Health Secretary in respect of HealthShare NSW v Betts [2023] NSWIRComm 1104

Industrial Relations Commission New South Wales Medium Neutral Citation: Health Secretary in respect of HealthShare NSW v Betts [2023] NSWIRComm 1104 Hearing dates: 8 September 2023 Date of orders: 17 October 2023 Decision date: 17 October 2023 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster Decision: (1) Leave to appeal is granted (2) The appeal is upheld and the decision at first instance is set aside. (3) The application by Rebecca Betts filed on 9 April 2021 pursuant to s 242 of the Workers Compensation Act 1987 (NSW) is dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – Leave to appeal granted – Appeal upheld – whether appeal raises substantial issues of law – whether utility in granting leave to appeal – requirement of s 241 met by providing a medical certificate stating the employee is fit for the employment sought – no requirement that the medical certificate is a "true statement" of the workers fitness – finding of fitness must be based on medical evidence – no medical evidence to support conclusion the worker was fit – application dismissed Legislation Cited: Industrial Relations Act 1996 (NSW) ss 187, 188, 191 Interpretation Act 1987 (NSW) ss 33, 35 Workers Compensation Act 1987 (NSW) ss 2A, 241, 242, 243, 244, 245, 247, 248 Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 3 Cases Cited: Berry v CCL Secure Pty Ltd (2020) 271 CLR 151 Bull v Attorney General (NSW) (1913) 17 CLR 370 Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355 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 New South Wales Police Force v Zisopoulos (2020) 299 IR 314 Glenn Robson v GWA Group Ltd [2015] NSWIRComm 9 Hillman v NSW Trains [2017] NSWIRComm 1056 Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 House v The King (1936) 55 CLR 499 Jenkins v Secretary of the Ministry of Health on behalf of Nepean Blue Mountains Local Health District [2023] NSWIRComm 1045 Johnson v Williams and Another (2000) 58 ALD 1 Lego Australia Pty ltd and others v Paraggio and Others (1994) 52 FCR 542 MacDonald v Jetstar Airways Pty Ltd [2019] NSWIRComm 1010 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 Rodriguez v Telstra Corporation Ltd (2002) 66 ALD 579 Terminals Pty Ltd v NUW, NSW Branch (on behalf of Todd Bell) (2008) 182 IR 258 Category: Principal judgment Parties: Health Secretary (Appellant) R Betts (Respondent) Representation: Counsel: D Fuller (Appellant) A Searle (Respondent)