Industrial Relations Commission of New South Wales CITATION : Australian Liquor, Hospitality & Miscellaneous Workers Union, NSW Branch (o/b K Lowe) v George Weston Foods Ltd t/as Tip Top Bakeries [2001] NSWIRComm 327 PARTIES : Australian Liquor, Hospitality & Miscellaneous Workers Union, NSW Branch (o/b K Lowe) George Weston Foods Ltd t/as Tip Top Bakeries FILE NUMBER: IRC 4279 of 2001 CORAM: Harrison DP Application for relief from threat of dismissal - termination of employment threatened due to frustration by non compensible injury - risk of further injury - obligations pursuant to s15 of OH&S Act - s19 OH&S Act duty of employee to cooperate - s47 OH&S Act permanently disabled for employment of a particular type - various medical opinions. CATCHWORDS : Held - no failure to cooperate by employee - not excluded by s47 OH&S Act - prognosis of future potential injury limited - not precluded by s15 OH&S Act - access to rehabilitation program - discrimination on grounds of physical disability - no discrimination held - weight of medical opinion employee fit for work - order to refrain from threat of dismissal Anti-Discrimination Act 1977 LEGISLATION CITED : Industrial Relations Act 1996 Occupational Health and Safety Act 1983 Workplace Injury Management and Workers Compensation Act 1998 Workcover Authority of NSW (Insp. Mansell) v Air Express International (Australia) Pty Ltd 1998 83 IR 64 Wells v Commissioner of Police [2000] NSWIRComm 157 CASES CITED : Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Construction, Forestry, Mining and Energy Union o/b Kennedy v Cumnock No 1 Colliery Pty Ltd Print No901496 Silaphet v South Western Area Health Service [1998] NSWIRComm 122 Commonwealth Steel Co Ltd v Ward (FIRC, Hill, Hungerford JJ Shiels CC, IRC3144 of 1993, 16/12/94, unreported) HEARING DATES: 09/04/2001 DATE OF JUDGMENT: 12/07/2001 APPLICANT Mr J Lloyd Australian Liquor, Hospitality & Miscellaneous Workers Union, NSW Branch LEGAL REPRESENTATIVES: RESPONDENT Ms E Pattison Australian Industry Group JUDGMENT: - 12 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 7 December 2001 Matter No IRC 4279 of 2001 AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS' UNION, NEW SOUTH WALES BRANCH (ON BEHALF OF KEVIN LOWE) AND GEORGE WESTON FOODS LTD T/AS TIP TOP BAKERIES Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2001] NSWIRComm 327 1 The application in this matter was filed on 26 June 2001 by Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch ('the Union') on behalf of its member, Mr Kevin Lowe ('the applicant'). 2 The matter was subject to proceedings for the purpose of conciliation and directions on 11 July and 18 July 2001. These proceedings established that the matter was not capable of settlement by agreement between the parties and directions issued to bring the matter to hearing on 3 September 2001, to continue to conclusion on 4 September 2001. 3 On hearing Mr J Lloyd of the Union appeared on behalf of the applicant with Ms C Cook. Ms E Pattison of Australian Industry Group (AIG) appeared on behalf of George Weston Foods Ltd trading as Tip Top Bakeries ('the company'), the respondent employer, with Mr S Houston and Mr M Cook. 4 Mr Lloyd brought evidence from Mr Lowe. 5 Ms Pattison brought evidence from Mr Stephen Houston, employed by the respondent as Occupational Health and Safety Co-ordinator at its Gateshead facility. 6 The parties were afforded an opportunity to make further written submissions in respect to medical reports proffered late in proceedings, outside the timeframe of directions issued to bring the matter to hearing. Submissions were received from Ms Pattison on 21 September 2001. Final submissions in reply were received from Mr Lloyd on 5 October 2001. 7 Mr Lloyd submitted that the applicant sought relief from the threat of dismissal by way of an order pursuant to s89(7) of the Industrial Relations Act 1996 ('the Act'). THE EVIDENCE 8 The evidence of Mr Lowe is that he commenced working as a bread vendor with the company on 21 April 1989. Mr Lowe's duties primarily involved collecting bread products from the company's depot at Ourimbah and delivery to various outlets at Kariong and on the Woy Woy peninsula. 9 Mr Lowe remains the company's only bread vendor, having declined an offer taken up by other vendors to become a distributor. Mr Lowe's evidence is that distributors are not regarded as employees. 10 The evidence of Mr Lowe is that his hours of work varied, usually taking seven hours on Mondays, Wednesdays and Fridays, and five and a half hours on Tuesdays and Thursdays, with associated paper work of about one hour per day which he completed in his office at his residence. 11 Mr Lowe's evidence is that he became a union delegate in about 1993. 12 Mr Lowe's evidence is that on 6 December 2000 he suffered an injury to his lower back whilst lifting an outboard motor in the pursuit of personal activities unrelated to his employment. This event took place after Mr Lowe had ceased work for the day. 13 Mr Lowe's evidence is that he was treated by Dr D W Sooy, a general practitioner, who certified him unfit to work pending further examination on 30 January 2001. Dr Sooy certified Mr Lowe fit to resume work from 1 February 2001, providing a certificate to that effect issued on 30 January 2001(att. A to ex 4, Mr Lowe's affidavit of evidence). The certificate states that Dr Sooy examined Mr Lowe on 8 January 2001 and 30 January 2001, forming the opinion that Mr Lowe was suffering from lower lumbar back ache, was unfit for work from 7 December 2000 to 31 January 2001 and fit for full duties from 1 February 2001. 