Industrial Relations Commission of New South Wales CITATION: Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Ltd (No 4) [2010] NSWIRComm 120 PARTIES: Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) (Applicant) Lindsay Brothers Management Pty Ltd (Respondent) FILE NUMBER(S): IRC 27 of 2008 CORAM: Boland J President CATCHWORDS: INJURED WORKER - Reinstatement - Section 242 of Workers Compensation Act 1987 - Transport industry - Compensation for time spent on part time instead of full time hours - Whether worker was fit for full time work - Whether full time work was available - Compensation awarded - Discount for Workers Compensation payments - Discount for earnings from other sources LEGISLATION CITED: Workers Compensation Act 1987 Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355; (1999) 130 IR 1 Riley v WorkCover Authority (NSW) [2006] NSWIRComm 108; (2006) 151 IR 396 Sydney Ferries Corp v Seamen's Union of Australia, NSW Branch on behalf of Levy [2009] NSWIRComm 126; (2009) 186 IR 99 CASES CITED: Thomas Lawson v Lindsay Brothers Management Pty Ltd [2009] AIRC 282 Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Limited [2008] NSWIRComm 157 Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Bros Management (No 2) [2008] NSWIRComm 185 Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Ltd (No 3) [2010] NSWIRComm 60 HEARING DATES: 29 July 2010 DATE OF JUDGMENT: 26 August 2010 Mr O Fagir, Industrial Officer (Applicant) Transport Workers' Union of New South Wales LEGAL REPRESENTATIVES: Mr A P Joseph of counsel (Respondent) BCI Lawyers JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BOLAND J, President Thursday 26 August 2010 Matter No IRC 27 of 2008 TRANSPORT WORKERS' UNION OF NEW SOUTH WALES (ON BEHALF OF THOMAS LAWSON) AND LINDSAY BROTHERS MANAGEMENT PTY LTD Application by Transport Workers' Union of New South Wales on behalf of its member Thomas Lawson for reinstatement of an injured employee pursuant to section 242 of the Workers Compensation Act 1987 DECISION [2010] NSWIRComm 120 1 This matter relates to an application made by the Transport Workers' Union of New South Wales ('the TWU') pursuant to s 242 of the Workers Compensation Act 1987 for the reinstatement of its member, Thomas Lawson, to the multi-function position of local pick-up and delivery driver and trainer. Mr Lawson's employment had been terminated by his employer, Lindsay Brothers Management Pty Limited, on 5 December 2007, for the reason that the respondent did not have suitable duties for Mr Lawson to perform because of his medical restrictions. Mr Lawson had been on restricted duties following a rotator cuff shoulder injury he sustained at work in 2001. 2 The application was the subject of earlier proceedings before the Commission: Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Limited [2008] NSWIRComm 157 ('the first decision'); Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Bros Management (No 2) [2008] NSWIRComm 185 ('the second decision'); and Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Ltd (No 3) [2010] NSWIRComm 60 ('the third decision'). 3 In the first decision the Commission found that the respondent could reasonably make available for Mr Lawson part time employment as a driver trainer/pick-up and delivery driver that may involve the training of drivers, the dropping off and picking up of trailers that required no lifting, deliveries to sites where no lifting was required and other work that required no lifting. 4 Whilst the Commission was satisfied that work could be made available to Mr Lawson, it was not satisfied about whether there was full time work available for Mr Lawson to perform in a combination that catered for his medical restrictions or whether reinstatement should have been to a part time position and, if so, what should be the appropriate part time hours of work. The parties were directed to confer as to the basis of Mr Lawson's reinstatement having regard to the terms of the first decision. 5 The parties reported to the Commission on 15 September 2008, and advised that they were unable to provide the Commission with any firm basis upon which it could make final orders. In its second decision the Commission indicated that it was most concerned to avoid placing Mr Lawson in a position that would aggravate or cause a recurrence of his injuries. Accordingly, the Commission adopted a 'cautious approach' by reinstating Mr Lawson to part time employment as a driver, but subject to his medical restrictions. The weekly hours of work for Mr Lawson were set at 25. The Commission stated at [10]: [10] ... This arrangement shall apply for one month from the date of this decision. During that time the parties shall meet for the purpose of making a detailed assessment of whether there is productive, full time employment available to Mr Lawson within his medical limitations. That may involve the engagement of an independent assessor agreed on by the parties if they jointly consider that is an appropriate course. The parties will report the outcome of their assessment to the Commission at 9.30 am on Wednesday 5 November 2008 6 The Commission also determined that Mr Lawson should be paid for the period he had been dismissed on the following basis: [11] Pursuant to s 243(4) of the Workers Compensation Act the Commission proposes to order that for the period from the date of his dismissal, namely, 6 December 2007 to April 2008 (the date in April does not appear to be in evidence) when Mr Lawson had another shoulder operation, the respondent shall pay to Mr Lawson an amount equivalent to what he would have earned if he had been paid at