Patricia Smith v Industrial Relations Secretary in respect of Local Land Services [2023] NSWIRComm 1110

Industrial Relations Commission New South Wales Medium Neutral Citation: Patricia Smith v Industrial Relations Secretary in respect of Local Land Services [2023] NSWIRComm 1110 Hearing dates: 1, 4, 5, 6, 7 & 8 July 2022, 3 & 4 November 2022 Date of orders: 3 November 2023 Decision date: 03 November 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Muir Decision: The application is dismissed for want of jurisdiction Catchwords: WORKERS COMPENSATION — Protection of injured workers — Reinstatement of worker – Jurisdiction – Whether worker dismissed as a result of workplace injury Legislation Cited: Workers Compensation Act 1987, ss 240, 241, 244 Government Sector Employment Act 2013, s 47(1)(d) Cases Cited: Bindaree Beef Pty Ltd v Riley (2013) 85 NSWLR 350 Potter v Industrial Relations Secretary in respect of the Department of Regional New South Wales [2022] NSWIRComm 1077 Category: Principal judgment Parties: Patricia Smith (Applicant)

Industrial Relations Secretary in respect of Local Land Services (Respondent) Representation: Ms P Smith (Applicant in person) Mr M Seck (Counsel) with Mr M Whitbread (Counsel) (Respondent)

Solicitors: Landers & Rogers (Respondent) File Number(s): 2021/00348518 Publication restriction: Nil

decision 1. This is an application pursuant to Part 8 of the Workers Compensation Act 1987 (WC Act) for the Industrial Relations Commission of New South Wales (Commission) to make a reinstatement order. These reasons for decision, and the orders made herein address a threshold question as to whether the applicant was dismissed for a reason that permits her to make such an application. 2. Part 8 of the WC Act provides a process whereby a former employee, dismissed because they are "not fit for employment" as a result of an injury which is compensable under the WC Act, has conditional rights to reinstatement if they later become fit for employment. 3. The process provided by Part 8 begins with the former employee applying to their former employer for reinstatement. The former employee must provide a medical certificate attesting to fitness for employment. 4. If the former employer does not agree to reinstatement, the former employee can seek an order from the Commission requiring reinstatement. In determining an application made to it, the Commission may need to address whether the former employee is indeed fit for work, whether there are discretionary reasons to nevertheless decline reinstatement, and in appropriate cases whether there should be an order for lost remuneration. 5. In the present case, the applicant stepped through the process required by Part 8 of the WC Act. She wrote to the respondent, providing a medical certificate stating that she was fit for employment, and seeking to be reinstated to her former role. When it became clear to her that the respondent did not intend to reinstate her, the applicant filed an application with the Commission. 6. The Commission attempted conciliation, but this was not successful. The Commission set a timetable to prepare the matter for arbitration, including the filing of evidence and submissions. Dates were set for arbitration, with 6 days allocated. 7. Evidence from both parties as to the historical background was filed, largely in accordance with the timetable set by the Commission. Unfortunately, despite considerable direct communication, and the involvement of the Commission, it could not be agreed what medical evidence would be made available to the Commission as to whether the applicant was now fit for employment. To progress the application, the Commission determined to hear a preliminary question using the dates allocated. 8. This decision was taken because the relevant evidence had been filed, the respondent pressed the Commission to determine what was effectively an objection to the jurisdiction of the Commission, and because the listings of the matter would otherwise be vacated in their entirety. Given the state of the evidence filed in the matter, the question of whether the applicant met the requirements of Part 8 was able to be determined.