14 Mr Lowe's evidence is that the company refused to allow him to return to work without examination by a company appointed medical practitioner. This was conveyed to Mr Lowe in correspondence of 31 January 2001 over the signature of Mr Stephen Houston, Occupational Health & Safety Adviser (att. B to ex 4) in the following terms: " With regards to your proposed return to work tomorrow 01/02/01 the company will require you to not attend work as we feel there may be Occupational Health & Safety issues if you return prior to an assessment by the company doctor. The company doctor is in the best position to ensure the healing process of your back injury is sufficient to confidently allow your return to pre injury duties. This is the company policy and is required to ensure our Duty of Care to provide a workplace that will not cause injury or ill health to an employee which is a requirement by law as per the OH&S Act Section 15. This course of action has been supported by our legal advisers as an appropriate response to our legal requirements and our responsibilities as an employer. You also have a legal responsibility under Section 19 of the OH&S Act requiring you as an employee to assist the employer to meet their obligations under the OH&S Act. If there is further issues with these requirements by us as your employer please take the matter up with your union tomorrow as our National Executive will be liaising with your Union representatives on this matter tomorrow." 15 Mr Lowe deposed that he considered himself fit for work and objected to further examination. 16 This issue gave rise to a dispute notification pursuant to s130 of the Industrial Relations Act 1996 ('the Act') by the company, matter number IRC 717 of 2001, heard by Bishop C on 13 February 2001. The Commissioner recommended that Mr Lowe cooperate with the company's request for further medical examination. 17 Mr Lowe was subsequently examined by Dr C Kafataris, an Injury Management and Corporate Medical Consultant, on 27 February 2001. 18 The evidence of Mr Houston is that he was informed on 28 February 2001 by Dr Kafataris that Mr Lowe has a risk of recurrent back injury. A written report was received from Dr Kafataris on 8 March 2001 (att B to ex 6, Mr Houston's affidavit of evidence). The relevant aspects of that report are appropriately restated here. In the recitation of history Dr Kafataris states: HISTORY "The patient injured himself while lifting an outboard motor off the back of a boat. He turned to put it on the ground and felt a "burning" pain in his lower back. He consulted his local medical officer who gave him a period of time off work. Over the course of the month of December he noted that his back was still irritable with sitting in a car so he continued a period of rest. He then made a return to some activity with no lifting or pushing. He apparently returned to see his local medical officer on the 30/10/01 where he had "a slight twinge", and was given a further 3 weeks off. The patient states that his general practitioner diagnosed a "strain" and there was no physiotherapy commenced. At some point an x-ray and CT scan were ordered. The patient states that he has now fully recovered from his symptoms and states that he has no back pain whatsoever. He has no leg pain with no neurological symptoms. He has no sexual dysfunction and is sleeping well. He is currently taking no medication. As a testament to this, he states that he is now mowing the grass and has painted his house recently." DISCUSSION WITH RELEVANT PARTIES The patient's condition has been discussed on several occasions with Mr Terry Prosser and Mr Steve Houston representing the employer. Mr Houston stated that he had some concern as to the patient's fitness to return to his pre-injury duties after such an extended period of time off. I advised Mr Houston that the patient appeared to have completely recovered from the injury however he was at least a medium risk of recurrences of lower back pain given his level of fitness, age, history of back injury, and the CT scan findings. I had some reservation that the patient would be able to return to his vendor duties without a reasonable element of risk of recurrence. I advised him that the CT scan findings at present were asymptomatic however the risk of the disc prolapse becoming a surgical one existed. OPINION This man appears to have suffered an episode of mechanical lower back pain from which he appears to have recovered. It is of concern that the patient had approximately 2 months off work with no active treatment. The patient's current level of fitness is a little questionable. The CT scan finding of a disc protrusion may or may not be related to his current injury. If it is related to his current injury, then either the patient is not being truthful with respect to his absence of symptoms or the disc lesion is asymptomatic. I do not question the fact that the patient's symptoms have settled. The more pressing issue is whether this man is fit to return to his pre-injury duties. It is my opinion that there exists a significant risk of recurrence of lower back pain with his pre-injury duties. The patient has been away from these duties for some time and an element of deconditioning as far as his lumbar and trunk muscles is likely to have occurred. Besides this there exists an asymmetric disc protrusion that although not symptomatic at present, may become symptomatic or even progress to a herniation causing nerve root compression with another significant manual handling injury. The patient's large abdominal scar combined with his obesity will all contribute to poorer abdominal and trunk strength. The patient's duties are such that he is required to handle several hundred crates of bread per day. In one delivery he may have to handle up to 40 crates of bread to load and unload. This is in my opinion repetitive manual handling of moderate weight. The combined weight of this could be as high as 1000kg. When one combines this, with the likely need for awkward postures when climbing in and out of the truck, then risk is higher. In summary, I do not dispute the fact that the patient has recovered from his acute injury. It is my opinion however that when one considers the patient's current functional status and one considers the demands of his job, that there exists a significant risk of recurrence of his lower back pain with a return to these duties. There also exists the prospect of a worsening in the disc herniation that has already occurred. The fact that the patient has had no active treatment is also likely to be a factor. The