Industrial Relations Commission of New South Wales CITATION: Riley and WorkCover [2005] NSWIRComm 1025 APPLICANT: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Mr.P. Riley PARTIES: RESPONDENT : WorkCover NSW FILE NUMBER(S): 5317 and 6979 of 2003 CORAM: Ritchie C unfair dismissal termination of employment applicant's job moved to Sydney applicant objected to transfer on medical grounds applicant believed transfer to Sydney not necessary parties conferred over long period medical retirement dispute over procedure,employee not given opportunity to respond claim that respondent manipulated the medical process claim by respondent that applicant not fit to carry out the role of Inspector or Regional Inspector. Found that transfer of job to Sydney appropriate Found that applicant had been given opportunity to respond found that respondent had not manipulated the medical process CATCHWORDS: no negative finding made against applicant's character Found that the medical termination not harsh , unjust or unreasonable. Application for reinstatement of an injured employee Applicant medically retired re Workers Compensation claim. Applicant sought former position back or alternative position. medical evidence did not support full time working in Sydney previous position now located in Sydney,unfair on respondent to return job to Gosford. onus on applicant to prove fit to carry out previous position now based in Sydney. applicant failed. respondent investigated alternative positions but no success application dismissed. LEGISLATION CITED: Industrial Relations Act 1996 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) Antonakopoulos v State Bank 91IR 385 CASES CITED: Brigginshaw v Brigginshaw(1938) 60 CLR 336 Cansino v South Western Sydney Health 130IR1 HEARING DATES: 09/02/2004; 09/03/2004; 09/06/2004; 11/23/2004; 11/24/2004 DATE OF JUDGMENT: 03/03/2005 Mr. A. Hatcher of counsel Solicitors Jones Staff &Co LEGAL REPRESENTATIVES: Ms. K. Nomchong of counsel Solicitors Carroll& O'Dea DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: RITCHIE C 3 March 2005 Matter No IRC 5317 of 2003 IN THE MATTER OF: Public Service Association and Professional Officers Association Amalgamated Union of New South Wales on behalf of Peter Riley and WorkCover NSW. Application by Public Service Association and Professional Officers Association Amalgamated Union of New South Wales on behalf of its member Peter Riley re unfair Dismissal pursuant to section 84 of the Industrial Relations Act 1996. Matter No IRC 6979 of 2003 IN THE MATTER OF : Public Service Association and Professional Officers Association Amalgamated Union of New South Wales on behalf of its member Peter Riley and WorkCover NSW. Application by Public Service Association and Professional Officers Association Amalgamated Union of New South Wales on behalf of its member Peter Riley for reinstatement of an injured employee. DECISION [2005] NSWIRComm 1025 1 Mr. Peter Riley (the applicant) commenced employment with WorkCover New South Wales (the respondent ) on 28 October 1985 and was terminated by the respondent on 4 September 2003 . His last actual working day being 14 March 2003 and was on paid leave until his date of termination. On termination the applicant held the full time position of Regional Inspector, employed under the Crown Employees ( WorkCover Authority- Inspectors )Award. 2 In his claim for unfair dismissal filed on 24 September 2003 under s. 84 of the Industrial Relations Act 1996 ( the Act) the applicant noted that the reason for termination was medical retirement and in relief sought, ticked reinstatement to his former position , re-employment to another position or monetary compensation. 3 The application was allocated to McKenna C. After a preliminary hearing held on 13 October 2003 and a number of mentions, the Commissioner was subject to a s. 173 application and the matter was reallocated by the President of the Commission, to myself on 22 December 2003. 4 Matter No IRC 6979 of 2003 was filed on 5 December 2003 was also allocated to McKenna C. and a mention was held on 17 December 2003. A similar s. 173 application was made and this matter was also reallocated to the Commission as presently constituted. 5 A mention of both matters was held on 22 January 2004 and hearing dates of 21,22,23 April 2004 were allocated. These dates were subsequently cancelled as a consequence of the non availability of one of the applicant's witnesses. New dates for the hearing were then allocated for 2,3 and 6 September 2004. During the hearing further dates had to be added being 23 and 24 November 2004. It was agreed that both matters would be heard together. 6 During the 5 day hearing the applicant was represented by Mr. A. Hatcher of counsel and the respondent by Ms. K. Nomchong of counsel. Applicant's Case. 7 The following people gave evidence : Mr. Peter Riley (the applicant ). Dr. Thomas Oldtree Clark (by summons). Ms. Tara McCarthy (by summons). Mr. Alan Simpson Mr. Martin Carmody Dr. Barry Earp (by summons). 8 The applicant filed two statements (Ex. A filed 10 March 2004 and Ex B filed 26 August 2004). As previously expressed the applicant commenced employment with the respondent on 28 October 1985 as an Inspector based in Newcastle in the Country North Region. Around 1987 the applicant was transferred to Head Office at Roseberry and later to Parramatta. In 1995 he became Centre Manager for Civil Construction in the state. In 1997 the applicant relinquished his Manager role and transferred to Gosford to work as a Regional Inspector in the Country North Region. The applicant had applied for the transfer due to the stress and anxiety that he had experienced when having to attend workplace accidents involving fatalities and the difficult negotiations concerning the regulation of the recreational diving industry. The necessity for Inspectors to attend a work site prior to the removal of a deceased person was not required post March 2000. Due to stress from work the applicant stated that he started to experience memory loss, trouble with sleeping and drank heavily. He at that time did not seek medical advice but sought to remedy the situation by removing himself from the work environment where he considered he was at risk. As he already resided in Gosford he reduced his commuting time by 15-20 hours per week. This allowed the applicant to engage in an exercise regime undertaken as a stress release measure. 9 On 22 July 1999 an announcement was made by the respondent that all positions at the Tuggerah office would be transferred to the Metropolitan Region. Around the same time the applicant applied to be placed on the transfer nomination list for Country North Region. As he was advised that he could be transferred to anywhere in the Metro East Region he applied for voluntary redundancy. 10 The applicant stated that as a consequence of the prospect of returning back to Sydney, the place he had successfully transferred out of, and was a further stressor, he went to his doctor Dr. Earp (Earp) on 26 July1999. He was diagnosed with an anxiety /depressive condition that had resulted from multiple work related stressors. The applicant completed a claim for workers compensation the next day. 11 On 7 August 1999 the applicant received a medical certificate from Earp that returned him to work on a restriction of only working 3 days a week. 12 On 25 August Earp wrote to the respondent's insurer GIO and stated that " moving the worker to a different work location would be disastrous, as it would create significant physical and emotional distress ." Daily travelling to Sydney would impinge on the capacity of the applicant to engage in his exercise regime, which with medication was one of his stress control methods. His claim for workers compensation was accepted by GIO. 13 On 6 September 1999 he received a medical certificate returning the applicant to 4 days a week. A similar certificate dated 20 September 1999 was received noting that the applicant was not to attend sites of fatalities. 14 On 21 December 1999 the applicant received a medical certificate enabling him to return to fulltime duties. 15 In May 2000 the applicant received a medical certificate referring him to a psychologist a Dr. D. Bartholomensz. The restriction on attending a fatality site continued. 16 On 3 January 2001 the applicant received a final Workcover medical certificate from Dr. Earp with the only restriction being he could not work in Sydney on a permanent basis. Correspondence from Earp to the respondent dated 16 February 2001 stated that his restriction was permanent, is to work no more than 16 hours per week in Sydney and travel no more than 2 days per week. 17 During 1999/2000 the respondent was undergoing structural change and the applicant's position was amalgamated into the Metropolitan Region. The applicant was eventually placed in the Investigative team. This occurred in early 2002. 18 An aspect of the restructure was the rotation and relocation of the Construction team. On 14 February 2002 the applicant was advised that he would be relocated to the Parramatta office. The reasons for the move was so as to maximise the applicant as a regional inspector, to develop the skills and knowledge of other inspectors and trainees and to review files and documents. The applicant responded in writing on 20 February 2002 to Mr. John Watson (Watson) and Mr. Les Blake( Blake). In brief he stated that he had been carry out the task of mentoring other inspectors since his arrival at Gosford 4 years ago and a medical recommendation that "a move to Sydney would be disastrous." 19 As a consequence of the applicant's response Blake sought the views of the Human Resources Department as to the medical ability of the applicant to continue in the role of a regional inspector. 20 On 21 February 2002 a meeting of the Teams Consultative Committee was held to discuss the relocation of the Tuggerah positions. A record of that meeting showed the applicant's position being transferred to Parramatta. 21 The applicant was of the view that according to the record it also showed that a Mr. Neil Bourne was to replace his position in the role of an investigator from the Tuggerah office. This was done without the opportunity of the applicant to apply for this position. 22 On the same day the applicant was advised that his submission to stay at his present location had been unsuccessful. It was the applicant's view that he could carry out the role required of him from Gosford without the necessity to permanently work from the Parramatta office. 23 On 23 February 2002 the applicant appealed his transfer under the Grievance Policy. On 26 February the applicant was advised that his appeal had been unsuccessful. 24 The applicant still sought to appeal this latest decision and therefore a meeting was held on 15 March 2002. Present were Blake, Rob Myall, Kathy Maltby and the applicant. That meeting did not result in the applicant being successful. 25 A further meeting was held on 19 April 2002. Present at this meeting in addition to the previous meeting were Watson and Roger Plunkett. Again the applicant was not successful. At that meeting the applicant claimed that Watson said to him that he was required at Parramatta 5 days a week, it was not negotiable and that it was up to him to manage with his travel and exercise. 