Industrial Relations Commission of New South Wales CITATION : Banning v Great Lakes Council [2002] NSWIRComm 47 PARTIES : David William Banning Great Lakes Council FILE NUMBER: IRC 3593 of 2001 CORAM: Harrison DP CATCHWORDS : Application for relief from unfair dismissal - dismissed due to injury - contravention of s99 - dismissal less than six months from first becoming unfit for employment - rehabilitation policy not followed Held - dismissal harsh, unreasonable and unjust - reintatement ordered - costs to applicant LEGISLATION CITED : Industrial Relations Act 1996 Workers Compensation Act 1987 Commonwealth Steel Co Ltd v Ward (IRC3144 of 1993, Hill, Hungerford JJ, Sheils C, 16/12/94, unreported) Effem Foods Pty Ltd v Urban [1998] 83 IR 341 Silaphet & Ors v South Western Area Health Service [1998] 80 IR 365 Petrekin v Finedesign Furniture (ACT) Pty Ltd (IRC1994/51, Sheils CC, 11/5/094, unreported) CASES CITED : Murphy v Council of City of Sydney [1992] 45 IR 339 Big W Discount Stores v Donato [1995] 58 IR 239 Foley v Qantas Airways Ltd [1996] 70 IR 263 Mitchell v Macquarie Health Service [1995] 67 IR 107 Patterson & anor v Newcrest Mining Ltd [1996] 67 IR 101 Moses v IGA Distribution Pty Ltd (IRC2001/1550, Cambridge C, 20/8/01, unreported) HEARING DATES: 12/13/2001 DATE OF JUDGMENT: 03/18/2002 APPLICANT Mr David Banning LEGAL REPRESENTATIVES: RESPONDENT Mr B Potocki Local Government Shires Association of New South Wales JUDGMENT: 16 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Monday, 18 March 2002 Matter No IRC 3593 of 2001 DAVID WILLIAM BANNING & GREAT LAKES COUNCIL Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2002] NSWIRComm 47 1 This matter was subject to arbitration proceedings on 13 December 2001 consequent upon unsuccessful attempts at conciliation commencing in June 2001. 2 Mr D Banning, the applicant, appeared on his own behalf. Mr B Potocki of the Local Government Shires Association of New South Wales appeared on behalf of Great Lakes Council ('the Council'), with Mr G Frappell. 3 Mr Banning provided a statement of evidence (ex 1) and was subject to cross examination by Mr Potocki. 4 Mr Potocki brought evidence from Mr Graeme Frappell, employed by the Council as Manager, Personnel Services. THE EVIDENCE 5 Mr Banning was employed by the Council from 12 April 1989 to 8 June 2001. Mr Banning's evidence is that he was employed by the Council for some 12 years in many and various departments, carrying out the duties of virtually all positions within the outdoor section of Council operations. There is some dispute concerning the extent of experience acting in a small range of positions, however, this is not material to consideration in this matter. 6 Mr Banning asserts that the termination of his employment was unfair in that it was in contravention of s 99 of the Industrial Relations Act 1996 ('the Act') being less than six months after he first became unfit for employment; and secondly that Council failed to afford him an equitable and reasonable opportunity for rehabilitation and redeployment to suitable tasks. 7 Mr Potocki denies breach of s 99 of the Act, asserting that Mr Banning first became unfit for employment within the meaning of that term as found in s 99 of the Act at least from the date of aggravation of his back injury on 26 October 2000. 8 Mr Potocki relies on the evidence of Mr Frappell founded on a Rehabilitation Compliance Statement prepared by Council in respect to Mr Banning, tendered during the conciliation process and marked for identification as MFI 6. This document includes a copy of the Occupational Rehabilitation Policy adopted by Council in accordance with the Workers' Compensation Act 1987 (NSW) ('the Workers Compensation Act). The Compliance Statement details a history of injury treatment and rehabilitation procedures. MEDICAL HISTORY 9 Mr Banning suffered an injury to his back on 7 July 1997. He was off work for one and a half days, resuming duty without restriction. 10 The information contained within MFI 6 discloses that subsequent to the initial injury on 7 July 1997 Mr Banning resumed normal duties on 19 July 1997 and continued with weekly physiotherapy treatment for a further two month period. 11 Mr Banning consulted a Dr Clementson on 20 May 1998 who referred him to further physiotherapy and remedial massage, certifying him fit to continue with pre-injury duties. On advice from the treating physiotherapist, Mr Banning undertook an eight week back care program and was afforded time off work between 1.30 pm and 2.30 pm two days per week to attend the program. 12 A report dated 21 September 1998 on the outcome of this initiative (att. 5B to MFI 6) states in part: David has reported an overall improvement in his back pain as a direct result of the gym programme. He was an eager participant in the gym programme and attended all but one session. During the programme, David's motivation to improve increased markedly as the weeks progressed. He said that he was starting to automatically brace his abdominal muscles and was becoming much more aware of his body mechanics during the functional exercises at the gym as well as activities at home and work. 13 At Council's initiative Mr Banning attended and successfully completed a Manual Handling Awareness Course on 1 October 1998. 14 On 25 March 1999 Mr Banning again consulted his treating doctor who recommended remedial massage on a monthly basis. Mr Banning did not take any time off work nor did the doctor impose any restrictions. 15 On 8 and 9 September 2000 Mr Banning was off work due to a "sore back" which was considered related to the initial injury and accordingly attracted workers' compensation payment. 16 On 26 October 2000 Mr Banning ceased work during the course of the shift as a result of aggravation of his back injury. The compliance statement asserts that Dr Nicholson referred Mr Banning to fortnightly physiotherapy and recommended work restrictions including not driving a truck from 7 November 2000. The Return to Work form completed by Dr Nicholson, attached to the medical certificate, details the restrictions on Mr Banning in the following terms: Restrictions (Tick if restricted and specify) Lifting No Bending no Pushing no Pulling no Trunk twisting no Sitting not greater than 40 minutes without a break Standing for longer than 30 minutes Walking Walking on uneven ground Squatting Climbing Elevating arms Fine manipulation Keying Travelling no truck driving Other 17 In light of the restrictions imposed Mr Banning was given alternative duties, commencing work in the Council Library on 10 November 2000 from 8.00 to 4.57 pm. On 14 November 2000 Mr Banning again contacted Dr Nicholson who restricted the working hours of Mr Banning to four 18 hours per day from 14 November to 21 November 2000 then six hours per day from 21 November to 28 November 2000, noting that he would reassess Mr Banning on 28 November 2000. 