patient may benefit from a resistance exercise program to address some of the abnormalities noted on examination. This may improve his ability to manually handle loads, however the degree of protection to the already damaged disc remains a little questionable. I would suggest that before a medical practitioner can determine whether this man is fit to return to his pre-injury duties, that a formal workplace assessment detailing the amount and frequency of the loads is reviewed by this medical practitioner. Following this the medical practitioner should be asked to comment specifically on whether or not these duties would be safe given the abnormalities already noted on CT scan, and the fact that a past history of lower back pain is a consistently reproducible risk factor for further lower back pain in the future. (emphasis added) 19 Mr Lowe was informed that he would be required to undertake a workplace assessment in accordance with the recommendation of Dr Kafataris. Mr Lowe lodged an application for compensation pursuant to the Worker's Compensation Act 1987 and agreed to participate in the workplace assessment which was scheduled for his convenience on 1 May 2001. 20 The evidence of Mr Houston is that on or about 21 April 2001 Mr Lowe informed him that he no longer wished to participate in the workplace assessment and arrangements for the assessment were cancelled. 21 During this period Mr Lowe was subject to examination at his own initiative, referred by Dr Sooy, by Professor Michael Ryan, an Orthopaedic Specialist and Clinical Associate Professor of Surgery, Orthopaedic and Spinal Surgery, who lists in his biographical details specialist expertise in the diagnosis and treatment of degenerative, traumatic and malignant conditions of the human adult spine. 22 Professor Ryan issued a report dated 18 April 2001 (att D to ex 4) which states in part: "On examination, Mr Lowe had a full free range of lumbo-sacral flexion without inhibition. He had no root tension signs in his lower limbs and no signs of irritative or compressive neuropathy. He has a long right paramedial cholecystecomy/appendicectomy scar on his abdomen. At present his trunk and abdominal muscles are not as strong as they could be. I have advised him to pursue a trunk and abdominal isometric exercise program. As far as bread vending is concerned, Mr Lowe is fully fit to return to work. The findings in his lumbro-sacral CT scan (a small central disc herniation at L4/5) are irrelevant" 23 This report, forwarded to the company, failed to satisfy their concerns. The evidence of Mr Houston is that the company remained insistent that a workplace assessment be undertaken in accordance with the recommendation of Dr Kafataris. 24 Evidence brought on behalf of the respondent asserts that Mr Lowe was aggressive and hostile in communications with them at this time, refusing to cooperate and abruptly terminating telephone conversations by hanging up on them. Mr Lowe denies these assertions. 25 Arising from discussion between Mr Lowe, his union representatives and the company a workplace assessment took place on 15 May 2001. This assessment was conducted by a Ms K Doran, Occupational Therapist. 26 Ms Doran issued a report on 21 May 2001 (att. E to ex 6). This report is comprehensive and detailed, setting out the tasks, functions and activities required to complete Mr Lowe's bread vending duties relevant to the distribution area allocated to Mr Lowe. 27 While this report carefully and precisely details the requirements of the position, it makes no conclusion as to Mr Lowe's ability or otherwise to carry out these tasks. The purpose of the report described by its author is to provide information to assist both parties to determine Mr Lowe's fitness to return to work in his pre-injury capacity. 28 The evidence of Mr Houston is that the company considered the information obtained from the workplace assessment and maintained its view that Mr Lowe would not be allowed to return to employment. This was conveyed to Mr Lowe in correspondence dated 4 June 2001 (Att F. to ex 6 and Att C to ex 4) in the following terms: "This letter is to advise you the company is reviewing your contract as per the Bread Vendors (Tip Top Newcastle) Award. The company's duty of care has been considered and with the information available we cannot ensure your safe return to work as discussed on earlier occasions. Unless you can provide additional information as to your physical condition and ability to safely perform your pre injury duties within the next 7 days from the date of this letter then the company is considering treating your contract as terminated, due to frustration of your contract. We invite you to present anything that you would like the company to consider before making a final determination regarding your contract. " 29 Mr Lowe responded to this correspondence by providing a further certificate from Professor Ryan and instructing his union to initiate these proceedings, seeking relief from threat of unfair dismissal. 30 It was established during the initial stages of these proceedings that Mr Lowe's employment had not been terminated, though the company maintained an intention to do so. Arrangements were made that provided for continuation of employment pending conclusion of these proceedings. 