87 NSWLR 119; [2014] NSWCA 190 Glenn Robson and GWA Group Limited [2015] NSWIRComm 9 Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1077; 50 NSWLR 640 KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children's Hospital Westmead and Anor [2010] NSWSC 891 Lorelle Hillman v NSW Trains [2017] NSWIRComm 1056 Louise Peta Lambert v ACT Nursing Services Pty Ltd [2007] ACTSC 86; 1 ACTLR 172 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 Neill v Commonwealth (unreported, 1982, ACTSC, BC 8200148, 9 September 1982), PL by her tutor TL v Dunstan [2020] NSWSC 297 Potter v Industrial Relations Secretary in respect of the Department of Regional New South Wales (No 2) [2023] NSWIRComm 1026 Potter v Industrial Relations Secretary in respect of the Department of Regional New South Wales [2022] NSWIRComm 1077 Robertson v Police [1957] NZLR 193 Smith Management Concepts Pty Ltd t/as Bernadette's Cafe and Restaurant v Khanh Van Truong [2006] ACTSC 16 Terminals Pty Limited v NUW, NSW Branch (on behalf of Todd Bell) [2008] NSWIRComm 247; 182 IR 258 Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Limited [2008] NSWIRComm 157 Wells by his tutor McGuffog v Hunter New England Local Health District [2018] NSWSC 1877 Texts Cited: NSW Civil Handbook 2022 (Lawbook Co 2022), [r23.2.80], [r23.4.90] Category: Principal judgment Parties: Kevin Jenkins (Applicant) Secretary of the Ministry of Health on behalf of Nepean Blue Mountains Local Health District (Respondent) Representation: Mr A Slevin of counsel (Applicant) Mr D Gardner, solicitor (Respondent) Solicitors: Bartier Perry (Respondent) Other: Health Services Union NSW (Applicant) File Number(s): 2022/113862 Publication restriction: Nil