19 The Compliance Statement (MFI 6) then notes that Mr Banning attended his treating doctor on 24 November 2000 and was certified fit to resume pre-injury duties on 27 November 2000 (att. 9e to MFI 6) 20 Mr Banning returned to normal duties, putting that he was conscious of his back problem, taking care with stretching and bending and other physical movement, pending a specialist's appointment in January 2001 which had been made some six month's earlier. 21 It is Mr Banning's evidence that on resumption of pre-injury duties he requested Council to install a retractable tarpaulin on the truck he was to drive to assist in limiting risk of aggravation of injury from this activity. 22 There is some controversy between the parties on this issue. Mr Banning's evidence is that he was told that the type of retractable load cover he requested was too expensive and that a cheaper, less effective type was fitted. Council assert that an effective, retractable load cover was fitted which in any event was the only type of retractable load cover available for the particular vehicle. No evidence of detail is brought to allow a determination on this point. 23 MFI 6 states that Mr Banning was off work on 7 December 2000, 31 January 2001, and 1 February 2001 to attend appointments with Orthopaedic Surgeon Professor Ghabrial. Mr Banning consulted Dr Nicholson on 8 February 2001, where Council understand that the opinions arising from Professor Ghabrial's examinations were available, resulting in the issue of a certificate by Dr Nicholson imposing medical restrictions for a period of three months from 8 February 2001 to 8 May 2001. 24 Mr Banning presented the medical certificate dated 8 February 2001 to Council (contained in ex 3), issued by Dr Stephen Nicholson, his treating General Practitioner. This certificate states that Mr Banning was suffering lumbosacral strain and that the cause of injury as stated by Mr Banning was "tarping and twisted with sudden onset of back pain". The evidence records that the term "tarping" refers to the activity of placing a tarpaulin cover over the load on a Council truck to which Mr Banning had been allocated to drive. It is the responsibility of the driver to cover the load with a tarpaulin prior to driving on public roads. 25 This certificate advised that Mr Banning had previously undertaken fortnightly physiotherapy for this injury and that the treatment plan prescribed by Dr Nicholson was analgesics and anti-inflammatories. Dr Nicholson advised that he had referred Mr Banning to Professor Ghabrial, an Orthopaedic Surgeon, and would reassess Mr Banning on 8 May 2001. 26 These restrictions are detailed by Dr Nicholson in a Return to Work Form attached to the medical certificate issued on 8 February 2001 (attach. 12 to MFI 6). The restrictions are no lifting in excess of 10 kgs, no excessive bending, pushing, pulling or trunk twisting. The Return to Work Form states that Mr Banning is fit for the usual hours of work and that these restrictions would apply until 8 May 2001. 27 The certificate states that Mr Banning is fit for suitable duties from 8 February 2001 until 8 May 2001. 28 The evidence of Mr Banning is that on presentation of this certificate he was informed that no suitable duties were available and he was instructed to go home until Mr Bob Hosie, employed by the Council in the position of Risk/Insurance Co-ordinator Corporate and Community Services, returned from leave as Mr Hosie is the person in charge of employee rehabilitation. 29 Mr Banning's evidence is that he was subsequently informed that suitable duties were not available and his employment terminated with effect from 8 June 2001. He asserts that he had been off work for four months at the time of termination of his employment, which is less than the requirement of s 99 of the Act. 30 MFI 6 asserts at pt 13 that on presentation of the list of medical restrictions it was obvious that Mr Banning was unable to undertake his pre-injury duties or any duties where physical work was required. In the absence of any suitable duties Mr Banning was stood down. REHABILITATION 31 The Council has a well documented Occupational Rehabilitation Policy which is tendered within MFI 6. This policy states: Objective : It is the aim of Council to establish an occupational rehabilitation program which will be a prompt and effective strategy to assist injured workers. Requirements: This Council is committed to: 1. Preventing injury and illness by providing a safe and healthy working environment. 2. Ensuring that a return to work as soon as possible by an injured employee is a normal practice and expectation. 3. Ensuring that the occupational rehabilitation process is commenced as soon as possible after an injury in a manner consistent with medical judgment. 4. Providing suitable alternate duties, where possible, for an injured worker as an integral part of the rehabilitation process. 5. Consultation with our workers, treating doctors/rehabilitation providers and industrial unions to ensure that our rehabilitation program operates effectively and efficiently. 6. Ensuring that participation in a rehabilitation program will not disadvantage the injured worker. 7. Ensuring that a high standard of treatment and service is available to the injured worker. 