31 A further report was obtained from Professor Ryan dated 14 August 2001 (ex 1) which provides an analysis of the building and renovation work being undertaken by Mr Lowe during the period of suspension of his employment. This work including activities such as carrying and laying bricks, gyprocking, lifting boards 2.4 x 1.2 meters, collecting stubs and applying these to the ceiling, painting, tiling , plumbing, climbing on to the roof and putting on roofing iron, detaching gutters and fascia boards, carrying boxes of tiles weighing 25 kgs, carrying cement bags weighing 20-40 kgs, mixing cement by hand, shovelling sand and cement together, transporting cement by wheel barrow, sometimes up a steep incline. Professor Ryan concludes his report in the following terms: "Mr Lowe has no symptoms referable to his spine. His trunk and abdominal muscles are quite strong despite a relatively protuberant abdomen (he has lost about 6 kgs in weight since last April). He has a full range of free spinal motion without evidence of irritative or compressive neuropathy. I can see no logical reason why Mr Lowe cannot return to work. He is keen and enthusiastic to do so. There is no scientific reason in terms of health and safety why he should not return to work." 32 A further report was obtained by the company from Dr Kafataris dated 23 August 2001 (Att G to ex 6). In this report Dr Kafataris analyses the information available from the workplace assessment report, concluding that it is not possible to guarantee that Mr Lowe would be able to sustain his duties in the long term without risk of a substantial worsening in his lower back function and overall condition. Dr Kafataris repeats his caution that the possibility of disc herniation requiring surgical intervention is likely to rise with the length of time the duties of a bread vendor are performed, noting that these circumstances are exacerbated when the duties are performed in inclement weather and at a faster pace. Dr Kafataris concludes his report stating his suggestion that, from an occupational health and safety point of view, Mr Lowe would be better served by not returning to these duties. SUBMISSIONS 33 Mr Lloyd was critical of the company's disregard of the opinions of Dr Sooy and Professor Ryan in favour of the views expressed by Dr Kafataris. Mr Lloyd submitted that the company was inappropriately dismissive of Mr Lowe's own view, albeit subjective, that he was fully fit and ready to resume the duties of a bread vendor with which he is intimately familiar, having undertaken them for some 12 years. 34 Mr Lloyd noted that at no time had the company attempted to provide occupational rehabilitation to Mr Lowe, considering him excluded from such activity by the company policy on the basis that his injury was not compensable pursuant to the Worker's Compensation Act 1987. 35 Mr Lloyd relied upon the opinion of Professor Ryan to support his proposition that there were no barriers to Mr Lowe's return to his pre-injury duties, asserting that the company has taken a narrow and blinkered view of the matter, refusing to countenance any opinion other than that of Dr Kafataris. 36 Mr Lloyd submitted that the company's reliance on the Occupational Health and Safety Act ('OH&S Act') is inappropriate and that legislation provides no prohibition to Mr Lowe's return to work. Mr Lloyd submitted that the duty imposed by s15 of the OH&S Act is in regard to the system of work. 37 In support of these submissions Mr Lloyd referred me to the judgment of Glynn J in Workcover Authority of New south Wales (Inspector Mansell) v Air Express International (Australia) Pty Ltd (1998) 83 IR 64 in which her Honour at 71 sets out the principles governing the assessment of penalty for a breach of the OH&S Act: The principles governing the assessment of penalty are well established in this jurisdiction: 'properly considered ... the true measure of penalty lies in the nature and quality of the offence and not merely the result of the offence' (see Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, NSW Industrial Court, Full Court, 10 March 1996, p 4)). It was said by Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 at 5: ... However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant as are the measure of gravity of the breach itself and the measure of culpability . In Inspector Graeme Mauger for the WorkCover Authority of NSW v P Ward Civil Engineering Pty Ltd (unreported, NSW Industrial Court, Fisher CJ, 21 December 1995) Fisher CJ noted: 'This case is similar to that described in Hannah v Wonar Pty Ltd (1992) 34 AILR 377, where it was said that there was a known and perceived danger, unchecked and left in place. The seriousness of those errors was not open to denial and the case must be assessed on that basis. It was further said: The primary factor falling for consideration in relation to penalty, is the nature and circumstances of the offence. The result of the circumstances may be relevant in a very limited way, in the sense that it may illustrate the seriousness of the act or omission in the breach of statutory duty being assessed. Obviously, a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences. Applying these principles it has to be said that the nature and quality of the offence did involve a failure that was a serious and obvious one. The accident could be readily prevented by the abandonment of an essentially hazardous system of work…." 38 Mr Lloyd submitted that the weight of medical evidence in this matter suggests that further injury to Mr Lowe is not foreseeable and that the gravity of risk does not approach by any degree that sufficient to warrant termination of employment. Mr Lloyd submitted that on the medical evidence provided Mr Lowe was at no greater risk than any other employee. 39 Mr Lloyd submitted that the company's behaviour in its attitude towards Mr Lowe's further employment is properly categorised as over zealous and inflexible, founded on an incorrect interpretation of its obligations under the OH&S Act. Mr Lloyd submitted that there must be an appropriate balance between the company's perception of the risk to health and safety and the rights of Mr Lowe as an employee to continue in his employment. 40 Mr Lloyd supported this submission with an argument that where an employer places restrictions on an employee due to perceived risk, this should be commensurate with the level of risk and at all times reasonable in the circumstances. Mr Lloyd put that termination of employment is a restriction of last resort only available when all other means of protecting the health and safety of an employee have been exhausted. Mr Lloyd submitted that any perception of risk developed by an employer must be well grounded and genuine. 