26 On 22 April 2002 the applicant's treating psychologist D. M. Bartholomeusz directed a letter to the respondent. The letter stated that in his opinion it would be counter-productive to shift the applicant to Parramatta as the applicant would be unable to continue his exercise programme. He stated that he did not believe that the applicant's concerns were frivolous or deliberately obstructive. He finished by hoping that the applicant could retain his base on the Central Coast and carry out his required supervision by electronic means or be allowed to travel in work time for necessary on-site supervision. 27 On 22 July 2002 another meeting was held where the applicant was advised that as a consequence of the concerns expressed in the medical reports concerning the travel component, management had decided to direct the applicant to see Health Quest. 28 On 4 September 2002 the applicant sought a meeting with the respondent's General Manager, as per the respondent's grievance procedure but was instead directed to see Watson. 29 On 25 November 2002 the applicant had a conversation with a Team Coordinator Ms. Sara McCarthy who stated to him that he may not have to go to Parramatta, but later that day she advised that she had been over ruled from up above. 30 Around this time the applicant sought to be considered for a transfer to a either Lismore or Grafton. Both positions came under the Country North Region. A meeting was held on 12 December 2002 to discuss the applicant's future employment. The applicant's evidence was that at that meeting Inspector Bultitude stated that he was not in favour of the applicant going to the Country North Region as he did not want to loose the position of Regional Inspector Construction. He believed the applicant was required in Parramatta. But, if the applicant was not found fully fit for the construction team then Bultitude would not stand in his way to transfer to another team. 31 On 21 January 2003 the applicant attended the Health Quest appointment. On 29 January the applicant received a copy of the Health Quest report signed by Dr. A. Casolin NSW Government Medical Officer. The recommendation found in that report expressed the view that : "Whilst Mr. Riley is fit to work as a Regional Inspector, he would be at increased risk of developing recurrent depression should he be required to travel an additional 4 hours on 3 or more days per week. Please advise whether this can be accommodated ." 32 On 15 February 2003 the applicant was advised that he had been unsuccessful for a position (District Coordinator-Lismore) he had applied for three years before. The same position was readvertised and the applicant applied again and was interviewed for the position on 17 March 2003. 33 On 14 March 2003 the applicant proceeded on annual leave and attended the Australian Masters Surf Life Saving competition in Queensland. During his period on annual leave correspondence was received at his home address( on 22 March ) consisting of a copy of a letter (dated 13 March 2003) that the respondent had sent to Health Quest which responded to a request from Health Quest for further information. The applicant had the opportunity to respond directly with the Government Medical Officer within 14 Days of the date of the letter. 34 On 26 March 2003 the applicant emailed Dr. Casolin of Health Quest indicating that he was on leave until 7 April 2003 and that he would formally respond upon his return. On 27 March 2003 the applicant received a further report from Dr. Casolin which was dated 24 March 2003. This report was made prior to the 14 days allowable for the applicant to respond. This report stated in part: " HealthQuest has now been advised that as an Inspector Mr. Riley is required to travel, and his restrictions do not enable him to do this. Mr. Riley is currently working in Gosford, however the Authority has advised that he is not carrying out the requirements of his position as a Regional Inspector, which require him to travel and be time flexible. HealthQuest has been informed that there is no position available. Given this information ,it is apparent that Mr. Riley is unfit for the full inherent job requirements of an Inspector or Regional Inspector as result of his travel restriction. A certificate to this effect is attached." 35 On 4 April 2003 the applicant received a letter from the respondent. The letter stated that as a consequence of a medical report that had been received the General Manager, WorkCover had decided to terminate his services. If the applicant did not wish to appeal this decision then his termination date would be 2 April 2003. The medical report from HealthQuest in part stated : "...that you are suffering from a health condition that will in all likelihood prove permanent and, as a result you are unable to perform the inherent requirements and job demands of a Regional Inspector and it is likely this will continue for the foreseeable future." 36 On 22 April 2003 the applicant submitted an appeal to the Medical Appeal Panel. 37 On 2 July 2003 the applicant applied for a position of Safety Coordinator with the Department of Commerce based at Lismore. The applicant was interviewed and subsequently advised verbally that he had been successful. He was later advised that written confirmation of the offer would be not be forthcoming until his appeal with the Medical Appeal Panel had been resolved. 38 On around 19 August 2003 the applicant received a letter from the Chairman of the Medical Appeals Panel indicating that in respect of his appeal the issues raised were of an industrial nature . "As you are not disputing the medical assessment by HealthQuest there is no basis for an appeal to the MAP." 39 Around 21 August 2003 the applicant received further correspondence from the respondent that stated as a consequence of the Medical Appeals Panel decision his date of medical retirement with the respondent was now to be 19 August 2003. This was later varied to 4 September 2003 through the use of outstanding annual leave. 40 On 5 September 2003 the applicant was advised that he had been unsuccessful for the position of Safety Coordinator at the Department of Commerce office at Lismore. On 8 September he received a similar letter from the respondent with respect for a position in Lismore as the District Coordinator. 41 On 24 September 2003 the Public Service Association (PSA) filed unfair dismissal proceedings in The Industrial Relations Commission of New South Wales. 42 On 29 September 2003 the applicant at the request of GIO attended upon Dr. Lewin (Adult General and Forensic Psychiatry) for an assessment. Within the doctors report (dated 31 October 2003) under the Summary Diagnosis and Opinion section the doctor stated that : "In my opinion ,he is fully fit for work. This opinion is based upon the fact that his Psychiatric condition has resolved. There are no enduring features of the condition . I consider Mr. Riley fully fit for work without restriction. The question of whether he travels to Sydney to work is a question of lifestyle and of personal preference. This is not essentially a matter for medical opinion." 43 On 10 November 2003 the applicant attended his treating doctor ,Dr. B. Earp who provided a brief medical report stating that the applicant was fit to commute to Sydney on no more than two days a week on a monthly basis, he was fit to carry out all the inherent duties of a Regional Inspector, including the travel component and was capable of the investigation of a fatality provided the deceased is removed prior to investigation. Dr. Earp regarded the above conditions as permanent. 44 On 18 November 2003 the applicant received correspondence from GIO to state that they would cease providing ongoing medical, hospital and associated benefits from that date and weekly compensation benefits from 1 December 2003. Their decision was based on Dr. Lewin's report. 45 On 18 November 2003 the applicant wrote to the respondent seeking that he be reinstated in accordance with s.92 of the Industrial Relations Act (the Act). This was denied so the PSA filed a further application on 5 December under s. 93 of the Act. 46 It was the applicant's submission that since being relocated from Tuggerah to Gosford he had carried out his position as a Regional Inspector without any criticism from the respondent. He was fit to travel to Sydney in accordance with his doctors restrictions. He had been carry out his role as a member of the metropolitan team since Head Office had transferred from Sydney to Gosford in early 2002. He believed he could carry out his role of file review from his Gosford office or by electronic means. He could and had carried out the role of mentoring inspectors by travelling as required. 47 Since his termination the applicant has sought alternative employment but without success. The applicant believed that at 54 years of age he would have difficulty in finding employment. 48 In examination in chief the applicant stated that there were three Regional Inspector positions available in Gosford and positions in Lismore. He also stated that he had previously reviewed files by electronic means or if the file was bulky, by having it delivered to Gosford. He also advised that he was unaware of any complaints received by Mr. Mayall. The applicant said he was prepared to go to Sydney five days a week but only be based there for two. The other three he would travel to Sydney if required, in working hours. This was in accord with his medical restriction. The additional commuting time to Sydney impacted on his exercise programme. 49 In cross examination the applicant agreed that he had held a statutory position. He accepted that he was a careful and pedantic man and that his position required a person of honesty and integrity. He also agreed that he could be relocated to anywhere in New South Wales. He agreed that he submitted a WorkCover medical certificate five days after he had been told that he was to be relocated to Parramatta. 50 In September 1999 the applicant was sent to see a psychiatrist, a Dr. Moorthy. He agreed that during his consultation with Dr. Moorthy he expressed homicidal tendencies about people in WorkCover and it was remarkable that he had been able to contain himself from putting his anger into action. 51 The applicant accepted that the exercise regime could be done anywhere but his preference was Terrigal Beach. He did not believe he could carry out his fitness regime at Parramatta because " just the physical demands of the commuting plus the work requirements at Parramatta and then exercise as well on top, it's just too big a day." He stated that his exercise regime was a preventative measure. It was his concern that if he did not maintain this regime then a recurrence of his pre-existing stress condition may occur. 52 He also stated that he suffered from neck and back injuries that impinged upon travel where he could not move around such as in a car when he could not use cruise control. This he had suffered from some years. He had not made a claim for Workers Compensation. 53 It was the applicant's view that the respondent by directing him to go to Parramatta was putting him in at risk to his health and safety. He believed there was an over arching responsibility to take care of him and his current medical condition. 54 In response to a question the applicant said that it was not the issue of travel that was the problem but the additional time above the standard working hours for the month. 