the rate of his ordinary weekly rate of pay for 25 hours per week of work for the period, less any amount Mr Lawson received by way of income from any other source of employment. In this regard, I note that the medical restrictions on Mr Lawson for the period 3 December 2007 to 3 March 2008 were "no lifting, limited driving on occasional basis only, instruction of drivers, supervision". I presume those restrictions would have remained in place up to the time Mr Lawson underwent the further operation on his left shoulder in April. No payment (other than workers compensation if applicable) shall be made for the period between the date in April 2008, when Mr Lawson would not have been available to work because of his left shoulder operation, and 7 July 2008, which is the date Dr Lawson certified that Mr Lawson was fit to return to work after his operation. From 7 July 2008 to 6 October 2008, Mr Lawson shall be paid an amount equivalent to what he would have earned if he had been paid at the rate of his ordinary weekly rate of pay for 25 hours work per week for the period, less any amount Mr Lawson received by way of income from any other source of employment. The parties may agree to any adjustments to these periods where the evidence that the Commission has relied upon is deficient. 7 The Commission made orders at [12]: [12] The Commission makes the following orders: 1. Lindsay Brothers Management Pty Limited shall reinstate Thomas Lawson to part time employment as a driver on and from 6 October 2008, subject to the restrictions imposed by the WorkCover NSW Medical Certificate dated 20 September 2008 and signed by Dr G Anderson. The weekly hours of work for Mr Lawson shall be 25. 2. On or after 6 October 2008 Lindsay Brothers Management Pty Limited shall meet with the Transport Workers' Union of New South Wales for the purpose of making a detailed assessment of whether there is productive, full time employment available to Mr Lawson within his medical limitations. That may involve the engagement of an independent assessor agreed on by the parties if they jointly consider that is an appropriate course. The parties will report the outcome of their assessment to the Commission at 9.30 am on Wednesday 5 November 2008. 3. For the period from the date of his dismissal, namely, 6 December 2007 to the relevant date in April 2008, Lindsay Brothers Management Pty Limited shall pay to Mr Lawson an amount equivalent to what he would have earned if he had been paid at the rate of his ordinary weekly rate of pay for 25 hours of work per week for the period, less any amount Mr Lawson received by way of income from any other source of employment. No payment (other than workers compensation if applicable) shall be made for the period from the relevant date in April to 7 July 2008. From 7 July 2008 to 6 October 2008, Mr Lawson shall be paid an amount equivalent to what he would have earned if he had been paid at the rate of his ordinary weekly rate of pay for 25 hours per week of work, less any amount Mr Lawson received by way of income from any other source of employment. 4. The Transport Workers' Union of New South Wales, following consultation with Lindsay Brothers Management Pty Limited, shall, within fourteen days, file and serve short minutes of order reflecting the foregoing orders. The short minutes shall identify the amounts of money to be paid to Mr Lawson. 8 In its third decision, given on 13 May 2010, the Commission noted that there had been some intervening issues between Mr Lawson and his employer that were not the subject of proceedings before this Commission and nothing was done pursuant to order 2 of the second decision until the latter part of 2009. Subsequently, the Commission learned that earlier this year (2010) the respondent employed Mr Lawson on a full time basis. 9 However, it was also noted in the third decision that the TWU, on behalf of Mr Lawson, had sought an order for compensation under s 243(4) of the Workers Compensation Act for lost remuneration during the period between dismissal and reinstatement by the employer: [10] ... That is to say, compensation is sought for the period during which Mr Lawson had been dismissed on the basis of what he would have been paid if he had not been dismissed. As I understand the submission, compensation is sought from 6 December 2007 to the date when the respondent decided, of its own accord, to reinstate Mr Lawson in full time employment, less any income received during that period, presumably. [11] The respondent opposes such an order. … 10 The Commission decided in relation to this latest claim that, for the reasons given in the third decision, Mr Lawson should be given the opportunity of pursuing a claim for lost remuneration for the period 7 October 2008 to the date of his reinstatement by the respondent in 2010. 11 The Commission made the following directions (at [44]): (1) The applicant is given liberty to apply, on 14 days' notice, of his intention to pursue the claim for compensation for the period 7 October 2008 to the date of his reinstatement by the respondent in 2010. The applicant is to file and serve precise details of what is claimed by way of compensation. (2) Subject to notice having been given of an intention to pursue the claim, the applicant is to file and serve any evidence he intends to rely on within 21 days of the date of this decision. The respondent shall have a further 21 days to file and serve any evidence in reply. (3) The matter is listed for further directions at 9.30am on Friday 2 July 2010. (4) Any failure by the applicant to comply with the directions will require him to show cause why the application should not be dismissed. 