8. The implementation of this policy will be in accordance with the adopted Procedures and Practices. Procedures and Practices: This Council has implemented the following procedures and practices to ensure that injured workers return to safe and productive employment as quickly as possible 1 . The Rehabilitation Co-Ordinator The designated Rehabilitation Co-ordinator is Name: Bob Hosie Title: Risk/lnsurance Co-ordinator FileNo: S11/13 Delegations Reference: Date Adopted :13 September 1994 Code Ref : Minute No : 195 Contact Division: Corporate & Procedures Manual Ref Community Services Section: Administration Address: Council Administration Office Breese Parade, FORSTER 2428 PO Box 450 FORSTER 2428 DX 7110 FORSTER Telephone: 0265 916 222 Role of the Rehabilitation Co-ordinator: - Examine all Workers Compensation Claims, medical certificates etc. - Maintain contact with injured worker/s and if necessary their families - Implement appropriate rehabilitation process in consultation with treating doctors and rehabilitation providers - Maintain contact with treating doctors - Maintain appropriate confidentiality - Organise involvement of Rehabilitation Provider - Refer injured worker for assessment - Assist/organise job-site visits - Arrange liaison between rehabilitation provider and treating doctor - Provide ongoing link between rehabilitation provider and injured worker - Communicate with Unions and work colleagues as required - Communicate with Insurers and keep them informed of ongoing and new rehabilitation cases - Oversee the progress of the rehabilitation programme - Prepare alternate duty list for consideration of treating doctor 2. The Rehabilitation Provider The involvement of health professionals in the rehabilitation process at an early stage of the injury plays a major part in assisting the injured worker. Their role is to support the treating doctor throughout all stages of the process. The services of an accredited Rehabilitation Provider will be obtained when: - the Rehabilitation Co-ordinator has consulted with the treating doctor - the nature of the injury will complicate the injured worker's return to work - there is a possibility that the injured worker may be absent from work for an extended period The following accredited rehabilitation providers are familiar with Council's operations and are available to assist in the rehabilitation of workers who are affected by a work place injury or illness. Name Address Telephone Commonwealth Rehabilitation PO Box 314 0265545366 Service FORSTER 2428 Commonwealth Rehabilitation PO Box 395 0249341988 Service MAITLAND 2323 The Rehabilitation Provider will: - provide assessment of the injured worker's physical capabilities and rehabilitation needs - assess the work place and requirements/physical demands of the job - liaise and work co-operatively with the treating doctor - develop an individual rehabilitation plan, in consultation with the injured worker, the treating doctor, the rehabilitation co-ordinator and relevant supervisors - provide and arrange any treatment required - regularly review progress of the rehabilitation process in close liaison with the Rehabilitation Co-ordinator - provide relevant written reports - maintain appropriate confidentiality - respond quickly to referrals - be familiar with the work place and work practices - ensure that the rehabilitation program is workplace based and emphasises an early return to work 3. Employee's Responsibility - to seek medical attention and to ensure that the necessary documentation is completed and submitted as required 4. Treating Doctors Local doctors will be contacted and advised of. - WorkCover and its changing emphasis - the commitment of Council and its employees to rehabilitation - the employers obligation under the new Workers Compensation Act in respect to rehabilitation - availability of alternate duties for injured workers who are unable to carry out their normal duties as a consequence of their injury or illness 5. Development of a Rehabilitation Plan The rehabilitation co-ordinator will work closely with the treating doctors and the rehabilitation providers to ensure that a rehabilitation plan for each injured worker is designed and managed properly. When offering alternate duties for the rehabilitation of an injured worker the following issues must be considered: - they must be carefully selected to suit the employee's capabilities - they should be normally regarded as temporary - they shall be approved by the treating doctor - they shall be useful for the injured worker's rehabilitation - they are to be productive for Council and not demeaning to the injured worker - appropriate training should be given if these duties are new to the employee - the duties should be specified in writing with all further monitoring or changes being documented - the injured worker and his respective supervisors must be aware of the limitation of these alternate duties, under no circumstances should the employee be required to undertake tasks not specified as suitable by the treating doctor - the workload impact on other workers is to be minimal - maintaining industrial harmony within the work place 6. Staff Information Staff will be regularly informed of their rights and responsibilities and of Council's policies on rehabilitation through the following mechanism - Notice Boards - Circulars - Lectures - Training sessions - Occupation Health & Safety Committees - Supervisor's meetings 7. Disputes The spirit of the Rehabilitation Program is one of workplace co-operation between all parties. Any dispute over Occupational Rehabilitation will be handled in the following manner: - the designated Rehabilitation Co-ordinator will be the channel for communication between the injured worker, the industrial union and management - should the dispute fail to be resolved at a local level then the Department of Industrial Relations and Employment will be contacted to provide advice and assistance 8. Completing Rehabilitation The rehabilitation may end when the employee - withdraws from the Program - can be returned full time to their previous duties as determined by their treating doctor and the Rehabilitation Provider 32 Mr Hosie sought the assistance of the Commonwealth Rehabilitation Service (CRS) to assist with Mr Banning's rehabilitation and requested that a functional assessment be undertaken to determine whether the medical restrictions currently in place could be modified to improve the possibility of providing suitable duties. 33 There is some dispute between the parties concerning communication to arrange the involvement of CRS, Mr Hosie asserting that he had difficulty in contacting Mr Banning who denies any attempt was made prior to late February/early March 2001. 