41 Mr Lloyd submitted that the medical advice available does not ground a genuine risk to Mr Lowe giving rise to a real and tangible threat of injury should he continue to perform his pre-injury duties. Mr Lloyd put that the medical evidence from all three medical practitioners, Dr Sooy, Professor Ryan and Dr Kafataris, is that Mr Lowe has recovered from the injury sustained on 6 December 2000, the only difference between them being Dr Kafataris' view of future potential risk. Mr Lloyd suggested that the first report of Dr Kafataris (att. B to ex 6) was flawed as it was based on the false premise that Mr Lowe was required to work a 10 hour shift, which is not the case. 42 Mr Lloyd submitted that if the company was concerned that a potential for injury arises from the way in which the work is required to be carried out, then that should properly be addressed by an alteration to the work arrangements and the introduction of appropriate technology such as the use of hydraulic or other lifting apparatus so as to mitigate any such risk. 43 Mr Lloyd submitted that in consideration of this alternative the resources available to an organisation of the size and capacity of George Weston Foods Pty Ltd is a relevant consideration. Mr Lloyd put that George Weston Foods Pty Ltd, owner and operator of Tip Top Bakery, is a large organisation of vast resources which ought properly undertake alternative risk alleviation in preference to termination of employment. 44 Mr Lloyd submitted that the termination of Mr Lowe's employment would be harsh, unreasonable and unjust when examined against the provisions of s88(b) of the Act which provides that the Commission may, if appropriate, take into account the reason for termination of employment, its nature and whether it has a basis in fact. Mr Lloyd submitted that the reason proffered by the company has no basis in fact as it is not supported by available medical opinion, nor proper application of the requirements of the OH&S Act. 45 Mr Lloyd further relied upon the requirement of s88(b) of the Act which goes to the opportunity provided to an applicant to make out a defence or give an explanation, submitting that proper opportunity to make out a defence or give an explanation was never afforded to Mr Lowe on the basis that the report of Dr Kafataris, upon which the company relied to support the termination of employment, was not provided to Mr Lowe until the commencement of these proceedings. 46 Mr Lloyd submitted that the termination of Mr Lowe's employment would be harsh as he would then become unemployed at a relatively advanced age in an area where employment is not readily available and with an employment background of the specialised skills of a bread vendor. 47 Mr Lloyd relied upon the decision of Peterson J in Wells v Commissioner of Police [2000] NSWIRComm 157 in which his Honour discussed the concept of harshness, adopting therein the comments of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 where is was said by their Honours: "termination of employment may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity to the misconduct in respect of which the employer acted." 48 Mr Lloyd further relied upon the judgement of a Full Bench of the Australian Industrial Relations Commission (AIRC) in Construction, Forestry, Mining and Energy Union on behalf of M S Kennedy v Cumnock No 1 Colliery Pty Ltd Print No 901496, wherein it was held that the perceived risk to Mr Kennedy (employed in the arguably more dangerous occupation of an underground coal miner) which may arise should he fail to take prescribed medication was not sufficient grounds upon which to terminate his employment. 49 Mr Lloyd further referred to the Bread Vendors (Tip Top Bakeries - Newcastle) Award 316 IG 558 ('the award') which, at clause 21, Termination of engagement, requires three months notice in writing to a bread vendor to terminate the employment. Mr Lloyd noted that whilst the company had expressed an intention to terminate Mr Lowe's employment, the required notice pursuant to cl 21 of the award has not been given. 50 Mr Lloyd further relied upon s169 of the Act which requires that the Commission must, in the exercise of its functions, take into account the principles contained in the Anti Discrimination Act 1997 (ADA). Mr Lloyd put that the ADA makes it unlawful to discriminate against a person on the grounds of disability, or in this case supposed disability, to treat a person less favourably than others in the same situation without the disability or the supposed disability. Mr Lloyd noted that the defence available to the employer in such circumstances is the inherent requirements of the job. Mr Lloyd argued that Mr Lowe suffers no disability, is capable of performing the inherent requirements of the job, and is to be discriminated against by being treated differently to other persons on the basis of a perceived limitation which he put is offensive to the provision of the ADA. 51 Ms Pattison submitted that it is the company's belief that as a result of Mr Lowe's injury, which she emphasised is not an injury which brings the applicant within s91 of the Act, he is unable to return to his pre-injury duties. 52 Ms Pattison submitted that termination of employment would not be harsh, unreasonable or unjust, putting that a proper reason, being the concern of the company that future injury may occur, was advanced and Mr Lowe given an opportunity to respond. Ms Pattison submitted that the communications to Mr Lowe detailed in the evidence in this matter demonstrate that he has been treated fairly. 