12 Consequently, the TWU on behalf of Mr Lawson made an application for compensation of $50,652 for the relevant period from 7 October 2008 to 1 March 2010 (being 72 weeks). The claimed amount was calculated as follows: 1. Mr Lawson's pre-dismissal average weekly earnings were $1,238. 2. Mr Lawson's wage for 25 hours per week was 25 x $21.38 = $534.50. 3. Mr Lawson's per-week loss was, therefore, $703.50. 4. The amount Mr Lawson would have received over the period 7 October 2008 to 1 March 2010 (72 weeks) had he not been dismissed is $50,652. ... Evidence 13 Mr Lawson submitted a statement attesting to the following: 1. The applicant's medical condition has been stable since at least September 2008, when the first Konekt report was made outlining his condition. The second report of Dr Michael Burns (dated 16 January 2010) demonstrates that the work he can perform has remained unchanged. 2. The applicant is unable to operate a taut liner vehicle due to his medical restrictions. 3. The applicant is unable to operate certain "cab-over" prime movers due to his medical restrictions. This problem has existed since he started work with Lindsay Brothers, and in his employment with the company he has never driven cab-over prime movers. 4. The applicant can operate "pantech" trailers without difficulty for deliveries where loading is carried out by forklift or electronic pallet jack. 5. A majority of Lindsay Brothers' deliveries fall within the applicant's capabilities, that is, a majority are carried out in pantechs and do not involve manual loading. 6. The applicant listed a number of examples of deliveries he can perform that require no manual handling, and unloading within his medical restrictions. 6.1. GHPL Smeaton Grange 6.2. GHPL Eastern Creek 6.3. Woolworths at Warnervale ("W/W Wyong" on the run sheet) 6.4. Woolworths Prospect: ("Toll Prospect" on the run sheet) 6.5. Chippies Marrickville 6.6. Chippies Penrith 6.7. IGA Silverwater 6.8. Arncliffe Freezers 6.9. Swires 6.10. Bidvest Homebush 6.11. Franklins at Girraween 6.12. Fresh Produce Group at Sydney Markets 6.13. City deliveries 7. The 'run sheets' annexed to the applicant's statement detail client deliveries, many of which have been with Lindsay for a number of years. 8. The applicant named two contracts Lindsay had prior to October 2008 that were lost in the last few years, that he would have been able to perform in the relevant period. Simplot, for example, was a run over the mountains to Bathurst in a pantech, which did not involve any manual loading. The run took eight hours and was done five days a week. At the time of termination in 2007 Mr Lawson was performing that run every day and could have continued to do that run every day. 9. The applicant claimed there was other work available to him within the relevant period. The applicant has a forklift license and could have operated a forklift without difficulties. The applicant could have performed weekend changeovers to Tarcutta. 10. The applicant has been working roughly the same hours as he was in 2007 being full time hours plus overtime. 11. The applicant has done some driver training since his reinstatement. 14 Mr Lawson's oral evidence was to the following effect: 1. In the Sydney depot the respondent has 'two cab-over Kenworths and three conventional cabs, that is, two out of five.' 2. The ratio of pantech trucks to tautliners was about 75 per cent pantech to 25 per cent tautliners. 3. He has held a forklift licence since 1972. 4. He worked other jobs in the period October 2008 to March 2010. These jobs were all paid by EFT and were attested in the bank records provided by him. 5. He took leave while employed, which meant that he was not working overtime in every week and could not claim compensation that included overtime for every week. 6. He had been allocated a specific prime mover since his reinstatement, but if this were unavailable he would take another truck. 7. He could not drive Kenworth cab-over trucks. 8. He was not permitted to drive tautliners by the respondent, but he felt he could operate some of those vehicles. 9. He was able to operate refrigerated loads, and they were delivered in pantechs with conventional cabs. 10. He agreed there had been a significant increase in refrigerated work over the past six months from a contract with Swire from Queensland. 11. He had volunteered for CML deliveries, but had not been chosen to do them. CML deliveries were traditionally done in tautliners, which the respondent would not allow him to use. 12. Regarding the list of deliveries in his statement, Mr Lawson contended that some required no manual handling, whilst others required the moving of boards and bars. Both types were within his medical restrictions: A. There might be some handling moving the boards and the bars but I will replace that. At Eastern Creek you aren't allowed out of the truck, Warnervale you move boards and bars, Chippies Marrickville you move boards and bars, Penrith is the same, Silverwater you don't go on the back of the truck, Arncliffe Freezers there are boards and bars, Swires. Q. When you do, for example, city deliveries, you have listed city deliveries there, would that, for example, I mean, a lot of those deliveries would be front shop deliveries, would they not? A. No. Q. None of them. In terms of operating a forklift, would you agree with me even with a forklift, well, if you have operated a forklift for a long period of time would you agree with me that forklift drivers generally need to also be able to do some manual handling in the performance of their duties? A. If they call putting boards and bars up, yes, other duties, no. Q. Readjusting loads or nothing of that nature that you would concede? A. Readjustment of loads is not manual labour. 