34 Mr Banning wrote to Council on 8 March 2001 informing of his willingness to proceed with rehabilitation, explaining that restrictions would only be modified with approval of Dr Nicholson and Professor Ghabrial. Mr Banning expresses himself in this correspondence (att. 15 to MFI 6) in the following terms: I would be happy to attend CRS for an assessment of my capabilities to make sure what duties I can actually do safely with my disability which after having an MRI Scan has shown 3 ruptured disks and an annulus tear. My Orthopaedic Surgeon has stated that any further injury to these will result in an operation and then my working restrictions would be far greater than now. A possibility I'm not looking forward too as not only my work capabilities but also my home life will be very much affected. Prof Ghabrial (Orthopaedic Surgeon) has also stated that my condition will deteriorate over time anyway and that the operation is an eventuality I will have to consider in the future and any further injury caused by bending, stretching etc will only bring about the operation sooner than anticipated. As far as modifying my current restrictions that is completely up to Prof Ghabrial and my treating GP Dr. Nicholson who have imposed these restrictions based on my current capabilities and I will be following their advice strictly as I am the one who has to live with my condition and don't wish to ruin my health completely particularly at my age. I would be happy with any rehabilitation that would be suitable to my condition as long as I would not be doing duties that cause me further injury or that cause pain/discomfort to my current injury. 35 The functional assessment undertaken by CRS on 27 March 2001 concluded that Mr Banning was unable to return to truck driving and/or labouring tasks. The recommendations made by CRS are contained in a report issued on 30 March 2001 (att. 16 to MFI 6) in the following terms: 1. Mr Banning has the current physical capacity to undertake sedentary work. 2. It is recommended that consultation be conducted with Mr Banning's current employer in order to identify suitable duties or alternate redeployment positions that would comply with his specific physical work limitations identified above. 3. Prior to beginning a work trial or working, a worksite assessment by an Occupational Therapist is required in order to ensure that any proposed work duties complies with Mr Banning's work abilities outlined in the above tables. 4. It is recommended that Mr Banning be referred for adjustment to disability counselling and to a back care education program in order to assist him in his recovery and adjustment to disability. 5. It is recommended that Mr Banning be referred to a Rehabilitation Specialist in order to provide advice regarding further curative or rehabilitative intervention. 6. In the event that Mr Banning's current employer is unable to provide redeployment into sedentary work it is recommended that Mr Banning commence a vocational assessment in order to identify alternate vocational options. 36 On Thursday 29 March 2001 a discussion was held between Mr Hosie, Mr Banning and Mr Smart of CRS to discuss possible options. It is Mr Frappell's evidence that Mr Banning was informed at this meeting that there was a possibility that his employment could be terminated on the basis of the functional assessment however, to allow a more informal decision, a vocational assessment would be undertaken. Mr Frappell put that Mr Banning was offered disability counselling at this time. Mr Banning cooperated with this course. Council obtained approval from their workers' compensation insurer GIO and the vocational assessment was carried out by CRS on 6 April 2001, resulting in a report dated 9 April 2001 received by the Council on 12 April 2001, and a further "status report" on 20 April 2001. 37 The Vocational Assessment report of 9 April 2001 (att. 20A to MFI 6, also tendered separately as MFI 3) states inter alia: Mr Banning's work history demonstrates a strong work ethic and he impresses as keen to return to employment within his physical limitations. He has put considerable effort into trying to identify other employment he could do but at this point is devoid of ideas. This is not surprising in view of his current circumstances and the severity of his injury. … … The fact that Great Lakes Council have not been able to find a suitable position for redeployment in the three years since his initial injury illustrates the extent of his physical restrictions, his lack of formal qualifications and the serious difficulties he is likely to face seeking employment in the wider labour market in the local area. He is likely to need considerable assistance to work through the issues and identify appropriate options for future work. … … In general terms, Mr Banning is qualified for predominantly physical work. As a result of his injury he is now restricted to sedentary work for which he is not qualified. No work options to which he could immediately transfer could be identified in this assessment. … … It is therefore recommended that Mr Banning be offered up to 6 x 1.5 hour sessions of Vocational Counselling to explore work options in the local labour market, his own work personality and the range of training available in order to identify an appropriate vocational goal to enable him to obtain appropriate work. At some stage, resume preparation and assistance with job seeking and interview skills would also be of benefit. It is also recommended that 4 x 1 hour sessions of Adjustment to Disability Counselling be offered if this is needed. 38 The evidence of Mr Frappell is that attempts were made to find alternative duties for Mr Banning. In this regard Mr Frappell relies on correspondence from Mr Hosie to the Director of Engineering Services (annex. I to ex 5) which states: The abovenamed (Mr Banning) commenced employment with Council on 11 April 1989 and since that date has primarily been engaged on laboring and truck driving duties. During this time he has also relieved in positions involving the operation of Council's street sweeper, backhoe, excavator and grader. Generally he has been a very useful employee. … … It is quite clear that David will be unable to return to his pre-injury position or any work usually undertaken by Council's outdoor staff. In view of this knowledge it was decided to arrange a vocational assessment where hopefully a suitable vocation could be identified. The result of the vocational assessment did not identify any position which would be suitable for David to undertake. I have enclosed a copy of the functional and vocational assessment reports for your information. As the restrictions imposed are so limiting and as it is unlikely that a suitable full time position will be available for this employee within Council, it would appear that termination of his employment may be the only available option. While every effort must be made to identify any possible employment opportunities available it is necessary to keep David's health, safety and well being in mind at all times. 