55 He also accepted that as a consequence of job rotation his job was relocated to Parramatta. He agreed that during the meeting of 15 March 2002 he had with Mr. Blake and Mr. Watson, he had been given the opportunity to put his side as to why he should not transfer. He accepted that he was offered flexible work hours arrangement if he went to Parramatta. He also agreed that in the meeting of 19 April 2002 he made a presentation and was given the opportunity to raise his concerns. He agreed that another meeting on 31 July 2002 took place and again he had the opportunity to state his case. A fourth meeting was held on 12 December 2002 and again the applicant agreed he was given the opportunity to state his case as well as the respondent stating their case as to why the transfer should take place. 56 The applicant accepted that during his HealthQuest examination he did advise the doctor that he had concerns that if he got depressed that suicidal urges may recur and also the feelings of wanting to do serious harm to people. The applicant stated that in response to the HealthQuest report he wished to seek an extension for a reply, although when asked what documents he would have used he did not specify any rather he wanted "to look at all avenues and see what resources were available." 57 The applicant accepted that as part of his responsibility he was to interact with relevant bodies such as the Coroner, the Police, Company Directors, potential witnesses employer bodies and trade unions 58 It was the applicant's view that he could carry out his role of mentoring junior inspectors from Gosford as he had for the previous three years. He accepted that this view was not accepted by the respondent's management. In essence he could do his job from Gosford. 59 Post his termination and after him seeing Dr. Lewin the applicant accepted that the respondent made an offer to reinstate him to his position of Regional Inspector at Parramatta. This offer was rejected by the applicant. 60 It was the applicant's view that at the time of his medical retirement, he was fully capable of carry out the Regional Inspectors job subject to the medical restrictions as expressed by Dr. Earp. 61 In response to questions concerning the completing of the SAS Trustee Corporation, Application For Payment or Deferral of an SAS Benefit, it was the applicant's view that what Dr. Earp had written was the doctor's opinion. The applicant was happy to submit the application and did not believe it to be false although in responses to previous questions he himself believed he was not incapacitated. 62 The applicant accepted that whilst part of the above form had been completed by a Dr. Clifford Smith, he had only seen that doctor once in three years. 63 In re examination the applicant stated that whilst located at Gosford he had been involved in complex investigations of matters located in the Sydney CBD and Parramatta areas. The applicant also said that he believed a transfer to a country area was a compromise that should have been considered. 64 He rejected the option of moving to Sydney because of financial reasons, family reasons and the lack of respite from actual work stresses in Parramatta. 65 Dr Thomas Oldtree Clark (Clark) is a consultant Forensic Psychiatrist. Solicitors for the applicant wrote to Clark on 26 February 2004 and sought a report on the applicant seeking his views by the responding to various posed questions. He was also provided with medical reports from Doctors Earp, Casolin, Moorthy, Lee, Parmegiani ,Lewin and a letter from Bartholomeusz, a position description for Regional Inspector and rehabilitation reports from the rehabilitation provider Karrios . Clark saw the applicant on 27 February 2004 and provided a psychiatric report and a psychiatric impairment rating scale report which became evidence in these proceedings. It was the view of Clark that the applicant suffers from a chronic Post-Traumatic Stress Disorder. The applicant was not fit to return to fulltime work in Sydney. He was only fit to work in his home region, would need a gradual return to work and be a hazard to his health to force a transfer. He was not fit to return to work without restriction. 66 In cross examination Clark stated that the applicant saw Sydney as a "war zone" and was a place that he could not attend because it brought on recurrences of stressful and anxious feelings. His presence in Sydney for his consultation with Clark had brought on feelings of apprehension and caution. It was Clark's view that the applicant was much better psychologically since his medical retirement. 67 The applicant was fit to continue his work in Gosford but to work fulltime or part time in Sydney would be detrimental to his health. 68 Ms. Tara McCarthy gave evidence and advised that in November 2002 ,she took up the position of Team Coordinator based in Gosford, in the strategic intervention arm of the construction team and became the applicant's supervisor. She stated that she had conversations with the applicant concerning his proposed transfer to Parramatta. She at the time did not believe such a transfer was necessary, but later on the decision was taken out of her hands. She was unaware that the applicant had been placed in strategic intervention because he had refused to rotate to Parramatta. 69 Mr. Allan Simpson (Simpson) was employed by the Public Service Association from June to December 2003 and came into contact with the applicant concerning his termination from the respondent. Simpson gave evidence that he had spoken with the applicant concerning his examination by HealthQuest and his application to work for Department of Commerce. 70 Mr. Michael Carmody (Carmody) is employed by the respondent as Senior Inspector on its Construction Team. He also held a position with the PSA whereby he represented the industrial interests of the Inspectors. Carmody gave evidence of previous disputes that had occurred when Inspectors had been required to transfer from one location to another. He stated that there had been action to formulate a draft policy for the rotation of Inspectors within the Construction Team. The policy was never formally accepted by the PSA. Whilst not accepted it was referred to for guidance in practice when dealing with rotations for Inspectors. Whilst rotation had taken place it not necessarily resulted in a geographical move by the Inspector. Carmody stated that rotation was a healthy process if it was approached in the correct manner with guidelines in place and meaningful consultation. Carmody recognised that the respondent had the right to move employees in accordance with the law under which the employees are employed. 71 Dr. Barry Earp (Earp) gave evidence that he had been the applicant's general practitioner since 26 July 1999 and that he treated the applicant with respect to the applicant's workers compensation claim providing the applicant with appropriate medical certificates. Earp stated that he had placed the applicant on an anti-depressant medication and continued to monitor his health. It was Earp who placed a restriction on the applicant from travelling to Sydney on a regular basis, because it would interfere with the applicant's physical fitness regime. Maintenance by the applicant of this physical fitness programme was important for the applicant's mental wellbeing. It was not so important as to where the exercise took place but rather than it was done. Earp agreed in cross examination that the figure of 16 hours restriction placed on the applicant by Earp was initiated by the applicant. He also advised that he had been approached by the applicant in February 2002 and asked to write a report as to the medical outcome if the applicant was transferred to Sydney. Earp was concerned that the extended period of time in travelling to Sydney by the applicant, would in time lead to the developing of a serious depression. He would be going back to 1999 where he suffered from heavy drinking, thoughts of suicide and anger towards the respondent's management. 72 It was Earp's view that management decision making was not taking into consideration its effects on the applicant. He also stated that he did not think that the applicant was suffering from any level of paranoia or persecution in the applicant's response to Dr. Lewin's report. 73 It was Earp's view in November 2003 that the applicant could carry out all the duties of a Regional Inspector, including the travel component but could not travel to Sydney more than two days a week. He could travel to Sydney inside working hours with impunity. 74 In August 2003 the applicant came and saw Earp. The applicant had a form that he wished the doctor to complete. Incorporated in that form was a section entitled "Confidential Medical Report on Incapacity". The form was from the Superannuation Trustee Corporation. Within the form was the passage "The report forms part of the member's application for the payment of benefits on the grounds of incapacity and will be used to help determine benefit eligibility". 75 Earp admitted that he ticked the section that stated : "In your opinion, the member will never be able to be employed in his or her normal occupation due to his incapacity". 76 He admitted that there was an inconsistency between what he expressed in August 2003 and on 10 November 2003. Whilst he stated that there was no room in the Superannuation form for qualifying his response, he did admit later that there was available a section for "any other comments". The doctor completed the form the way he did to assist the applicant with respect to obtaining a taxation benefit. He admitted that it was a false statement. He did it as a consequence of the applicant being terminated and all options open to the applicant being closed off. 77 In responding to questions by the Commission, Earp confirmed that it was a preference of the applicant rather than a medical requirement that the applicant carry out his daily physical regime on Terrigal beach rather than the parks and or swimming pools located in Parramatta. 78 It was the applicant's decision not to give further evidence after the respondent's Watson had finished his evidence, which included the subject of the applicant's Application for a Personal Firearm Licence. The Commission had advised the applicant that he would be given the opportunity to return to the witness stand to respond to this particular subject if he so wished. 79 The admittance of the two firearm applications as evidence was objected to by Mr. Hatcher but was allowed by the Commission on the basis of giving the applicant the opportunity to give further evidence . Respondent's Case. 80 The respondent provided the following witness statements : Anthony John Ryan Ricky Bultitude Les Blake Paul John Olive Helen-Anne MacAlister John Watson 81 Mr. Anthony John Ryan (Ryan) gave evidence that he was the Manager of the Occupational Health and Safety Services Unit-Human Resources for the respondent located at Gosford and has been employed with the respondent since August 2000.He has held his present position since January 2003. Ryan stated that whilst not involved in the referral of the applicant to HealthQuest he did review the applicant's file and confirmed that the procedures that the respondent are required to follow were followed. He also said that the information contained in the referral letters was consistent with the information provided by the managers in relation to the inherent requirement of the Regional Inspector's position. Unless HealthQuest asked for further information the respondent had no further role to play. Where HealthQuest advised that an employee was unable to perform the inherent requirements of their role then the employer must act upon that advice immediately unless alternative duties can be found. 