Industrial Relations Commission of New South Wales CITATION : DYET & LAKE MACQURIE CITY COUNCIL [2000] NSWIRComm 140 revised - 02/08/2000 PARTIES : Federated Municipal and shire Council Employees' Union of Australia, NSW Division Lake Macquarie City Council FILE NUMBER: IRC 345 of 2000 CORAM: Harrison DP Reinstatement of injured employee - jurisdiction - estoppel - medical referee - exercise of discretion - refusal to refer - nature of employment at time of termination distinct from rate of pay CATCHWORDS : Jurisdiction held - application sought no higher rate of pay Application refused on merit - lack of medical evidence of fitness for actual work - Held - application estopped by conduct - pursuit of own termination Annual Holidays Act 1944 LEGISLATION CITED : Industrial Relations Act 1996 Occupational Health and Safety Act 1983 Payne v Howison (FIRC CICS 26/9/97 unreported) Waltons Stores (Interstate) Ltd v Maher 164 CLR387 CASES CITED : Cwth of Australia v Verwayen 170 CLR 394 Stone Microsystems (Aust) P/L and anor v Kwong and anor 85 IR 237 Horsman v Cmnr of Main Roads 89 IR 343 HEARING DATES: 06/28/2000 DATE OF JUDGMENT: 08/04/2000 Mr Noel Martin Federated Municipal and Shire Council Employees' Union of Australia, NSW Division LEGAL REPRESENTATIVES: Mr J Pearce of Counsel with Mr P Collins Lake Macquarie City Council JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 4 August 2000 Matter No IRC 345 of 2000 OWEN DYET & LAKE MACQUARIE CITY COUNCIL Application by Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division for reinstatement of injured employee pursuant to section 93 of the Industrial Relations Act 1996. DECISION 1 The application in this matter was filed pursuant to s.93 of the Industrial Relations Act 1996 ('the Act') by the Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division ('the Union') on 31 June 2000 on behalf of Mr Owen Dyet, a former employee of Lake Macquarie City Council ('the Council'). 2 The application states that Mr Dyet's employment was terminated on 3 July 1998 and that a medical certificate dated 25 October 1999 stating that the applicant was fit to return to pre-injury duties was given to the Council on 2 November 1999 but that the Council refused re-employment. 3 The matter was first subject to listing for the purpose of Directions and Conciliation on 10 February 2000. These proceedings were deferred to 9 March 2000 at the request of the Union and agreement of the Council. 4 The proceedings on 9 March 2000 established that the matter was not capable of resolution by agreement and that the Union pressed the matter to arbitration. 5 The Council asserted that the application was beyond jurisdiction in that the remedy sought was not available as the application was inconsistent with the requirements of s.93 of the Act. 6 Directions were issued that the Council file and serve an outline of their case, particularising the grounds and reasons upon which they contested jurisdiction; together with a schedule of witnesses and witness statements by 14 April 2000. The Union was directed to file and serve in response by 28 April 2000 in preparation for arbitration proceedings to determine the threshold matters, listed for 2 May 2000. 7 On 2 May 2000 Mr Collins, appearing on behalf of the Council, relied upon the outline of case filed in accordance with earlier directions, which asserted that Mr Dyet gave up any right to reinstatement or re-employment pursuant to the Act as part of a settlement of action taken by him in the Worker's Compensation jurisdiction; and that the application in this matter was misdirected to the form of employment. Both propositions were strenuously challenged by Mr Martin, appearing on behalf of the Union. 8 There was no argument from either party that Mr Dyet failed to meet the definition of injured worker found in s.91 of the Act. Mr Collins put that the Union seeks reinstatement of Mr Dyet to the position of Leading Hand/Gardener which, in his argument, was not the position from which Mr Dyet was terminated due to injury. Mr Martin submitted that remedy is at the discretion of the Commission subject to merit, limited only by the requirements of s.92(2) that the kind of employment not be more advantageous than that in which the employee was engaged when he or she first became unfit for employment because of injury. 9 I found on that occasion that the issues presented by the parties went to merit and that a case denying jurisdiction had not been made out. The matter was then listed for arbitration proceedings on 28 June 2000. 10 In the proceedings to merit Mr Martin, continuing his appearance on behalf of the Union, brought evidence from Mr Dyet. 11 Mr Pearce of Counsel appeared on behalf of the Council with Mr Collins. Mr Pearce relied upon an affidavit of evidence deposed by Mr Douglas Fahey (exhibit 7), employed by the Council as Human Resources Systems Co-ordinator, admitted without requirement for cross-examination; and the oral evidence of Mr Peter Collins, supported by an affidavit sworn by him (exhibit 13). Mr Collins is employed by the Council in the position of Employee Relations Officer. 