39 This correspondence included a draft memo to be sent to Directors/Managers seeking advice as to whether they could accommodate Mr Banning on a part time or full time basis. The memo (annex. J to ex 2) was sent by the Director of Engineering Services on 30 April 2001 to Director Corporate and Community Services, Director Planning and Environmental Services, Manager Transport Assets, Manager Projects and Construction, Manager Parks and Recreation, and Works Engineer in the following terms: The abovenamed employee sustained an injury to his lower back in a work related incident on 7 July 1997. Since that time he has had ongoing problems with his back and this has led to stringent medical restrictions being imposed by his treating doctor . As a result of these medical restrictions Council has been unable to provide him with suitable duties and he has been off work for some time. Recently Council arranged for CRS Australia (Taree) to undertake functional and vocational assessments on David Banning to determine his future capabilities. Unfortunately the outcome of his functional assessment resulted in further restrictions being imposed and this has made it even more difficult to identify suitable duties. Prior to making a further decision on David's future employment with Council, it is necessary to see what type of work is available for him throughout the organisation. Therefore it would be appreciated if you could provide me with written advice on whether you can utilise David Banning within your area giving full consideration to the following: 1. You will be required to fund David Banning from your budget whether employed full time as a permanent employee or part time on a short term project. 2. Limitations: • Reduced ability to lift from floor, carry or lift above head. • To avoid tasks that involve forward bending at the waist, twisting and bending. Unable to return to truck driving and/or manual labouring tasks . Able to perform sedentary work within his physical capacity. The vocational assessment undertaken by Mr Banning was unable to identify any specific positions that he would be suited to other than sedentary work, however it has been acknowledged that he has some difficulty with literacy and numeracy. It would be appreciated if you could provide me with advice on whether you are able to accommodate Mr Banning in your area of control. Thank you in anticipation of your early response. SUBMISSIONS 40 Mr Banning maintained his argument that the termination of his employment was unlawful, occurring less than six months after he became unfit for duty. Mr Banning put that prior to 8 February 2001 he had been off work for a total of 16½ days in various periods; and that only four months had elapsed since presentation of the certificate of 8 February 2001 and the termination of his employment. 41 Mr Banning put that he felt unfairly treated as Council had failed to consult with him prior to the termination of his employment and had failed to involve him in discussion of alternative positions within Council within his capability. Mr Banning put that other employees with a degree of medically related restriction continued in employment with Council, working in positions identified by the processes of consultation and rehabilitation. Mr Banning submitted that in his view no consideration had been afforded to the fact that he had been employed for 12 years with an exemplary employment record. 42 Mr Banning further submitted is that he was treated in a harsh and callous manner, putting that if the Council had placed more emphasis on application of their responsibility to continue him in employment he would not be dismissed. 43 Mr Banning seeks compensation, including consideration of the loss of 800 hours of accrued sick leave entitlement, extinguished on termination of his employment. 44 Mr Banning also seeks an order of costs pursuant to s 181 of the Act, asserting that the Council refused to consider a reasonable settlement of the matter. 45 Mr Banning particularised his claim for costs at the amount of $570.00 in out of pocket expenses, adding a submission that further costs of lost earning potential and emotional hardship should be assessed 46 Mr Potocki put that Mr Banning did not contest that he was unable to perform he pre-injury duties of team member/truck driver due to injury. Mr Potocki noted that Mr Banning seeks monetary compensation to the statutory limit of six months. 47 Mr Potocki put that the relevant dates are 7 July 1997, the occasion of the initial injury; 26 October 2000, the occasion of a further injury; and 8 June 2001, the date of termination of employment. 48 Mr Potocki's submission is that termination of employment took place over six months after the injury of 26 October 2000 and accordingly there is no breach of s 99 of the Act. 49 Mr Potocki conceded that time does not run from the date of injury. It is his submission that the terms of s 99 do not require the employee to be "off work" due to injury for the relevant six months, but that time runs from the date that the employee first became unfit for duty. 50 It is Mr Potocki's submission that if the legislation had intended that an employee be "off work" for the entire six months, it was open to plainly say that, which has not been done. 51 A further submission put by Mr Potocki in emphasis of his argument that time runs from when the employee first becomes unfit is that this expression contemplates the circumstance that an employee may be unfit, recover and become unfit a second time, otherwise the use of the term "first" is redundant and would not have been used. 52 In further support of his submission that there has been no breach of s 99, Mr Potocki referred to use of the words "period that has elapsed", which he put is properly construed as the continuous passage of time, not aggregation of discrete segments of time not disrupted by other events such as a short term fitness for duty as expressed here. 53 Mr Potocki's primary submission is that the termination of Mr Banning's employment was not harsh, unreasonable or unjust as it arose from Mr Banning's physical inability to perform any of the work available after Council had gone to some length to rehabilitate and re-deploy Mr Banning. 