53 Ms Pattison relied upon s8 of the OH&S Act which imposes a duty of care upon an employer to ensure the health, safety and welfare of an employee. Ms Pattison put that it is the company's belief that to allow Mr Lowe to return to work as a bread vendor would be inconsistent with that requirement. Ms Pattison noted that whilst Mr Lowe's injury is not one compensable pursuant to the WCA, s47 of that act remains a relevant consideration. S 47, Incapacity deemed to exist in certain cases, states: A worker who, as a result of injury, is unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment shall be deemed to be incapacitated for employment of that kind. 54 Ms Pattison submitted that it is the company's belief that Mr Lowe does have a substantial risk of further injury. She submitted that this conclusion is supported by the period of eight weeks absence due to incapacity, exacerbated by the fact that no active treatment had been undertaken during the period of incapacitation, and the absence of any recommendation from Dr Sooy that Mr Lowe undertake physiotherapy. Ms Pattison submitted that, whilst Dr Sooy had certified Mr Lowe fit for full duties, the company remained concerned that Dr Sooy did not comprehend the nature of the duties that he had certified Mr Lowe fit to undertake, leading to the reference to Dr Kafataris and the subsequent workplace assessment detailed above. 55 Ms Pattison relied upon the reports of Dr Kafataris to support her submission that if Mr Lowe were to return to his pre-injury duties there would remain a risk of lower back pain and disk herniation. Ms Pattison noted that the workplace assessment revealed that the job of a bread vendor is quite strenuous, involving manual handling, lifting and pushing. 56 Ms Pattison relied upon the evidence of Mr Houston that there are no alternative duties or job modifications available which would alter the circumstances as perceived by the company. 57 Ms Pattison acknowledged the report from Professor Ryan stating that Mr Lowe was fit for duty, however the company remains concerned as to Professor Ryan's understanding of the tasks required and preferred the opinion of Dr Kafataris, whom she put had a detailed understanding of the tasks and functions of a bread vendor. 58 Ms Pattison canvassed the evidence of communications between the company and Mr Lowe and his union representatives, submitting that there was no flaw in the communications and accordingly no difficulty when the events and reason for termination were considered against the requirements of s88(b) of the Act. 59 Ms Pattison submitted that Mr Lowe had been given a "fair go" by the company, however had failed to reciprocate having regard to his reluctance to participate in the workplace assessment, only doing so after proceedings before Bishop C; the filing of a workers compensation claim for an injury which did not occur during the course of his duties; and adopting a volatile disposition during several telephone conversations with company representatives. 60 Ms Pattison submitted that this conduct demonstrates a general unwillingness and lack of cooperation, and should be seen to be in breach of s12 of the OH&S Act which required the employee to cooperate with the employer. Ms Pattison put that these events further demonstrate a breakdown in the employment relationship which renders continuing employment impractical. 61 Ms Pattison submitted that as a bread vendor Mr Lowe is required to work unsupervised and is the company's point of contact with customers, requiring a particular level of trust and confidence, which she submitted has been shattered by the lack of cooperation on the part of Mr Lowe and the filing of his workers compensation claim. 62 Ms Pattison submitted that the matter should not descend to a contest as to which medical advice is to be preferred, putting that this is an issue the company declined to adopt, preferring in her submission, the proper course of setting out the advice of Dr Kafataris, the reasons it was followed, and the belief that the conclusion to terminate Mr Lowe's employment was not harsh, unreasonable or unjust. 63 Ms Pattison submitted that the report of Dr Kafataris could not be regarded as flawed on the basis that it states the length of shift worked by Mr Lowe as 10 hours, as compared to the evidence of Mr Lowe that the shift is approximately five hours. Ms Pattison submitted that Mr Lowe must be the source of any flaw in that report as the information provided to Dr Kafataris came from him via the workplace assessment process. Ms Pattison submitted that whether the required deliveries in any one shift were completed in five hours or 10 hours depended entirely upon the speed at which Mr Lowe performed his duties, putting that the risk of injury increased as the speed at which Mr Lowe chose to work increased. 64 Ms Pattison submitted that the company came to the conclusion that given the nature of the bread vendor's duties and the significant risk outlined by Dr Kafataris, Mr Lowe could not be allowed to return to work as these risks cannot be managed nor the duties modified. Ms Pattison submitted that Mr Lowe's desire to return to work does not automatically equate to a capacity to perform that work. 65 Ms Pattison submitted that termination of employment would not be harsh and relied upon the definition of "harsh" found in the Concise Oxford Dictionary as "cruel and unfeeling" to support this contention. Ms Pattison submitted that it would be cruel and unfeeling, and accordingly harsh, to allow Mr Lowe to return to his pre-injury duties and expose him to significant risk of further impairment as detailed in the report of Dr Kafataris. 66 Ms Pattison distinguished the present circumstances from Kennedy in which Mr Kennedy was suffering a major depressive illness capable of treatment by medication, the risk being that Mr Kennedy would fail to take his medication which Ms Pattison put did not go to the inherent nature of the work as does a back injury, which is the case here, when considered against the duties of a bread vendor. 67 Ms Pattison submitted that the circumstances faced by the company were difficult and distasteful, brought about by the competing requirements of the OH&S Act to ensure the health, safety and welfare of the employee, and the right to continue employment. Ms Pattison submitted that on balance the company is unable to ignore the assessment of significant risk made by Dr Kafataris and that to allow Mr Lowe to return to pre-injury duties in those circumstances would be a disservice to him and expose the company to accusations of negligence. 68 Ms Pattison submitted that Mr Lowe's capacity as a union delegate and his refusal to move from his vendor's role are not elements of consideration in this matter, which has been pursued purely on the basis of obligation to health and safety. 