82 In cross-examination Ryan confirmed his view that the process between the applicant and HealthQuest had proceeded in accordance with policy. It was his view that the second correspondence by the applicant to HealthQuest did not raise any issues that were not expressed in previous information received by HealthQuest. He also did not believe that the respondent was in contravention of either the state or federal anti-discrimination legislation or that the applicant suffered from a disability such as to make a particular aspect of their policy applicable. Ryan agreed that the applicant had not been given 14 days to respond to the HealthQuest but the respondent had met their requirement by directing mail registered to his home. He could not answer for HealthQuest. 83 Mr. Ricky Bultitude (Bultitude) had worked for the respondent since October 1994 and was currently Acting Team Manager of the Government and Rural Teams located at the Gosford office. He stated that at the time of the applicant's rotation into the Investigative arm at Parramatta, the Sydney CBD and Parramatta offices had 15 inspectors with less than two years experience. In his view there was a need for the Construction Team to have its high level Inspector positions based in either Sydney CBD or Parramatta. It was his opinion that a Regional Inspector could not carry out the inherent requirements of the role from Gosford. It was Bultitude's view that assisting and mentoring junior Inspectors could not be done satisfactorily by the use of internal and electronic mail systems. Basing the applicant at Parramatta would have facilitated the development of newer or more junior Inspectors through various activities. Also having the applicant based at Parramatta would have assisted in more effective engagement with industry stakeholders. 84 He also said that as the applicant was not in the management stream it was not possible for him to be considered for the position of Team Co-ordinator of the Strategic Intervention arm of the Construction Team. The position he held was in the technical based operations area. 85 Bultitude dismissed the applicant's suggestion that he had been replaced by an employee named Inspector Neil Bourne. Bourne is an Inspector not a Regional Inspector. Bourne was placed at Gosford as part of the rotation scheme and to better carry out his role. 86 Bultitude stated that the Construction Team is the largest in terms of staff and volume of work and is the most active Team in terms of complaint and accident investigations and had 45 Inspectors with only two based in Gosford. The rest are based at Parramatta or Sydney CBD. 87 In cross examination Bultitude stated that at the present moment he did not know of any inspectorial positions being created in Gosford. There were two Inspector's positions in Gosford. He at first gave evidence that one was vacant but later stated that he had not managed the team since February 2004 so he was unaware of the vacancy situation. 88 He repeated his view that the applicant's position was needed in Parramatta and rejected the option that the job could be done by being based in Parramatta two days a week and travelling down from Gosford as required. 89 He stated that since the medical retirement of the applicant no other forcible relocations in the Construction Team had taken place. He also clarified that if the applicant had taken a role in Lismore that was a lower role than Regional Inspector he would have taken the Regional Inspector's position with him and continued being paid at the same rate, if he had been successful. Bultitude stated that he did not wish to loose the Regional Inspector's position from the Construction Team. 90 In re-examination Bultitude stated that as at mid 2002, he did not believe that the applicant had been carry out to a substantial extent the duties of a Regional Inspector. He listed the duties of mentoring, developing and leading and implementing project teams, investigating teams and interacting with the industry. 91 Mr. Leslie Mervin Blake (Blake) is currently the Country North Manager for the respondent whom he joined in 1988.Prior to that he held the position of Acting and then appointed permanent Team Manager of the Construction Team. He outlined the history of the introduction of the Team system, industry based work and rotation of Inspectors. Blake stated that from 1999 to June 2002 the applicant was on restricted duties or restricted from travelling for the whole of this period. In February 2001 Blake did not believe it was workable for the applicant to be able to do his job in the long-term with a restriction of only being allowed to work 16 hours in Sydney on no more than 2 days per week. He believed that at the end of 2001 the applicant was not performing the inherent requirements of his role and to perform his role effectively he had to be relocated to Parramatta or Sydney CBD. The requirement of the applicant to go to Parramatta was not a restructure but a rotation that in this case required a relocation based on organisational needs. Blake also stated that Neil Bourne did not replace the application's position in Tuggerah but was part of a rotation in which he maintained his position. Blake did not believe the applicant would have been in a position to carry out the mentoring practice unless he was on site in Parramatta. Ad hoc contact when mentoring staff was also essential. 92 In cross examination Blake stated that rotation can occur without the Inspector geographically moving but in the applicant's case the respondent wanted to maximise the potential of the position and the full range of duties and the position description. With 45 of the Inspectors based in either Sydney CBD or Parramatta it made sense to have the Regional Inspector based in either of those two places. He also did not believe that the respondent would have had the level of presence that they wanted if they had gone along with the applicant's travel restrictions. In Blake's view there was no substitute for face to face interaction. 93 Blake agreed that at the time of requesting the applicant to transfer to Parramatta, the respondent was aware that he was operating under a medical restriction which prevented him from travelling to Sydney more than two days a week. He did not see that two days a week would have met the end they were looking for. Blake sought some compromise with the applicant through flexible arrangements that could be offered to him. 94 It was Blake's view that the applicant had travelled to Sydney when required. At no time had he been subject to criticism for not travelling to Sydney but he believed there was a body of work that was not being appropriately dealt with due to the Regional Inspector being located in Gosford eg. reviewing infringement notices. Blake was of the view that the nature of the construction industry meant that it required quite a degree of vigilance on all parts. He did not believe that this could be done by the applicant with the travel restrictions that were in place. In 2001 the applicant was not rotated because management were aware of the restrictions. 95 Mr. Paul John Olive (Olive) filed a witness statement but was not required for cross-examination. He is currently Acting Team Co-ordinator ,since October 2003 for Newcastle District in the Country North Team. He has been employed with the respondent since 1998. He stated that he was present at a meeting with the applicant, Blake and Bultitude on 12 December 2002. He confirmed that Bultitude did not wish to loose the position of Regional Inspector to another region, and if the applicant did move away, the position would remain in the Construction Team. 96 Ms. Helen-Anne MacAlister (MacAlister) filed a witness statement but was not required for cross examination. She is a solicitor for the respondent's lawyers Carroll & O'Dea . She stated that on 17 December 2003 she wrote on behalf of her client to the applicant's Union and offered the applicant a position of Regional Inspector, Construction Team based at Parramatta for a six month trial . The position would be subject to the passing of a medical examination. It also advised that the respondent had assessed the skills and experience of the applicant with a view to identify a match for suitable positions within the respondent's Head Office. No position was found nor was likely in the near future. A written response dated 20 January 2003 was received from Jones Staff & Co on behalf of the applicant's Union which stated that due to particular medical reports the applicant was unable to accept the offer. Other attachments to MacAlister's affidavit showed extracts from the Terrigal Life Saving Club's web page highlighting some of the wins of the applicant in various surf carnivals. 97 The final witness for the respondent was Mr. John Watson (Watson). He is the General Manager of the Occupational Health & Safety Division(OHS) of WorkCover and has held this position since 1 April 2004. Prior to this appointment he was the Director of the Service Delivery Group in the OHS Division of WorkCover since July 1999. He had been employed by the respondent and its predecessor since 1984. Watson gave a detailed background describing the restructure of the respondent which resulted in the way it is managed today, its divisions and its focus. A result of the restructure was the concern by employees that they may be restricted in their movement, so a trial concept of rotation through a team was experimented with team members requiring to take on a variety of work. The purpose of the restructure was to create a team designed to determine its direction and business needs together. At the end of the trial the Construction Team was finally designed so that it would operate under three units being Investigation, Response and Intervention. When the applicant applied for the Regional Inspector's position in Gosford Watson was unaware of any health issues that the applicant was experiencing . Watson recalled in July 1999 holding a meeting discussing the impact on the move to Gosford from Tuggerah and advising the applicant that he may be moved to the Sydney CBD or Parramatta. A few days later the applicant proceeded on sick leave and thereafter restricted duties. Watson was aware of the applicant's applying for nominated positions in the country north region. The applicant was offered a position in the Dubbo office but this was rejected. It was Watson's view that part of the Regional Inspector's requirements was to be available for the mentoring and assisting the newer Inspectors in both Parramatta and the Sydney CBD and along with many other positions he did not believe this could be carried out using internal and electronic mail systems. He also believed that the position of Regional Inspector was a field position and required essential interaction with all parties. Watson did not believe that the applicant returned to pre injury duties as the restriction on his work activities and travel remained in place. 