54 Mr Potocki relied upon the advise of Professor Ghabrial that Mr Banning has a permanent incapacity and would appear never to be able to contemplate a return to pre-injury duties. 55 Mr Potocki addressed each of the specific claims made by Mr Banning: Monetary Compensation 56 In addressing the claim for monetary compensation, Mr Potocki put that Mr Banning continues to receive payment pursuant to the Worker's Compensation Act equivalent to his normal weekly rate of pay. It is Mr Potocki's submission that the payments are the same amount he would be paid had he continued to be employed by Council. 57 Mr Potocki referred to a decision of Mr Commissioner Sheils in Peterkin v Fine Design Furniture (IRC 51 of 1994, 11/5/94, unreported) in which the Commissioner, having found termination of employment to be harsh, unjust and unreasonable, concluded that compensation should be minimal on the grounds that the applicant continued to receive weekly payment pursuant to the Workers Compensation Act. Compensation of $1200 was awarded. Costs 58 Mr Potocki submitted that no order for costs be made, noting that an offer of six week's pay was rejected by Mr Banning. Accruals - Annual Leave, Long Service Leave and Sick Leave 59 It is Mr Potocki's submission that the award of rights in respect to these issues are only available on reinstatement or re-employment. Mr Potocki submits that orders of reinstatement or re-employment are not available due to the restrictions placed upon Mr Banning by the treating medical practitioners. 60 In addressing the issue of sick leave Mr Potocki put that payout of accrued sick leave is specifically prohibited by Clause 35 of the Local Government (State) Award 2001 ('the award') 330 IG 744, which states: 35 (vi) … (a) In the event of the termination of service of an employee on account of ill-health and the council is satisfied that such ill-health renders the employee unable in the future to perform the duties of such appointed classification, the termination shall not be effected earlier than the date on which the employee's credit of leave at full pay shall be exhausted unless the employee is paid any accrued sick leave at full pay to which such employee would be entitled under this clause. … … (c) Payment under this clause is limited to sick leave calculated to retirement age in accordance with relevant legislation and shall not be payable if the injury or illness arises out of or in the course of employment such that it is compensable under the Workers Compensation Act, 1987. CONSIDERATION 61 Neither party could refer to any decided matter going to the question of application of s 99 of the Act to determine the relevant six month period. S 99 states: SECTION 99 DISMISSAL WITHIN 6 MONTHS OF INJURY AN OFFENCE 99(1) [Offence] An employer of an injured employee who dismisses the employee is guilty of an offence if: (a) the employee is dismissed because the employee is not fit for employment as a result of the injury, and (b) the employee is dismissed during the relevant period after the employee first became unfit for employment. 99(1A) [Definition of "relevant period"] For the purposes of subsection (1), the relevant period is: (a) the period of 6 months after the employee first became unfit for employment, except as provided by paragraph (b), or (b) if the employee is entitled under a Commonwealth or State industrial instrument to accident pay as a result of the injury for a period exceeding that period of 6 months - the period during which the employee is entitled to accident pay. Accident pay is an entitlement of the employee to payment by the employer, while the employee is unfit for employment, that is described as accident pay in the relevant industrial instrument. 62 It is appropriate to refer to the second reading speech of the Attorney General of New South Wales, the Hon. J Shaw, as he then was, to the New South Wales Parliament on 23 November 1994, wherein he referred to Ch 2 Pt 7 of the Act in the following terms: Part 7-Protection of Injured Employees Chapter 2 part 7 carries forward the provisions of the 1991 Act which are designed to provide certain employment-security rights for persons who have suffered a work-related injury. The existing provisions have been the subject of some judicial criticism and the bill has been redrafted to state more clearly the powers of the commission in this area and to make some appropriate changes to assist injured workers. The bill now allows the commission the discretion to order back payments. This is an appropriate discretionary measure: dismissed injured workers, no less than unfair dismissal applicants, should not be disadvantaged financially and should be encouraged to return to work. There is no ability to order compensation in lieu of reinstatement: the policy objective is the reinstatement of injured workers. The bill adopts a more flexible approach to the kind of employment to which an employee can be reinstated. This will facilitate the laudable aim of the return to work of injured employees-but will be balanced against employer interests as it must be employment which is available and for which the employee is fit. It is not intended that orders would be made for employment that is merely of a token nature and does not involve useful work having regard to the employer's operations; or employment that is demeaning in nature, having regard to the nature of the worker's incapacity, education, skills and work experience. It is intended that the meaning of "available" reflect the approach taken by the commission in Commonwealth Steel Company Limited v Ward: unreported - matter no IRC 3144 of 1993. 