69 Ms Pattison submitted that the entire process has been expensive and difficult for the company, made more so by the lack of cooperation by Mr Lowe resulting in a period of 10 months since he has carried out work of a bread vendor, which she put further reduced his capacity to return to that employment as he is by now deconditioned to this type of work. 70 In supplementary written submissions received on 21 September 2001, Ms Pattison relied upon an attached report from Dr Kafataris of 20 September 2001 which analyses the opinions of Professor Ryan, previously put in evidence. Ms Pattison submits that the report of Professor Ryan dated 14 August 2001 (ex 1) lacks sufficient specificity to be relied upon and that this report of Professor Ryan reads more in the nature of an advocate than a professional witness and the value of his opinion is thus diminished. 71 Ms Pattison refers to a decision of Maidment J in Betty Bouchub Silaphet v South Western Area Health Service [1998] NSWIRComm 122. 72 Ms Pattison relies upon the comments of Dr Kafataris that the work of cottage renovation could not be considered comparable to that of a bread vendor as in the former tasks Mr Lowe could work at his own pace, whilst engaged as a bread vendor the work must be completed within time constraints. Dr Kafataris disputes the view of Professor Ryan that the work of a bread vendor may be considered "light duties" and, while conceding cottage renovation may indeed be relatively heavy work, it is in his opinion different and the capacity for tolerance different, noting that "if vendor duties were indeed quite light, then it is unlikely that there would have been several cases of significant spinal injury with these duties in the past". 73 In the report of 20 September 2001 Dr Kafataris offers the following opinion: OPINION While I take Professor Ryan's comments and opinion, and agree that he currently has no symptoms referrable to his spine, I have not seen any evidence that alter my previous opinion particularly with respect to his prognosis. Specifically, while he has recovered from the acute injury, his pre-injury duties do involve a significant manual handling. While I accept that "renovating cottages" may also involve significant manual handling, the fact remains that the employer has a history of the vendor duties causing significant injuries to cervical spine, lumbar spine, and shoulders. It is not clear whether Professor Ryan has acknowledged this fact and he certainly makes no reference to this in his report." 74 In submissions in reply, Mr Lloyd submits that the views of Dr Kafataris do not shake those professed by Dr Sooy and Professor Ryan that Mr Lowe is fit to resume his duties. Mr Lloyd submitted that the company has failed to honour an undertaking made to Bishop C that it intended to treat injured workers in a similar fashion regarding return to work, irrespective of whether their injury or illness was work related, putting that Mr Lowe has not been treated in the same manner as if his injury had been work related. 75 Mr Lloyd puts that Mr Lowe has not breached s19 of the OH&S Act, has not been uncooperative with the company, and that there has been no breakdown in the employment relationship which would prevent a return to work. 76 Mr Lloyd put that Mr Lowe is quite capable of performing all the inherent requirements of the position. 77 Mr Lloyd relies on the report of Professor Ryan of 14 August 2001 (ex 1) to refute the notion that Mr Lowe has suffered de-conditioning, noting that the report states that "Mr Lowe's trunk and abdominal muscles are quite strong and that he has lost 6 kg in weight since April 2001." 78 Mr Lloyd takes issue with the most recent report of Dr Kafataris, dated 20 September 2001, contained in the supplementary submission of Ms Pattison , in which Dr Kafataris asserts that Mr Lowe has "a significant injury requiring several months off work", where in fact Mr Lowe was unfit for work for a period of less than eight weeks. 79 Mr Lloyd submits that this is further evidence that the opinions of Dr Kafataris are poorly grounded, arguing that in any event they are significantly outweighed by those of Dr Sooy and Professor Ryan. CONSIDERATION 80 The parties advanced that the issues for determination in this matter go to the question of Mr Lowe's fitness or otherwise to undertake the duties of a bread vendor; and whether the provisions of s15 of the OH&S Act operate in such a way as to require the employer not to engage Mr Lowe in bread vending duties where there is a risk of recurrence of injury to him. 81 Medical evidence was produced in documentary form, none of the practitioners being brought by either party to give evidence or be subject to cross examination in respect to their opinions. The material presented offers an unequivocal opinion from Dr Sooy, Mr Lowe's treating medical practioner, and Professor Ryan, an eminently qualified Orthopaedic Surgeon, that there is no medical impediment to Mr Lowe carrying out the duties of a bread vendor. The opinion of Dr Kafataris is that, whilst there are no present impediments, there is a risk of further injury should Mr Lowe carry out the functions of a bread vendor, which Dr Kafataris suggests is exacerbated by the lack of treatment for his initial injury and a process of deconditioning to the work involved by having been absent from it. 82 It is appropriate to note that in the reports of Dr Kafataris he suggests that benefit may be achieved from a resistance exercise program which may improve Mr Lowe's ability to manually handle loads. 83 I find in favour of the submissions by Mr Lloyd that the balance of this evidence puts Mr Lowe at no more or less risk than any other person carrying out these duties. The argument advanced by Mr Lloyd that Mr Lowe is a bread vendor of 12 years experience without workplace injury suggesting that he has developed personal techniques and ability to perform this work is logical. 