98 At the beginning of 2002 the applicant was advised that his position had rotated into the Investigation arm based at Parramatta. The applicant refused to rotate. The need for the Regional Inspector was in Parramatta or the Sydney CBD as that was where the work demands existed . 99 Watson did not accept that Inspector Bourne (Bourne ) took the applicant's place. Bourne was an Inspector not a Regional Inspector. The position that Bourne carried out was not the applicant's substantive position . 100 Watson stated that he did not believe that the applicant's medical advice was being ignored by the respondent but was very much part of the assessment process. He was acutely aware of his responsibilities with respect to the applicant and OHS. 101 The reason why the dispute was directed back to Watson, and not transferred to Kate McKenzie was because Watson was waiting on a determination by HealthQuest. It was inappropriate to do otherwise until a determination had been made by him. 102 Watson had no recollection as to a submission by either Bultitude or McCarthy in relation to the applicant's relocation. 103 Watson stated that a country inspector was required to travel vast distances on a weekly basis. On the occasion of a serious or fatal workplace incident, travel to the scene is immediate without the opportunity for planning for such travel. 104 Watson advised that the respondent conducted an investigation as to whether there were any positions suitable for a Regional Inspector in Gosford but were not successful. Nor could they find any other role suitable for the applicant. He stated that the Human Resources Branch reviewed the rest of positions available and discussions took place regarding the New Business Improvement Process and whether a position was likely to become available which would suit the applicant but no match could be found. A further review, including the applicant and his union representative, of alternative positions again took place in February 2004 but was not successful. Watson was unaware of any vacant inspectorial positions in Gosford. 105 In cross examination he stated that he had a concern that the medical certificates restricting his travel to Sydney were current. He also agreed that the respondent would take a dim view of an employer who directed an employee to perform work contrary to medical restrictions. He confirmed his view that he believed it was necessary for the Regional Inspector to be available five days a week in the Parramatta office. 106 Watson confirmed that the offer made by Blake to the applicant that he work three days at Parramatta and two days at Gosford was inconsistent with his medical certificates and the first response from HealthQuest. 107 Watson also accepted that there was no medical restriction on the applicant travelling within working hours. If he was being paid for the travel he would travel such as a country based Regional Inspector. It was Watson's view that as a consequence of his discussions with the applicant the respondent would be placing him in danger if he was placed in a position of travel. He based this on a medical certificate from Earp and his knowledge of the travel requirements of the position. 108 Watson was involved in the process that resulted in the applicant being terminated as a consequence of the final report from HealthQuest. He accepted that as a consequence of the applicant being on annual leave when the second HealthQuest report came down, the applicant was not given the opportunity to respond to the matters raised in the report. The grievance procedure which the applicant invoked and sought to speak with Kate Mackenzie was made redundant when HealthQuest's second report found the applicant unfit to carry out his position of a Regional Inspector. After receiving the second report Watson stated that he had discussions with Human Resources Department and the applicant's Team Manager to seek alternative positions. 109 Watson stated that as a consequence of information that came from the applicant's medical reports and summons served on the applicant in respect to this case, Watson had felt threatened for himself and for his managers so he took action to seek information from the New South Wales Police Department with respect to gun ownership by the applicant. Watson did accept that prior to this issue that resulted in him feeling threatened, he had not previously had any cause to have any similar concerns when dealing with the applicant. 110 It was Watson's view that there were no vacancies that could have been offered to the applicant as a Regional Inspector. With respect to the position that Bourne took up, the applicant could have taken up a new position as an Inspector, which would have meant downgrading the applicant which was against the usual practice within the Public Service. Travel to the northern part of Sydney would still have been involved. 111 In re examination Watson was asked questions concerning the applicant's application for a Personal Firearms Licence, copies of which became exhibits in the case. He was asked of his views with respect to the answers given by the applicant in completing the firearm licence. One form was completed on 31/10/02 and the other on 19/3/03. In both forms the applicant was asked the question under the heading : H. PERSONAL HISTORY( Please mark "x" in one of the box for each question) Have you in NSW or elsewhere : d).Been referred or treated , within the last 12 months, for alcoholism, drug dependence, or mental or nervous disorder ? The applicant in both applications crossed the "no" box. 112 It was the view of Watson that it raised concerns in his mind that the applicant had not been honest in filing out this particular form. It raised questions of the applicant's integrity in that he made a declaration before a witness that was incorrect. Watson saw the action of the applicant as a matter of dishonesty and misconduct in respect to his integrity as a WorkCover inspector. It would make his suitability questionable to continue as a WorkCover inspector. 113 Watson stated that the applicant would travel anywhere in NSW as long as he was paid, which in Watson's view would not leave much time for the applicant to carry out his work. He confirmed that in reports given to him concerning meetings between the applicant and the respondent's representatives alternative ways of work were offered to the applicant, but were not accepted. He also did not believe taking into consideration the applicant's travel restrictions that the applicant could carry out the full duties of a Regional Inspector. Once HealthQuest had reported that the applicant was found medically unfit for work the respondent did not have any discretion to maintain his position. Final Submission by the Applicant. 114 The termination of the applicant was unfair. Firstly he was directed to attend for work at Parramatta contrary to accepted medical restriction on his ability to commute to Sydney on a full time basis. He was terminated because of this restriction. This restriction was genuine yet was subject to doubt by the respondent. Medical evidence from various doctors supported the travel to Sydney restriction. Because he had this restriction the respondent believed he could not have done all his duties therefore he was terminated. The respondent should have modified the applicant's duties and he could have therefore been accommodated indefinitely. The applicant had been working in Tuggerah/Gosford since 1997 without complaint yet he was directed to go to Parramatta. 115 The respondent manipulated HealthQuest process by the way in which the respondent sent its referrals to it. The medical restriction was travel to Sydney but the opinion was whether he could do the Regional Inspectors role per se. when that was never part of any medical restriction. It was the extension of the working day that was the medical concern, not travel when it formed part of the working day. The comments made by the respondent in the second referral were false. Dr. Casalini relied on what the respondent stated and then gave his report. 116 The applicant was denied procedural fairness. The applicant was not provided with an opportunity to respond to HealthQuest's report. Dates provided to the Commission show this. The applicant was not at home but away on annual leave at the time the report was sent to his home address. HealthQuest concluded the process prior to the 14 days passing. The applicant was not given the opportunity to speak with either HealthQuest or the respondent. Discussions concerning what alternative positions he could be considered for did not take place. He was also prevented from the opportunity of speaking with the General Manager Ms. Kate Watson. As the applicant sought to appeal the findings of HealthQuest he was prevented from doing so because the appeal did not have a medical basis. 117 There was a failure by the respondent to accommodate the applicant's restriction. Taking into consideration the size of the respondent for the respondent to state that there was no alternative was an unreasonable proposition. The respondent offered three days in Sydney and two in Gosford, against what was expressed in the medical certificates. That was the narrowness of the difference. 118 The applicant sought to be reinstated as a Regional Inspector at Gosford or in the alternative ,some other alternative position. 119 It was Mr. Hatcher's submission when comparing the medical opinions of Dr. Earp on 29/8/03 and in November 2003 was that the first was written with the view that the applicant was to be terminated by the respondent and the second supporting the applicant's injured workers application. In terms of s. 94, the applicant relied on the medical evidence of Dr. Clarke's report. 120 With respect to remedy, in terms of the unfair dismissal case, the applicant seeks reinstatement to the position of Regional Inspector based at Gosford with back pay discounted by any payments received by the applicant in the interim period. The same is sought in the injured workers application. As an alternative the applicant would seek an inspectors position based at Gosford. A position which through evidence placed before the Commission exists. 121 Mr. Hatcher responded with respect to the claim that the applicant represented some danger to the respondent's employees by stating that there has been no evidence of the applicant ever threatening anyone at the respondent's business. No medical evidence was brought to state that this man, because of his mind, is a danger to other people. There had been no evidence that the applicant had in any way misused his fire arms. 122 With respect to the integrity issue, Mr. Hatcher stated that one only had to look at the applicant's long history with the respondent. His work had been carried out with impartiality and fairness. Reinstatement could still be based on this integrity shown at work. The Superannuation Benefits document can not be used against the applicant as it was the opinion of Dr. Earp and Dr. Smith not the applicant. If the Commission had doubts over the difference between the August 2003 medical opinion and the November 2003 medical report, then there are other medical opinions available to the Commission to rely upon in arriving at a decision to reinstate the applicant. With respect to the applicant's responses to the completion of the Application for a Personalised Firearms Licence and the respondent's positively advancing that they were false statements, it was up to the respondents to prove within those two periods that the applicant had a mental or nervous disorder and that he was treated for such a condition. Mr. Hatcher stated that the Commission cannot be satisfied on the evidence that the applicant suffered a mental or nervous disorder for which he had been referred or treated in that period. Final Submission by the Respondent. 