12 The affidavit of evidence of Mr Dyet (exhibit 1) deposes that he was employed by the Council from 1984 and held various positions, including plant operator, leading hand Parks and Gardens, general labourer and construction labourer. 13 Mr Dyet deposed that he has applied to Council for reinstatement on the basis that an injury to his arms has improved to the extent that he is now able to carry out normal duties and has provided a report from his treating specialist, Dr Laird, to that effect. Mr Dyet deposed that he is prepared to return to any position available that consists of any of those functions consistent with any of the former positions held by himself; and that he understood there to be three vacant positions available with Council that he believed he could carry out. 14 Mr Dyet is currently employed on a casual basis with two bowling clubs as a greenkeeper's assistant. 15 The Union first sought reinstatement of Mr Dyet pursuant to Part 7 of the Act on 31 August 1999. Exhibit 15 in these proceedings is correspondence from the Union to the Council advising that Mr Dyet sought his statutory right to reinstatement within two years of termination of employment due to injury. Exhibit 10 includes a Worker's Compensation medical certificate issued by Dr Ian Boyd, dated 24 August 1999, certifying that Mr Dyet was fit to resume pre-injury duties. This certificate specifies the occupation as leading hand/gardener. 16 The evidence of Mr Dyet is that in November 1992 he underwent an operation on his left elbow, described as an "ulna nerve transposition", which involved a period of three months off work. On 18 August 1993 Mr Dyet had a further operation occasioning a six week period off work. Mr Dyet had no other time off work in relation to his left or right elbow. 17 In cross examination Mr Dyet conceded that he was fit to perform his work, being that of a leading hand/gardener until June 1995 and thereafter that of a labourer until July 1996. The evidence of Mr Dyet is that despite some discomfort in his arms, he was able to perform the work of a leading hand/gardener, which he put he enjoyed. 18 Mr Dyet was transferred to the work of construction labourer as a result of his representation to Mr Fahey in mid 1995. It is Mr Dyet's evidence that he sought the transfer away from the leading hand Parks and Gardens position on medical advice arising from deterioration and risk to his health, unspecified as a consequence of the difficulty he experienced in the supervision of particular staff under his control at the time, which presented issues for which he had no training. Mr Dyet deposed that he sought assistance from the Council in dealing with the situation, which he put he did not receive and subsequently sought a transfer. 19 Mr Dyet described the work he undertook as a construction labourer as building concrete sumps, which he had specifically requested as it attracted a higher rate of pay; cleaning shutters; kerb and drainage construction. 20 The evidence of Mr Dyet is that around July 1996 he lost strength in his left arm to the extent that he could not pick up a pen, occasioning his absence from work. 21 Mr Dyet confirmed that he gave instructions to his solicitor to make an application pursuant to the Workers Compensation Act, which was so made in 1997. The claim lodged in the Compensation Court of New South Wales on 5 April 1994 (exhibit 8 in these proceedings) states: 5. (d)Cause of injury: (d) The applicant whilst in the course of his employment with the respondent has performed work which has placed strain and exertion upon his left and right arms, shoulders and neck 6. Nature of injury. Due to the nature and conditions of the applicants employment described above he has suffered injury to the right and left arms, shoulders and neck" 22 The claim sought compensation for a 15 percent loss of efficient use of the left arm and five percent loss of efficient use of the right arms. 23 A report from Dr Lindsay Laird, dated 13 October 1997 and directed to White Barnes Solicitors then acting on behalf of Mr Dyet (exhibit 9 in these proceedings), recounts examination of Mr Dyet and employment details available to Dr Laird, and concludes in the following terms: "This gentleman continues to have an ongoing disability with both upper limbs. I have previously assessed the loss of efficient use of his left upper limb at or above his elbow including the elbow joint as some 15%. I have previously assessed the percentage loss of efficient use of his right upper limb at or above his elbow as 10%. These percentages stand as previously assessed." 