63 The approach taken in Commonwealth Steel v Ward is discussed in Effem Foods Pty Ltd v Urban [1998] 81 IR 341 at pp 343, 344: A full bench of the Industrial Relations Commission of New South Wales under the Industrial Relations Act 1991 (NSW) (Hill and Hungerford JJ, Sheils C), in Commonwealth Steel Company Ltd v Ward (unreported, NSW Industrial Relations Commission, IRC 3144 of 1993, 16 December 1994 ), considered similar provisions of the 1991 Act. Although that case concerned the reinstatement of an employee to his former position observations were made by way of obiter dicta as to the effect of s 250(2)(a) of the 1991 Act which enabled, if certain conditions were met, an order to be made requiring an employer: 'to re-employ the applicant, on terms and conditions determined by the Commission, in another position that the employer has available and that, in the Commission's opinion, is suitable;" The Commission said: "In the light of the conclusions to which we subsequently come, it is unnecessary to express any final opinion on that matter but we incline strongly to the view that the word, 'available' where used in the section is not synonymous with the word 'vacant'. In our opinion, such a construction would give the provisions, of s 250(2)(a) very little room for operation and could well render it nugatory in practice." As s 250(2)(a) of the 1991 Act was virtually identical to s 89(2) of the 1996 Act it was appropriate for the Commissioner to accept the opinion in Commonwealth Steel as being apt in this case. Commonwealth Steel, however, is not authority for the proposition that an order for re-employment, either under s 250(2)(a) of the 1991 Act or s 89(2) of the 1996 Act, may require the employer to create a position tailored to an applicant's abilities. 64 The issue of relevant position is also considered in State Rail Authority of New South Wales v Tyrell [1993] 51 IR 14 in which the Full Bench of the Industrial Court of New South Wales, as it then was, found that the relevant position is the one in which work was last performed, concluding that if this were a light duties position then it was in fact a position which an applicant can be reinstated to. 65 Silaphet and Others v South Western Area Health Service [1998] 80 IR 365 is authority for the proposition that there is no policy in the Act for provision of light duties on a permanent basis. There is, however, an obligation to make a genuine attempt at rehabilitation. 66 The primary obligation to rehabilitation arises from s 152(1) of the Workers Compensation Act which states: Workers Compensation Act 1987 (NSW) Section 152(1) of the Workers Compensation Act provides: "An employer shall, in accordance with the regulations, establish a workplace rehabilitation program with respect to policies and procedures for the rehabilitation (and, if necessary, vocational re-education) of any injured workers of the employer." Such a workplace rehabilitation program is required to comply with any guidelines determined by WorkCover Authority (s 152(2)(a)). The workplace rehabilitation program established by the respondent defines "occupational rehabilitation" as follows: "THE RESTORATION OF INJURED EMPLOYEES FROM OCCUPATIONAL ILL HEALTH TO THE FULLEST PHYSICAL, MENTAL, SOCIAL, VOCATIONAL AND ECONOMIC USEFULNESS OF WHICH THEY ARE CAPABLE. IT IS A PROCESS WHICH BEGINS AT THE MOMENT OF INJURY OR ILL-14EALTH AND CONTINUES UNTIL THE EMPLOYEE IS AS FULLY RESTORED AS POSSIBLE." 67 It is upon this obligation that Council's rehabilitation policy is founded. In consideration of the professional evidence in Silaphet, Maidment J observed at p 376: In areas of human endeavour such as the assessment of injured workers, perfection cannot be expected and differing degrees of skill and expertise must exist as between practitioners be they medically qualified or otherwise. Views as to the prospect of success in any given case are likely to differ. In the present cases honest and professional attempts have been made to rehabilitate the employees, those attempts have proved unsuccessful. This Commission cannot undo that, nor can it, in these proceedings, devise some alternate rehabilitation procedures and require that they be adopted. if for no other reason that it does not have the necessary expertise. 68 In consideration of the workplace rehabilitation program the relevant considerations are found at p 377 of Silaphet in the following terms: In each case failures to comply with the workplace rehabilitation program have occurred. Such failures do not necessarily attract reinstatement, particularly if such is not practicable. Additionally, such failures may not have been shown to have materially affected the rehabilitation process. These are reinstatement and not punitive proceedings, nor are they proceedings in negligence in which damages are sought. I am of course conscious of the powers of the Commission to award compensation in cases of unfair dismissal. I have no power to compensate employees on account of a breach as such by an employer of its rehabilitation policy, I am confined to remedies for unfair dismissal and to that permitted by Pt 7. I should add that it is suggested that the employees would have progressed towards rehabilitation had the dismissals not taken place. Be that as it may I must take their present medical conditions and the present probabilities as being the basis upon which any reinstatement orders are made. 69 His Honour proceeded to examine the merits of each of the applicants in their own particular circumstances, directing employment and further rehabilitation in respect to two of the three applicants and dismissing the application in regard to the other. 70 This is consistent with a range of cases going to the issue of injured workers where, on merit of particular circumstances, reinstatement or compensation is ordered. See: Murphy v Council of City of Sydney [1992] 45 IR 339; Big W Discount Stores v Donato [1995] 58 IR 239; Foley v Qantas Airways Limited [1996] 70 IR 263; Mitchell v Macquarie Health Service [1995] 67 IR 107; Patterson and Another v Newcrest Mining Ltd [1996] 67 IR 101; and Moses v IGA Distribution Pty Ltd (IRC2001/1550, Cambridge C, 20/8/01, unreported). When first unfit for employment? 71 The first question to arise in this matter is when did Mr Banning first become unfit for employment. The contention by the Council that this occurred on or before 26 October 2000 ignores the period in December 2000, albeit a brief period during which Mr Banning returned to pre-injury duties. 72 The clear and unambiguous objective of this part of the legislation is to provide a security of employment to persons who have suffered a work related injury and to continue injured workers in employment so far as practicable. It is beneficial legislation and is to be approached on that basis. 73 The occurrence of an injury, or aggravation thereof, and subsequent imposition of medical restrictions does not of itself determine that a person is unfit for employment. 74 I do not accept the analysis of the legislation advanced by Mr Potocki on behalf of Council. Consideration of the qualification that an employee be "unfit for employment" leaves no other conclusion than fitness for employment is dependant upon the available employment. 