123 Ms. Nomchong provided the Commission with both written and verbal submissions. It was her submission that for the applicant to be successful in his s. 84 claim he must first establish that the termination of employment on medical grounds was either procedurally or substantively unfair. Secondly , the applicant must then establish that the facts of the matter warrant the intervention of the Commission for the award of a remedy. 124 In the s.93 case, the applicant must prove that he is fit for the position for which he is applying. Both applications turn on the applicant establishing that he is medically and otherwise fit for the position of a WorkCover Inspector. The respondent stated that the medical evidence provided no basis for the applicant to discharge his onus in relation to proving past or present medical fitness. 125 It was the respondent's view that the applicant was not a person of truth with respect to his Superannuation Benefits claim and his private Firearms Licence applications. This raised serious issues as to his integrity and therefore his suitability as an officer of the respondent. The report of 31 October 2003 by Dr. Lewin stated he was fit to work, with his exercise regime on Terrigal Beach a matter of personal choice, in comparison to the report by Dr. Earp in August 2003 stating he was totally incapacitated for work. 126 Four days after being advised in 1999 that he may be transferred back to Sydney he saw Dr. Earp and started a workers compensation claim. He was diagnosed with anxiety /depression as a result from the stresses from work and about being transferred back to Sydney. The claim was accepted and the applicant commenced a programme of a gradual return to work under the guidance of an accredited rehabilitation provider. When he received final clearance from Dr. Earp on 3 January 2001 it was with the restriction that the applicant could only travel to Sydney two days per week. This restriction was permanent. On 23 April 2001 the applicant saw Dr. Parmegiani, General and Forensic Psychiatrist. He stated that the applicant had developed anxiety and depression in the context of work problems. He recommended that the applicant be not transferred back to Sydney. From July 1999 to February 2002 the applicant was either on restricted duties or on a return to work programme. 127 On 14 February 2002 the applicant was advised he was as part of a scheduled rotation his position had been relocated to the Parramatta office. The applicant objected and his travel restriction to Sydney was raised. The applicant lodged an appeal under the respondent's Grievance policy. Four meetings then took place during 2002 between the applicant and various members of the respondent seeking to try and resolve the issue. Various options were offered but rejected by the applicant. He therefore was given the opportunity to state his case. During 2002 the applicant spent periods away from work on sick leave. 128 In late November 2002 the applicant was advised that he was to be directed to HealthQuest for medical assessment. The examination occurred on 21 January 2003. The applicant received a copy of the medical report on about 29 January 2003. On 14 March the applicant proceeded on annual leave and attended a surf carnival in Queensland. Whilst he was away correspondence from the respondent arrived advising him that they were unable to accommodate his restrictions in some alternative position and that he until 27 march to respond. The applicant advised Dr. Casolin by email that he was on leave and that he would respond on his return which was 7 April. On 24 March Dr. Casolin wrote to the applicant and advised that he as a consequence of no other suitable positions available, and considering the applicant's position required him to travel and be time flexible, it was apparent that he was unfit for the full inherent job requirements and accordingly a certificate had been issued to that effect. The respondent had no control over the procedures of HealthQuest. 129 On 4 April the applicant was advised by the respondent that he would be terminated effective the date of the HealthQuest determination of 2 April. The applicant appealed this determination but was later advised that as he was not appealing the medical decision there was no basis for an appeal. 130 The applicant was medically retired as at 4 September 2003. Just prior to his termination the applicant had his general practitioner Dr. Earp complete a "Confidential Medical Report on Incapacity " which the applicant supplied to the SAS Trustee Corporation for the purposes of determining the applicable taxation on the applicant's superannuation. Dr. Earp opinion which was confirmed by another doctor at the same medical centre that the applicant was unable to carry out the inherent requirements of his job. The superannuation benefit was taxed at a lower level. 131 On 10 November 2003 Dr. Earp wrote out a medical certificate for the applicant stating that the applicant was fit to carry out the inherent requirements of a Regional Inspectors role other than he could not travel to Sydney more than 2 days a week. Dr. Earp admitted that the applicant had written the report for him. 132 On 18 November 2003 the applicant sought for the respondent to reinstate him to his previous position. Attached was the medical certificate dated 10 November from Dr. Earp. The respondent did not accede to this request. 133 On 5 December 2003 an application was filed under s. 93 of the Act. 134 On 17 December the respondent made an offer of employment to the applicant to return to his substantive position for a trial period of 6 months. This offer was rejected by the applicant. 135 On 27 February 2004 the applicant was examined, at the request of the applicant's own solicitors , by Dr. Thomas Oldtree-Clark who stated that the applicant was currently suffering from a Post-Traumatic Stress Disorder and ensuring chronic depressive illness. 136 It was Ms. Nomchong's submission that the evidence of Dr. Earp should be disregarded. The opinion of Dr. Oldtree-Clark was because of the current stated depressive anxiety, make it highly inadvisable to require him to return to work in Sydney because that place had become a traumatising challenge or a "war zone". It wasn't the travel but the difficulties that the applicant faced in performing any duties in Sydney. Dr. Moorthy had views that if the respondent could not find a position for the applicant in the Gosford/country area then he should be retired. 137 The nature of the medical evidence presented an insurmountable hurdle for the applicant as he cannot discharge the burden of proof as to his current fitness pursuant to the s.93 application. 138 With respect to the claim that the applicant was not provided procedural fairness with respect to his opportunity to place matters before HealthQuest made their determination, it was Ms. Nomchong's submission that he got the opportunity on appeal. What he put up were not medical issues but industrial matters. 139 Prior to termination the respondent considered alternative positions but at the time they faced a large amount of medical material which covered the issue of travel. Be it restrictions on travel to Sydney or just travel or the people in Sydney. 140 In response as to whether the applicant is fit for reinstatement Ms. Nomchong stated that the Commission could not be satisfied that there was a medical certificate which represented a true basis of what this applicant's medical status is. 141 The medical report by Dr. Lewin resulted in the applicant's workers compensation benefits ceasing. The respondent then offered the applicant his substantive job back. It was rejected which went to the procedural fairness point, in that he was stating that he had not been given the opportunity to respond between the first and second HealthQuest determinations. 142 The termination of the applicant did not lack procedural fairness. It allowed the applicant to remain on light duties for three and a half years. The termination was not done in haste. 143 It was the evidence of the various respondent's witnesses that it was not possible to carry out the inherent requirements of the regional Inspectors position located in Gosford. The overwhelming majority of inspectors were located in either Parramatta or Sydney CBD and that was where the Regional Inspector should be located on a full time basis. 144 Ms. Nomchong stated the applicant was not a fit and proper person to be reinstated or redeployed. He improperly influenced Dr. Earp, he misrepresented to the Superannuation Trustee Corporation and made false representations to the NSW Police Department with respect to his two applications for firearm licences. The applicant had the opportunity to get back into the witness box but he did not. No response was given by the applicant that he has taken steps to remedy the situation with the Superannuation Fund. He is not appropriate for reinstatement. 145 The applicant's claim under s. 93 was supported by the medical evidence of Dr. Earp .In accordance with the Act the Commission had to consider just that certificate and no other. 146 It was Ms. Nomchong's submission that the applicant can not run both a s.84 and a s.93 simultaneously. He was not entitled to run both. If the applicant was terminated on medical grounds then that is the only basis for a s. 92 claim, yet at the same time states that the termination was substantive or procedural unfair. Applicant's Submission in Reply. 147 It was Mr. Hatcher's submission that the medical evidence allows the Commission to reinstate the applicant into his former position of Regional Inspector based at Gosford or as an Inspector based at Gosford. The applicant did not receive procedural fairness with respect to his lack of opportunity to respond to HealthQuest's second determination. If the Commission had concern over the evidence of Dr. Earp then the Commission can look at all of the evidence to come to a decision. The applicant wished to be reinstated to his previous position as a Regional Inspector based at Gosford who would travel to Sydney on a needs basis. There was no evidence before the Commission that the applicant suffered from a medical or nervous disorder for which he required treatment at the relevant times. 148 It was the submission of Mr. Hatcher that notwithstanding the views of the two doctors expressed in the Superannuation Form going to the applicant's health ,the applicant still believed that he had been terminated unfairly. Considerations and Decision. 149 In considering this matter I believe it is necessary to determine whether the Commission can hear both a s.84 application and a s. 92 application simultaneously. I do not believe there is a bar on an applicant making such applications in the manner that has occurred before me. The clear requirement is that the applications be given separate consideration. 