24 A report was also obtained from Dr F J Harvey on 16 February 1998, directed to Palmieri Solicitors, then acting on behalf of the Council (exhibit 10 in these proceedings) which, subsequent to specifying the detail of examination and clinical opinion, provides a prognosis in the following terms: "PROGNOSIS The patient apparently has been having symptoms in the arms for over ten years and it would seem likely therefore that these symptoms will persist.: 25 Exhibit 11 in these proceedings is a report from Dr R L Plowman, Orthopaedic Medico-Legal Consultant, of 9 March 1998 directed to White Barnes Solicitors. Dr Plowman's report concludes with the following opinion: OPINION 1. Diagnosis - Bilateral ulnar neuritis, (cubital tunnel syndrome) This was caused and is attributable to the nature and condition of his employment as a ganger in the parks and gardens department. It accounts for the pain and aching in the elbows and the tingling and numbness and cramps in his hands which occurred during this employment. This condition was confirmed by nerve conduction studies. Treatment involved ulnar nerve transposition of the left elbow in November, 1992 which left it markedly sensitive and for which he had re-operation in August, 1993, with only limited improvement. He has declined operative treatment on his right elbow, and there has been no other treatment for either of his elbows. He continues to complain of recurrent pain and aching in the elbows, of recurrent tingling and of cramps in the fingers of both hands. The left hand is the more affected. It affects and limits various of his activities which he describes above. A more recent nerve conduction study suggests that there is still some slight impairment in each of the ulnar nerves. 3. Fitness - With these disabilities he has and would continue to have difficulty with his pre-injury employment in the parks and gardens department and with heavy physical and manual work, viz., construction department. These disabilities affect him with heavy physical and manual work, with work where there is repetitive vibration or jarring to his arms or which requires prolonged use or strain on them. He is fit for other work, including his present employment operating a street sweeping machine. 4. Prognosis - Present disabilities will continue, but are unlikely to deteriorate or require further treatment. 26 Whilst describing the symptoms and effects which led to the termination of employment on medical grounds, Mr Dyet conceded that he continues to suffer some discomfort. This evidence is found at page 41 of transcript in the following terms: Q: You said that your hands could cramp up and be painful when you were driving a motor vehicle on the street? A: I'd get a cramp. I wouldn't say they'd freeze if I was having a heart attack. Q: You complained of cracking in the right elbow on movement. A: It's amazing you haven't heard it today. Q: So you still have that? A: Yes its irrelevant. It's my problem. Q: It might be the Council's problem too. A: Yes" and at page 59: Q: So do you say now that you don't get intermittent pain in both elbows any more? A: I get a bit of a twinge every now and then, but that's my pain, it's just something that I have to learn to put up with." and at pages 60 and 61: Q: Now - and you're not concerned that once you come back to the Council you might start to get problems again in your elbows? A: No. Q: Why is that? A: Well, because if there was any pain there, that would be my pain and I'd, have to put up with it, and I shouldn't have to burden anyone with it. I've already signed them papers. Q: I see. But don't you understand that if you come back to the Council and you get the pain again, you might have new rights under the Compensation Act? A: No, that's my acts, I'd have to pay for that myself. Q: I see. Are you sure of that? A: Yes. Q: And you're sure that you won't get pains in your elbows --- A: I can't say that. Q: Well, are you sure that it won't get so bad that you won't have to go off work again, if you come back to the Council? A: I'd like to think so, yes. Q: Well, are you sure is the question? A: Yes I'm sure. Q: And you won't get tingling in your hands? A: I can't say that? Q: Well are you sure that it won't get so bad that you might have to go off with the Council? A: Everyone gets cramps every now and then and has a tingle in their hands if their hand falls asleep. Q: Are you sure that it won't get so bad - - - A: I'm sure it won't affect my work, yes. Q: You say that all of these problems that you had throughout 1998, have all gone away now have they? A: No. I say I've still got that problem there, and I will always have that problem there, because I've had two operations on that. What I'm stating is that I can go back to normal duties. Q: But you don't really know do you? A: Sorry? Q: You don't really know that you can go back to normal duties do you? A: Wrong. I just gave you a piece of paper stating what I've been working at and doing just as hard a work, or harder than some of the jobs on the Council, and you're stating that I can't do it. Q: What I'm asking you, if you really know that you can go back to work? A: Yes, yes. Q: And not become unfit again for work? A: I'd like to think not. 27 Mr Dyet also gave evidence of his involvement in a rehabilitation programme which involved some clerical and administrative work in the car pool, which he found intolerable. 28 The medical certificate provided by Dr Laird (Exhibit 2), issued on 25 October 1999, states that Mr Dyet is fit for pre-injury duties from 26 October 1999 and that an arrangement for suitable duties is not necessary. The medical certificate does not specify the pre-injury duties or put any restriction on the tasks that Mr Dyet could undertake. 