84 Any concerns held by the company in respect to the deconditioning of Mr Lowe may be addressed by an appropriate return to work program in accordance with the company's policy for rehabilitation of injured workers. 85 I note that the injury giving rise to these proceedings and the absence from employment is not one which falls within the Workers' Compensation legislation, however this is not, in the circumstances of this matter, a basis on which Mr Lowe should be precluded from the benefit of return to work rehabilitation procedures developed by the company for that purpose. 86 Mr Lowe has not performed the duties of a bread vendor for some 12 months. It is relevant that ten or more of those months are a consequence of the company's refusal to allow Mr Lowe to return to employment when certified fit to do so by his treating medical practitioner. That action gave rise to a series of exchanges and communications between the parties, resulting in allegations that Mr Lowe had not cooperated pursuant to s19 of the OH&S Act. 87 I find there is no substance in these allegations. 88 I accept the submission of Ms Pattison that the company's attitude to Mr Lowe is not in any way influenced by his decision to remain a bread vendor rather than a distributor, nor the fact that he has been a union delegate. 89 Mr Lloyd argued that the company had misconstrued its obligations pursuant to s15 of the OH&S Act, arguing that the employer's obligation should be viewed in terms of the system and method of work, the way in which it is undertaken, and the training provided having regard to the capacity to perceive and thereby remedy any risk to the health, safety and welfare of employee's. 90 This approach is supported by the judgment of Glynn J in Air Express. Whilst an employer may properly set physical capabilities for employment and exclude from engagement persons who are not able to satisfy the genuine physical requirements inherent in a particular position, there is, in my view, a significant difference between that application of employment criteria and the assessment of risk of physical deterioration of an individual who has, for a lengthy period of time, performed the subject duties without incident. 91 A discussion of these principles may be found in Commonwealth Steel Company Limited and David Alfred Ward, a decision of a Full Bench of the Commission (Hill, Hungerford JJ, Shiels CC, IRC 3144 of 1993, 16 December 1994, unreported) wherein the Bench, dealing with expert medical opinion, comments that: "…the respondent (Mr Ward) is, in fact, to quote Dr Kleinman, 'quite capable of doing his job at present.' The problem lies in the future. But as Dr Kleinman stated in his evidence this is really a matter of hypothesis or conjecture and no certain or definite prognosis can be made. His view is that, having regard to the previous back injury, which required intervention, and the fact that the respondent still gets backache and sciatica, 'it is likely that some time in the future he is going to get an exacerbation of backache and sciatica which will prevent him from working.' On the other hand, Dr Kleinman gave relatively emphatic evidence that, balancing all considerations in the matter, it was in the interests of the respondent that he should continue to work and that opinion by Dr Kleinman was not qualified in any way so as to exclude the continuation of work by the respondent in his present occupation." 92 In Ward the Full Bench ordered a continuation of Mr Ward's employment. 93 The assertion that risk of re-injury is increased by the absence of prescribed treatment or physiotherapy for Mr Lowe's injury of 6 December 2000 is curious as such lack of treatment would, in my view, more logically be indicia that the injury was of lesser substance than one which required treatment or active surgical intervention. 94 This interpretation of s15 of the OH&S Act is further supported by the decision in Ward wherein the Bench says: "We would, however, make it clear that our confirmation of the order of reinstatement which was made by the Commissioner at first instance proceeds upon the basis that the respondent uses and will continue to use particular and safe working postures and procedures in the carrying out of his duties, and on the assumption that the appellant adopts, in the context of the nature and circumstances of the operations generally in the heavy foundry area, safe working practices and systems of work which otherwise comply with the requirements of s15 of the Occupational Health and Safety Act 1983." 95 Whether the systems of work are appropriate and adequate is not central to these proceedings, however, concern must be generated by the comments of Dr Kafataris in his report of 20 September 2001 that the employer has a history of bread vending duties causing significant injuries to cervical spine, lumbar spine, and shoulders. These are matters for the company to attend to in the proper application of its obligations pursuant to s15 of the OH&S Act. However, it would appear that, whilst others have suffered injury doing this work, Mr Lowe has not and it is not, in my view, possible to categorise Mr Lowe within s47 of the OH&S Act so as to exclude him from future employment. 96 I find that the termination of Mr Lowe's employment would be harsh, unreasonable and unjust and accordingly order pursuant to s89(7) of the Industrial Relations Act 1996 that George Weston Foods Ltd trading as Tip Top Bakeries refrain from termination of Mr Lowe's employment. 97 Matter No IRC 4279 of 2001 is so concluded. oo0oo INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 7 December 2001 Matter No IRC 4279 of 2001 AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS' UNION, NEW SOUTH WALES BRANCH (ON BEHALF OF KEVIN LOWE) AND GEORGE WESTON FOODS LTD T/AS TIP TOP BAKERIES Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ORDER Pursuant to section 89(7) of the Industrial Relations Act 1996 George Weston Foods Limited, trading as Tip Top Bakeries, is ordered to refrain from termination of employment of its employee, Mr Kevin Lowe. I so order. The Hon R W Harrison DEPUTY PRESIDENT DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.