150 I will first consider the s. 84 application. In an unfair dismissal case the applicant bears the onus of proof (see Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) : " the onus is on the applicant to establish that intervention is warranted....he must discharge the onus on him to satisfy that his is a proper case for the Commission's intervention." It is incumbent on the applicant to establish that the dismissal was harsh, unjust or unreasonable. 151 The applicant was terminated as a consequence of him being found medically unfit to carry out the full inherent job requirements of an Inspector or Regional Inspector as a result of his travel restrictions. 152 As part of a rotation plan the applicant was required to change work location from the respondent's Head Office at Gosford and now work from the respondent's office located at Parramatta. That requirement to change work location was made on February 2002. Since July 1999 the applicant had not worked either on a full time basis or without a travel restriction. At the time of the required work location move, the applicant was on a medical travel restriction, being only allowed to be located in Sydney two days a week. 153 The respondent's witnesses stated that they believed it was necessary for the applicant holding the position of Regional Inspector to be relocated in Parramatta full time. The applicant believed it was not necessary for him to be located in Sydney full time to carry out his job. When there are 45 Inspectors in the Construction Team and 43 are located in the Sydney/Parramatta offices, and there are 2 in the Gosford office I understand and accept that the requirement of the respondent to have a Regional Inspector located in their Parramatta office was both logical and understandable. I accept the evidence from the respondent's witnesses that it was necessary for the Regional Inspector to be physically located at Parramatta. That was where the action was, the location of the overwhelming bulk of the Inspectors and where the Regional Inspector could work and be far more beneficial to the respondent. I find that the requirement for the Regional Inspector to be relocated from Gosford to Parramatta was appropriate. 154 As stated before at the time of the request the applicant was working under a medical restriction. He objected to the transfer on that basis. Mr. Hatcher stated that there was unfairness in being required to transfer contrary to the medical restrictions. I would accept such a claim if the applicant was terminated at that point without any opportunity to respond and without the respondent investigating any alternative options. But he was not terminated at that point nor did he transfer. Over the next ten months he and the respondent met on four separate occasions in an endeavour to find a solution satisfactory to both parties. The respondent's witnesses stated that various options were offered to the applicant but were rejected. The applicant wished to carry out his fitness regime at Terrigal Beach prior to work. It was accepted by the applicant that his training programme could have been carried out in the parks and pools at Parramatta but believed that would make for too long a day. It was also accepted by Dr. Earp that his training programme need not be necessarily carried out on Terrigal Beach. 155 The applicant said he had considered moving to Sydney to cut the commuting time but had rejected the idea. He answered the following question in re examination. Q. Tell the Commission why you rejected that idea ? A. For a number of reasons. Financially, family reasons and I did not think it gives you any respite from the issues that you work with every day. 156 In answering questions from the Commission the applicant said: Q. In answering a question, I think it was from Mr. Hatcher ,about the move from Gosford to Parramatta , there were various reasons why you said no and you listed them . You said family was one, cost was another, that is buying in Sydney et cetera ? A. M'mm Q. I thought you said another one was respite from something. Did I mishear something ? Nomchong: That is what he said. Commissioner: I did not quite get what it was a respite from. Q. Is your life at Gosford....? A. Respite from the actual work stresses. Q. In Parramatta ? A. In Parramatta yes. 157 From that evidence one could conclude that the applicant did not wish to work in Parramatta because of its ramifications to him from the actual work. 158 It is my finding that based on the evidence given in cross examination by the applicant, the applicant had ample opportunity to state his case at the various meetings held between himself and the respondent and bring to the respondent's attention whatever evidence he had, to seek to change the mind of the respondent. 159 Mr. Hatcher stated that the respondent had manipulated the HealthQuest process. The applicant had a HealthQuest examination on 21 January 2003. At the time he provided HealthQuest with medical reports, emails and reports. He also stated that "I should not be relocated to Sydney as it may exacerbate my pre-existing condition. The most likely outcome being of no benefit to WorkCover & detrimental to my health." The applicant received a copy of the HealthQuest report dated 29 January 2003 on around that date. The report was expressed under the headings of Background, Assessment, Conclusion and Recommendation. Under the heading of Conclusion Dr. Casolin stated that the applicant suffers from major depression and raises the question of whether he is fit to work at Parramatta ? He noted the added travel of 4 hours per day ,the psychiatrist view of the ramifications of this and the significant risk of the recurrence of his depression. Under the final heading Recommendation he stated: Whilst Mr. Riley is fit to work as a regional Inspector, he would be at increased risk of developing recurrent depression should he be required to travel an additional 4 hours on 3 or more days per week. Please advise whether or not this can be accommodated." 160 On 13 March 2003 the respondent wrote to the applicant and advised that " because we are unable to accommodate your current restrictions you will be referred back to the GMO for re-assessment." The same correspondence advised that the applicant may within 14 days respond in writing to the GMO. Included in the report to the GMO was the applicant's position description. 161 It is accepted as fact that prior to the applicant having the opportunity to respond to Dr. Casolin by 27 March 2003, Dr. Casolin wrote a report dated 24 March 2003. In part that report stated: HealthQuest has now been advised that as an inspector Mr. Riley is required to travel, and his restrictions do not enable him to do this. Mr. Riley is currently working in Gosford, however the Authority has advised that he is not carrying out the requirements of his position as a Regional Inspector which require him to travel and be time flexible. HealthQuest has been informed that there is no other position available. Given this information, it is apparent that Mr. Riley is unfit for the inherent job requirements of an inspector or a Regional Inspector as result of his travel restriction. A certificate to this effect is attached. 162 The alleged manipulation by the respondent was that whilst the applicant had a medical restriction on travel, it was not of a general nature but of a specific nature, that is going to Sydney more than two days a week outside of working hours. The applicant had no travel restrictions beyond the Sydney aspect. The Sydney restriction allowed the applicant to carry out a physical training programme at Terrigal prior to work which was part of his stress relief programme. 163 Mr. Watson from the respondent denied there had been any manipulation and believed that the respondent had followed procedure. The respondent had no control over the actions of HealthQuest. 164 The applicant was asked in cross examination the following. Q. What documents do you say you were given to put in if you had been given the opportunity to do so. Were you going to put in more medical evidence ? A. I wanted to look at all avenues and see what resources were available. Q. So you did not have any idea about what you would have put in because you had not turned your mind to it by then ? A. I actually had considered the information from WorkCover which I thought was relevant. 165 Whilst it was unfortunate that the applicant received Dr. Casolin's report prior to having the opportunity to state his views, I have doubt as to what further information he would have provided that would have altered the final outcome. I have noted the comments expressed in Antonakopoulos v State Bank 91IR 385 which raised the issue of an unfair procedure during the process. Taking into consideration the long history that culminated in the applicant's medical retirement I do not believe that particular lack of opportunity experienced by the applicant was fatal to the process. 166 I am not convinced on the evidence before me , that the respondent sought to and or did manipulate HealthQuest. Both provided documentation to HealthQuest, and HealthQuest in the 29 January 2003 report expressed in my view, in clear terms what both parties positions were. The report of 29 January 2003 stated that: " HealthQuest was informed that alternative Regional Inspectorate positions have been considered, but these positions require similar or more travel. Mr. Riley wrote a submission to HealthQuest ,and in this he indicated that he is able to travel within a normal working day, with the occasional extended day." 167 The applicant took the opportunity to appeal the HealthQuest determination but the appeal was not successful as the appeal was not based on medical grounds. 168 Five months after the HealthQuest final determination the applicant who had been on sick leave was medically retired. 169 It was the respondent's submission that the applicant lacked the integrity and honesty necessary to work in the capacity of a Regional Inspector or Inspector. His actions with respect to Superannuation benefit application and his application for a Personal Firearms Registry were raised as examples. Ms. Nomchong stated that the Superannuation benefit application indicated that the applicant was able to intentionally and deliberately make false and misleading statements when it served his purpose. When I examine the Superannuation benefit application form (Ex. 4), it is my view that it is the two doctors (Earp and Smith ) who gave an opinion on the applicant's medical health, not the applicant. 170 The evidence as to whether the applicant completed the two Personal Fire Arm Licences honestly was in the respondent's submission, to be found in the medical evidence that was before the Commission. It was accepted by Mr. Hatcher that during the 12 month periods prior to the applications being completed Dr. Earp had prescribed at least one antidepressant medication to the applicant. Mr. Hatcher stated that this would not be sufficient evidence for the Commission to be satisfied that the applicant was being treated for a currently existing mental or nervous disorder. The test for such proof as expressed in Brigginshaw and Brigginshaw was not met by the respondent. I am in agreement with the submission of Mr. Hatcher as I am not satisfied based on the medical evidence before me, that the applicant knowingly falsified the two applications. 