29 At page 28 of transcript Mr Martin concedes that Mr Dyet was employed as a labourer at the time his employment was terminated. 30 The evidence of Mr Fahey, admitted without objection, recounts a request by Mr Dyet to be moved from the position of leading hand in the Parks and Gardens Section on the basis that he could no longer work with the other members of the crew. The evidence of Mr Fahey is that he accepted this request and facilitated Mr Dyet's move to a labourer's position in the Engineering Division which took place on 12 October 1995. The evidence of Mr Fahey is that, whilst the labouring position attracted a lower rate of pay, Mr Dyet retained his Leading Hand rate of pay. Mr Fahey's evidence is that the position of leading hand, Parks and Gardens Section, was subsequently advertised and filled and that Mr Dyet showed no interest in returning to that position. 31 The evidence of Mr Collins is that the termination of Mr Dyet's employment as a result of injuries incurred by him was instigated by an express request from Mr Dyet following a history of attempted rehabilitation into the workplace, which proved unsuccessful for a variety of reasons. Mr Collins deposed that subsequent to Mr Dyet's request for his employment to be terminated on medical grounds, Mr Dyet submitted two medical certificates, one from Dr M Ferguson, a medical practitioner retained by the Council; and one from Dr I Boyd, Mr Dyet's general practitioner, to the effect that he was unable to return to the level of pre-injury employment. Both of these certificates were dated 27 May 1998 and were put in evidence by Mr Pearce together as exhibit 6. 32 The certificate issued by Dr Boyd addressed to the Council states: "Re Owen Dyet Owen has chronic bilateral elbow and forearm pain. On that basis I do not believe that he will return to his pre-injury level of duties. " 33 The advice from Dr Ferguson, handwritten on Council letterhead, states: "Re: Mr Owen Dyet On the basis of ongoing bilateral forearm pain I do not believe the above will be able to return to his pre-injury level of employment." 34 Mr Dyet conceded that at the time he made the request to Mr Collins to be terminated from his employment he was aware that this would assist settlement of his worker's compensation claim, then pending. 35 Mr Dyet further conceded that he held the view that the Council would not agree to settle the worker's compensation claim by commutation if he remained an employee. This evidence is found at page 46 of transcript: Q: And you knew that the Council would not have agreed to a commutation if you had still been an employee, would they? A: That's right. 36 Mr Dyet further conceded that he was made aware of a right to seek reinstatement pursuant to s.93 of the Act by an official of the Union around the time of the termination of his employment and redemption of the worker's compensation claim. SUBMISSIONS 37 Mr Martin submitted that the circumstances of this matter are simple and straight forward. Mr Martin put that Mr Dyet is an injured worker as defined in s.91 of the Act and had met the requirement of s.92(3) of the Act and accordingly was entitled to an order of reinstatement pursuant to s.94 of the Act. 38 Mr Martin put that in the event of doubt as to Mr Dyet's fitness, s.96 empowers the Commission to refer this question to a medical referee or a medical panel. 39 Mr Martin put that these straightforward circumstances had been clouded by actions pursuant to the Workers Compensation Act. 40 Mr Martin submitted that Mr Dyet's recovery is due to his active pursuit of rehabilitation, resulting in him being currently engaged in various casual employment of an outdoor, physical nature consistent with those duties he performed whilst employed by the Council. 41 Mr Martin submitted that Mr Dyet was medically fit to undertake the duties of a cleaner in the Council's Works Department, which is a position meeting the statutory requirement of s.92(2) of being no more advantageous than that in which he was engaged at the time of the termination of his employment, and within the power of the Commission as prescribed by s.94 of the Act. 42 Mr Pearce opposed that application on the grounds of jurisdiction, estoppel and merit. Jurisdiction 43 Mr Pearce put that the application (exhibit 15) seeks reinstatement to the position of leading hand/gardener, which he contends is precluded by s.92(2) of the Act as it is to a position more advantageous than that in which Mr Dyet was engaged when he first became unfit for employment due to injury. Mr Pearce put that there is consequently no failure by the employer to reinstate as contemplated by s.93 of the Act. Mr Pearce submitted that without the failure by the employer to reinstate, there is no foundation to an application and accordingly no jurisdiction. 44 Mr Pearce put that the certificate issued by Dr Laird does not specify the pre-injury duties and thus cannot be said to provide medical evidence that the applicant is fit to resume employment. 45 Mr Pearce submitted that the medical certificate issued by Dr Boyd specifies that Mr Dyet is fit to resume the duties of a leading hand/gardener which was not the form of employment undertaken at the time of injury; nor is this form of employment available. 