75 When considered in light of the Second Reading Speech and determination in Commonwealth Steel, employment is work in a position of the type that an employee can usefully perform that the employer requires to be done and is not necessarily limited to pre-injury duties. 76 At the least, Council did not consider Mr Banning unfit for employment until he presented the medical certificate of 8 February 2001 and did not initiate action under the rehabilitation policy until some time thereafter. 77 Consequently, I form the view that Mr Banning first became unfit for employment from 8 February 2001 78 I conclude that the termination of Mr Banning's employment on 8 June 2001 is in breach of s 99 of the Act and accordingly unlawful, rendering the dismissal harsh, unreasonable and unjust. Rehabilitation 79 The evidence is that Mr Banning was referred to rehabilitation to "see if the medical restrictions could be modified or lifted". This is not the function of a rehabilitation assessment or program. The restrictions imposed on medical grounds are those determined by a duly qualified medical practitioner, in this case the treating General Practitioner and an Orthopaedic Surgeon. Any modification or lifting of the restrictions would be the function of a review by the treating doctors, which they could appropriately consider should there be a change in the patient's condition. 80 There is no evidence of any communication or consultation with the treating medical practitioners as required by the Council's rehabilitation policy. 81 The conclusion advanced by Mr Potocki that Mr Banning would never be fit for employment is not open on the evidence. The rehabilitation policy has not been followed and no conclusive view has been obtained from the medical practitioners involved. Mr Banning's emphatic view that he will follow the advice of his treat medical practitioners and will not participate in an alteration of restrictions without their approval is an entirely proper position to adopt. Both Dr Nicholson and Professor Ghabrial indicated that they would review Mr Banning in May 2001. There is no evidence of this review or prognosis therefrom. 82 The rehabilitation report discloses no rehabilitation at all; it is no more than a restatement of restrictions and a recommendation for vocational assessment. 83 The vocational assessment commences on the premise that physical work is beyond the capacity of Mr Banning and continues to express a view as to limited clerical and numeracy skills. There is no suggestion of remedy to this deficiency. I must observe at this point that there is no apparent lack of ability demonstrated by Mr Banning in the conduct of these proceedings on his own behalf. 84 I cannot form the view expressed by Maidment J in Silaphet that there has been a proper attempt at rehabilitation of Mr Banning. Redeployment 85 The correspondence set out earlier in this decision seeking alternative employment for Mr Banning within Council can only be categorised as dismissive and discouraging of a genuine effort to determine available alternatives. 86 An examination of this correspondence supports the assertion by Mr Banning that he was treated in a harsh and callous manner, too readily consigned to the workers compensation system, rather than rehabilitated and continued in employment. Remedy 87 Mr Banning seeks an award of monetary compensation. 88 Compensation pursuant to s 89(5) of the Act is only available subsequent to a positive finding by the Commission that reinstatement pursuant to s 89(1) or re-employment pursuant to s 89(2) are not practicable. 89 I cannot form the view that reinstatement is impractical. Further, I am of the view that compensation is not an appropriate or adequate remedy in the present circumstances. 90 As properly argued by Mr Potocki the limit of the Commission's jurisdiction in the circumstances of this case would result in a small if not negligible payment. 91 Mr Banning has been denied his statutory right to continuity of employment for a period of at least six months from the time he first became unfit for employment, which I conclude in this case is not adequately repaired by compensation. 92 Further, Mr Banning has not had the opportunity of a genuine consideration of rehabilitation and redeployment in accordance with Council's policy developed to comply with the statutory obligation imposed by the Workers Compensation Act. 93 I am further moved to reinstatement as the appropriate remedy in this case, having regard to Mr Banning's clear desire to continue in employment, his willingness to work, and his exemplary employment record of over 12 years with the Council which should not be lightly dismissed. 94 I order reinstatement of Mr Banning from the date of termination of employment with restoration of wages lost and continuity of service for all purposes including accrual of entitlements. Costs 95 On the evidence in this matter I form the view that Council has unreasonably failed to agree to a settlement of the matter and award costs of $570.00 (five hundred and seventy dollars) as claimed by Mr Banning. It is not within the Commission's jurisdiction to go beyond the actual expenditure incurred by a party in the conduct of proceedings. 96 Orders issue herewith. oo0oo INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Monday, 18 March 2002 Matter No IRC 3593 of 2001 DAVID WILLIAM BANNING & GREAT LAKES COUNCIL Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ORDERS 1. Pursuant to s 89(1) of the Industrial Relations Act 1996 Great Lakes Council is order to reinstate David William Banning to his former position. 2. Pursuant to s 89(3) of the Industrial Relations Act 1996 Great Lakes Council is ordered to pay to David William Banning the remuneration he would have received but for being dismissed, from the date of termination of employment to reinstatement, less any amounts paid as workers compensation payments. 3. Pursuant to s 89(4) of the Industrial Relations Act 1996 I order that the period of employment of David William Banning with Great Lakes Council is taken to have bot been broken by the dismissal from employment subject to these orders. 4. Pursuant to s 181(2)(c) of the Industrial Relations Act 1996 Great Lakes Council is ordered to pay costs of $570.00 (five hundred and seventy dollars) to David William Banning within 21 days of this order. 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.