171 I should also note that during his long period of employment with the respondent there was no history of the applicant's integrity or honesty ever being raised or questioned. I therefore make no adverse finding concerning the integrity or honesty of the applicant. A submission was also made by Ms. Nomchong with respect to concerns the respondent held as a consequence of the contents of medical reports and notes that became evidence in this matter that went to the applicant's negative and aggressive thoughts towards the respondent's management. I accept the submissions of Mr. Hatcher that comments made by the applicant to his treating doctors some time ago were only that, comments. There was no medical evidence brought before the Commission that stated that the applicant, because of his state of mind, represented a danger to other people. 172 In summary the respondent had a requirement for the applicant's position to be rotated to Parramatta. I have found that such a requirement was logical based on the needs of the respondent. The applicant had for a considerable period of time been working in accordance with a medical restriction. The applicant had been subjected to a return to work programme. The applicant due to medical restrictions, based on travel did not accept the transfer. I do not believe at that point there was an obligation for the respondent to create an alternative position or displace another employee from his or her position in order to make a position available to the applicant. Alternative employment was considered but not available. The applicant was medically examined and was medically retired. 173 Taking into consideration all the evidence that came before this Commission I have not been persuaded that the termination of Peter Riley was harsh, unreasonable or unjust. It is therefore my finding that the Commission should not intervene in IRC Matter no. 2003/5317. 174 I now turn to IRC Matter no. 2003/6979. This application was accompanied by a medical certificate dated 10 November 2003 signed by the applicant's doctor Dr. Barry Earp. The medical certificate stated : Mr. Riley has been my patient for over 4 years. I am quite familiar with his physical and psychological state, and the impact his work and travel have had on his health. I have also read a copy of a WorkCover document giving a position description for a Regional inspector. In relation to these issues , I would make the following statements: "1] He is fit to commute to Sydney no more than 2 (two) days a week on a permanent basis. That is, he should not be required to commute more than an average of 2 hours each way, on no more than 2 days a week on a monthly average. He is able to cope with some flexibility, with increases in some weeks to be matched by decreases in other weeks. 2] He is fit and able to perform all of the inherent duties of a regional Inspector, including the travel component incurred performing these duties. 3] He is capable of performing investigation of a fatality provided the deceased is removed prior to investigation. 4] I regard the above conditions as permanent . 175 Also attached was a letter from the applicant dated 18 November 2003 applying for his previous position of Regional Inspector based at Gosford or alternatively to another suitable position of a kind eg. (but not limited to ) District Coordinator Lismore, subject to the recommendations contained in the attached medical certificate are implemented. Mr. Hatcher for the applicant also stated that a position as an Inspector based at Gosford would be acceptable with back pay. 176 S. 92(3) of the Act states: The employee must produce to the employer a certificate given by a medical practitioner to the effect that the employee is fit for employment of the kind for which the employee applies for reinstatement. 177 In submissions Ms. Nomchong stated that the Commission could not rely on the medical certificate attached to the application because the Commission could not be satisfied that it is a medical certificate which represented a true basis of what this applicant's medical status is. The applicant had written it out word for word and Dr. Earp had it typed up and signed it. 178 The medical opinion given by Dr. Earp in August 2003 was in marked contrast to the medical certificate attached to this application. This I made comment about during the proceedings. Dr. Earp admitted that the August 2003 medical opinion was a false statement. 179 It was Mr. Hatcher's submission that if the Commission had some concern about Dr. Earp, then the Commission could rely on the other medical evidence that was before the Commission. 180 Ms. Nomchong responded by stating that s.92(3) required the applicant to produce to the employer a certificate given by a medical practitioner to the effect that the employee was fit for the employment of a kind which the employee applied for reinstatement. The applicant was bound by the medical certificate that was put in. The applicant was not able, at a later stage, to tender other medical evidence and require the Commission to then consider this evidence. 181 Section 92 of the Act covers the Application To Employer For Reinstatement Of Dismissed Injured Employee. It is the section that expresses the process for commencement of such an application. It is the medical certificate that the applicant provides that forms the foundation of his application. I note in Cansino v South Western Sydney Health 130IR1 at14 it states: (19) Section 94 (3) creates two further alternative bases for the exercise of discretion, but in either case the Commission is required to find that the employee is fit for the alternative employment which is the subject of the order. Again, fitness would appropriately be determined by reference to relevant medical evidence. 182 In my view the relevant medical evidence is not only the medical evidence that commenced the proceedings but any other medical evidence that becomes available. Applicants may file for reinstatement up to 2 years after termination. In 2 years a persons health can change. 183 It is my finding that I am not bound by the medical certificate that commenced these proceedings. I do believe that the legislation allows the Commission to consider any other relevant medical reports. 184 In this application the applicant had sought that he be reinstated to his former position of Regional Inspector based at Gosford. The medical certificate, dated 10 November 2003 attached to this application did not allow the applicant to be located in Sydney on a full time basis. The medical report of Dr. Oldtree Clark, dated March 1 2004 supported that opinion. The medical report of Dr. Lewin dated 31 October 2003 stated that the applicant was fit without restriction. Medical reports from Drs. Parmegiani in 2001,Moorthy in 1999 and Lee in 2000 all recommended that the applicant not return to Sydney. 185 I have already found in matter no. 5317 of 2003 that the position of Regional Inspector was rotated to Parramatta for good logical reason and I therefore do not believe it appropriate to now order the respondent to reverse this action to satisfy the applicant. The position of Regional Inspector is now located at Parramatta. 186 The onus is on the applicant to satisfy the Commission that he is fit for employment of the kind for which the employee applied. I have not been satisfied and therefore I decline under s. 94(1) to make an order reinstating the applicant to the position of Regional Inspector based at Gosford. 187 In accordance with s. 92 (2) the applicant sought as an alternative, in being reinstated to other appropriate positions being District Coordinator Lismore or Inspector based at Gosford. 188 The medical certificate dated 10 November 2003 (Dr Earp) centred on the applicant's specific fitness with respect to the position of Regional Inspector and was silent with respect to fitness for any other position. The medical certificate dated 31 October 2003 (Dr. Lewin) stated the applicant was fully fit and had fully recovered. The medical certificate of March 1 2004 (Dr. Oldtree Clark) again only centred on the role of a Regional Inspector, stated that the applicant could carry out the full duties of a Regional Inspector without restrictions but only in his home region. Travel restrictions would apply if the applicant had to travel more than three hours per day in his own time. 189 Prior to the making of a decision in this matter I must be satisfied in accordance with s.92(3) that the applicant "is fit for employment of the kind for which the employee applies for reinstatement. " The onus is on the applicant to prove that fitness. I note that the HealthQuest determination of 24 March 2003 that medically retired the applicant stated " that Mr. Riley is unfit for the full inherent requirements of an inspector or Regional Inspector as a result of his travel restrictions." If I accept the medical evidence of Dr. Lewin that the applicant is fit to carry out either of the two positions I must then consider whether the respondent has that kind of employment available. As noted previously the applicant and respondent met in February 2004 and investigated the situation of alternative positions without success. Evidence from the respondent showed that there were two Inspectors positions based at Gosford. These two positions were part of the metropolitan group and therefore were subject to rotation with Sydney/Parramatta. The applicant would therefore be subject to rotation. There were no vacancies in these positions at the time of the hearing. With respect to the position of District Coordinator Lismore the applicant had previously applied for this position but had been unsuccessful. 190 It was the submission of Ms. Nomchong that the onus lay with the applicant to prove that there is an available position. I note the comments made in Cansino v South Western Sydney Health 130IR 1 at page 13 which stated : (18) The provisions of s.94(3) raises questions as to who bears the onus of establishing whether the employer has employment of the kind so specified in s. 94(2) available. Given the nature of the orders which may be made under s. 94(2) and the resultant burden of any order under s. 94(3) being on the employer, it would seem logical that such onus should fall on the employer. 191 Witnesses for the respondent stated that prior to medical retirement that alternative positions were investigated but no employment was available with duties consistent with those to which the applicant was restricted. Mr. Watson for the respondent stated that he was unaware of any vacant Inspector's position at Gosford. As I have noted previously there were only two Inspector positions at Gosford. It is my finding that the respondent had discharged their onus with respect to the availability of an alternative position. I also do not believe that the respondent is obliged to create a new position to accommodate the applicant where a suitable position in accord with any medical restrictions does not exist. 192 As a consequence I dismiss the application made on behalf of the applicant. Matter no. 6979 of 2003 is therefore concluded. D.RITCHIE COMMISSIONER 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.