46 Mr Pearce submitted that this Commission could not be satisfied that the applicant is fit to resume employment as the applicant has been found to have a permanent partial disability which, if aggravated, would initiate further worker's compensation liability. 47 Mr Pearce submitted that the Council held a concern that to reinstate Mr Dyet to the work of a general labourer would be inconsistent with the requirements of the Occupational Health and Safety Act ('OH&S Act') to provide a safe workplace; and at odds with s.47 of the Worker's Compensation Act which 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." Estoppel 48 Mr Pearce argued that Mr Dyet is estopped by conduct from an application for reinstatement. Mr Pearce referred to a judgement of a Full Bench of the Industrial Relations Commission of New South Wales in Court Session in Payne v Howison (Cahill V-P, Hill, Marks JJ) of 26 September 1997 (unreported). The matter of Payne v Howison came before the Full Bench on appeal from the Chief Industrial Magistrate (CIM). 49 The Full Bench examined the issue of estoppel at pp 22 - 25 of the judgement in the following terms: The evolution of the doctrine of estoppel and the principles which underlie the doctrine were discussed extensively in recent decisions of the High Court of Australia. We refer in particular to Waltons Stores (Interstate) Ltd v Maher (1987-1988) 164 CLR 387 and the Commonwealth of Australia v Verwayen (1990) 170 CLR 394. It is not necessary for the purpose of these proceedings to discuss the doctrine in detail. In Walton's, Brennan J, as he then was, set out (at 428/9) the essentials of the doctrine of equitable estoppel; two years later in Verwayen Deane J identified in the following principles what his Honour saw as "the conceptual foundation and essential operation of the doctrine of estoppel by conduct" using words taken from judgments in earlier cases: 1. While the ordinary operation of estoppel by conduct is between parties to litigation, it is a doctrine of substantive law the factual ingredients of which fall to be pleaded and resolved like other factual issues in a case. The persons who may be bound by or who may take the benefit of such an estoppel extend beyond the immediate parties to it, to their privies, whether by blood, by estate or by contract. That being so, an estoppel by conduct can be the origin of primary rights of property and of contract. 2. The central principle of the doctrine is that the law will not permit an unconscionable - or, more accurately, unconscientious - departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party's detriment if the assumption be not adhered to for the purposes of the litigation. 3. Since an estoppel will not arise unless the party claiming the benefit of it has adopted the assumption as the basis of action or inaction and thereby placed himself in a position of significant disadvantage if departure from the assumption be permitted, the resolution of an issue of estoppel by conduct will involve an examination of the relevant belief, actions and position of that party. 4. The question whether such a departure would be unconscionable relates to the conduct of the allegedly estopped party in all the circumstances. That party must have played such a part in the adoption of, or persistence in, the assumption that he would be guilty of unjust and oppressive conduct if he were now to depart from it. The cases indicate four main, but not exhaustive, categories in which an affirmative answer to that question may be justified, namely, where that party: (a) has induced the assumption by express or implied representation; (b) has entered into contractual or other material relations with the other party on the conventional basis of the assumption; (c) has exercised against the other party rights which would exist only if the assumption were correct; (d) knew that the other party laboured under the assumption and refrained from correcting him when it was his duty in conscience to do so. Ultimately, however, the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted. In cases falling within category (a), a critical consideration will commonly be that the allegedly estopped party knew or intended or clearly ought to have known that the other party would be induced by his conduct to adopt, and act on the basis of the assumption. Particularly in cases falling within category (b), actual belief in the correctness of the fact or state of affairs assumed may not be necessary. Obviously, the facts of a particular case may be such that it falls within more than one of the above categories. 5. The assumption may be of fact or law, present or future. That is to say it may be about the present or future existence of a fact or state of affairs (including the state of the law or the existence of a legal right, interest or relationship or the content of future conduct). 6. The doctrine should be seen as a unified one which operates consistently in both law and equity. In that regard, 'equitable estoppel' should not be seen as a separate or distinct doctrine which operates only in equity or as restricted to certain defined categories (eg. acquiescence, encouragement, promissory estoppel or proprietary estoppel). 7. Estoppel by conduct does not of itself constitute an independent cause of action. The assumed fact or state of affairs, (which one party is estopped from denying) may be relied upon defensively or it may be used aggressively as the factual foundation of an action arising under ordinary principles with the entitlement to ultimate relief being determined on the basis of the existence of that fact or state of affairs. In some cases, the estoppel may operate to fashion an assumed state of affairs which will found relief (under ordinary principles) which gives effect to the assumption itself (eg. where the defendant in an action for a declaration of trust is estopped from denying the existence of the trust). 8. The recognition of estoppel by conduct as a doctrine operating consistently in law and equity and the prevalence of equity in a Judicature Act system combine to give the whole doctrine a degree of flexibility which it might lack if it were an exclusively common law doctrine. In particular, the prima facie entitlement to relief based upon the assumed state of affairs will be qualified in a case where such relief would exceed what could be justified by the requirements of good conscience and would be unjust to the estopped party. In such a case, relief framed on the basis of the assumed state of affairs represents the outer limits within which the relief appropriate to do justice between the parties should be framed. (at 444-6) We are satisfied on the evidence that the respondent conducted himself during the course of his negotiations and dealings with the appellant on the basis firstly, that the remuneration arrangements which he sought and eventually obtained from the appellant were in full satisfaction of all and any payments and/or allowances, including statutory entitlements, to which he might be entitled and secondly, that such payments could be made by way of cheque to an account conducted jointly by him with his wife without any taxation instalments being deducted. While it is unnecessary, in the context of our other findings to finally determine whether the respondent is estopped from asserting that he is an employee of the appellant, we have formed the view that in all the circumstances the respondent should be estopped from denying that the amounts paid to him by way of commission were paid in satisfaction and discharge of all and any entitlements which he may have under the award and the Annual Holidays Act. It would, in our opinion, be unconscionable to allow the respondent to have earned a substantial amount of remuneration under a system which he demanded from the respondent and under which payments were to satisfy all entitlements which would otherwise be payable to him as an employee and yet still be entitled to claim in addition at a later date a substantial amount by way of entitlement under the award and under the Annual Holidays Act. Mr Crow submitted that the respondent was in fact taking advantage of a right conferred upon him by statute and that because as a matter of public policy, parties could not contract out of these rights the claim could not be defeated by the doctrine of estoppel. The difficulty with this argument is that it misunderstands the basis upon which the estoppel applies. There is no attempt made by the appellant to deny the respondent any entitlements under the award or under the Annual Holidays Act . The estoppel has its genesis in the agreement between the parties which enables the appellant to be credited with payments already made in satisfaction of those entitlements. It is this agreement which creates the circumstance which, in our opinion, gives rise to the estoppel. It follows, in our opinion, that the operation of an estoppel does not deprive the respondent of any entitlements under the award or under the Annual Holidays Act. Any such entitlement has already been satisfied by the payments already made which have substantially exceeded any entitlements under the award and under that Act. 50 Mr Pearce submitted that the Commission had further commented upon and applied the doctrine of estoppel in Stone Microsystems (Aust) Pty Limited and Another v Kwong and Another (85 IR 237) where, at page 265, the essentials of the doctrine of estoppel as stated by Brennan J, as he then was, in Waltons Stores (164 CLR 387) are set out: In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that: (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant's property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff's reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs. 51 Mr Pearce also referred me to a judgment of Nicholson J of the Federal Court of Australia in Horsman v Commissioner of Main Roads (89 IR 343). 52 Mr Pearce argued that the fact that this application is made pursuant to a statutory scheme does not diminish or nullify the doctrine of estoppel as Payne v Howison was an application brought within the statutory scheme of the Annual Holidays Act. 53 Mr Pearce then addressed the essentials of estoppel in the present matter, putting that Council were led to act on the assumption that the applicant had chronic bilateral elbow and forearm pain, as a consequence of which the applicant would not be able to return to his pre-injury activities. Mr Pearce submitted that there was active inducement by the applicant to the assumption by the provision of medical certificates and representations by the applicant to the Council of his inability to carry out labouring work. Mr Pearce submitted that the applicant expected the Council to act on this information. Mr Pearce further submitted that the applicant had promoted the assumption and the consequence of the termination of his employment by direct representation to Mr Collins to effect the termination of his employment within a time frame advantageous to him in disposition of his claim for compensation. 54 Mr Pearce put that the applicant conducted himself so in the full knowledge of the statutory scheme of protection of injured workers in Part 7 of Chapter 2 of the Act; and knowledge that he would not obtain settlement by redemption or commutation unless he was no longer employed. This evidence is found at page 50 of transcript in the following terms: Q: And you said "All that I ask is that if you have to do it, do it quickly"? A: Exactly because I was going to Court and it would have been against my name in the Courts and I had a family to consider their wealth - their health and well-being as well as my own. Q: When you said "do it quickly" you meant terminate you, is that right? A: Well, that was the best way to do it and he said "I'll do it". Either that way. Q: And you wanted him to terminate you because your compensation case was coming up to Court, is that right? A. That's right and Ken Holt walked into the room just prior to that day and he said the job's not yours, you've got a chequered past. Six days, six weeks, six months, you will not have a job here" and I was presuming that were hitting me on my personality and I was getting very mentally drained down. 55 Mr Pearce continued his analysis of estoppel in submitting that the Council had acted on the assumption induced by the applicant in agreeing to $85,000 in redemption and $60,000 in commutation. 56 Mr Pearce then turned to the question "If the assumption is unfulfilled will the respondent suffer a detriment?" 57 Mr Pearce put that the only available answer to this question is "yes". Mr Pearce put that, should the applicant be allowed to repudiate the assumption and return to Council's employ, the amounts paid in redemption and commutation are lost and a fresh liability exposed. Mr Pearce further noted that there has been no action by the applicant to avoid detriment, which he put could be achieved by surrender to Council of the sums paid in commutation. CONSIDERATION Jurisdiction 58 I come to the view that this aspect of the matter is complicated by the fact that the Council retained Mr Dyet on the rate of pay attributable to a leading hand/gardener on transfer from the Parks and Gardens Section whilst the work he was undertaking at the time he became disabled, leading to termination of his employment, was that of a labourer. The work of a labourer as described in these proceedings results in participation in more physically demanding duties than that of a leading hand/gardener. The application seeks reinstatement to the classification at which Mr Dyet was paid at the time of termination of employment, thus seeking no more than allowed by the Act and opening discretion of the Commission to order reinstatement to that, or other, no less advantageous position. Merit 59 The application by Mr Dyet fails in merit to invoke intervention of the Commission on a number of grounds. Medical evidence 60 I must accept the submission of Mr Pearce that the certificate issued by Dr Laird lacks sufficient specificity to be of utility in this matter. The certificate issued by Dr Boyd is misdirected to the point as it certifies Mr Dyet fit to undertake the duties of a leading hand/gardener. 61 There is no medical evidence that Mr Dyet is able to perform the work of a general labourer. The only evidence is that of Mr Dyet, which is self-contradictory and contra-indicative of return to Council's employ, having regard to s.47 of the Workers Compensation Act. 62 Referral to a medical referee pursuant to s.96 of the Act is a discretionary power which I find is not justified in the circumstances of this matter as no case is made out by the applicant that he is fit to undertake the duties he was performing at the time of termination, and accordingly there is no issue to put to a medical referee. 63 Reference to a medical referee is further rendered futile by the issue of estoppel, to which I now turn . Estoppel 64 Mr Pearce has set out a compelling argument in support of estoppel by conduct. The active pursuit of termination of employment by the applicant prior to proceedings in the Worker's Compensation jurisdiction is, in my view, a unique and distinctive feature of this matter. 65 The application for orders for reinstatement is refused. 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