13. Regarding the distances travelled, the furthest in terms of distance was about an hour and a half from Sydney to Tahmoor, Smeaton Grange and Wyong. This was because longer distance drivers must be able to change tires, which Mr Lawson cannot do. 14. The applicant had undertaken driver training once in 2010. 15 For the respondent, a statement was submitted from Ms Melissa Strong, Human Resources Manager, essentially detailing the hourly rate of pay for Mr Lawson at the time of dismissal ($19.93 per hour) and the total workers compensation payments made in the period 7 October 2008 to 1 March 2010 ($19,490.98). The information regarding these payments had been obtained from the respondent's insurer. 16 Ms Strong's oral evidence was, relevantly, that: 1. The respondent took into account the medical report of Dr Burns in January 2010 when deciding to reinstate Mr Lawson to full time hours. 2. The report of Dr Burns was to be distinguished from Konekt's report on the basis that it went into greater detail, and Dr Burns was an independent physician agreed to by both parties. 3. Other factors considered in deciding to reinstate Mr Lawson were the resolution of issues from a business perspective and the costs associated with the matter going further into industrial proceedings. 17 The respondent submitted a statement from Sydney Depot Manager, Mr Craig Duncan, in response to the statement of Mr Lawson. Mr Duncan stated: 1. Seventy per cent of the fleet were cab-over trucks that Mr Lawson could not access because of his medical restrictions. The number of bonnet trucks has been significantly reduced since December 2007. The majority of the fleet are now cab-over trucks. 2. Sixty per cent of the fleet trailers were pantechs and 40 per cent tautliners on any given day in Sydney. 3. Mr Lawson could not work with tautliners, as they required a driver to be able to pull the curtains and use the restraints, which hold the loads in place. This was beyond Mr Lawson's medical restrictions. 4. In December 2007, a majority of work at the Sydney depot was carrying refrigerated loads. The respondent used pantechs to perform this work. The majority of the fleet in December 2007 were pantechs. This had changed significantly then due to the loss of a number of contracts. Since December 2007, the work lost by the respondent had been gradually replaced by delivery work for customers such as Woolworths and Coles Myer. Coles Myer now constitutes the major part of the respondent's workload in Sydney. Tautliners are used for Coles Myer work. 5. The site's listed in Mr Lawson's statement were sites, which have delivery bays, and, accordingly, pantechs can be used to deliver to these sites. However, the use of pantechs to these sites does not necessarily mean that there is no manual work involved. For instance, it is often the case that the customer may require other deliveries to and from those particular sites (in the same run), which do not have delivery bays. Accordingly, the driver will have to assist in the loading or unloading at those sites. Deliveries to those sites do require manual handling. This is because of the way a truck's van (including a pantech) is loaded. In order to stop the load moving during transit, drivers are required to use devices such as sheets of ply, pogo sticks and spring loaded bars. They are also used to separate the loads inside the van. These devices can be quite difficult to use. 6. The respondent lost the Cadburys NSW contract four years ago. Simplot Bathurst was lost two years ago. This work has been substituted significantly by the Coles Myer work. Mr Lawson was only performing the Bathurst run three days out of five prior to his dismissal in December 2007. That contract was lost soon after Mr Lawson was dismissed and has not been replaced with similar work. The amount of Coles Myer deliveries since December 2007 has increased significantly. It is now the majority of Sydney Depot's work. Mr Lawson cannot perform this work because of his restrictions. 7. A forklift operator is usually required to engage in manual loading and unloading in association with the operation of the forklift. This work is not available to Mr Lawson because of his medical restrictions. 8. The respondent avoids offering Mr Lawson long distance runs because he cannot physically change the tyre on a truck, which long distance drivers must do. Mr Lawson does only 'Metro' runs (local Sydney). 9. A driver's 'run' (i.e. where they are delivering goods, what sites they may stop to load/unload along the way, the number of sites they have to stop at, what goods they will be delivering and what truck they will be using) is usually only determined 12 hours before the run is actually done. Customers usually give only 24 hours' notice of their requirements. This requires the respondent's operations to be extremely flexible. For this reason, drivers need to be able to drive a great variety of trucks and be able to perform a number of manual tasks including loading/unloading, and the manoeuvring of ply sheets and spring loaded bars. 10. Special runs are 'saved' for Mr Lawson to suit his medical restrictions. He is the only driver who performs such runs. The runs are designed so that he can use a bonnet truck with trailer. Mr Lawson further cannot perform deliveries, which require a driver to assist in loading or unloading. 11. Drivers do not get assigned a designated truck as each truck is consistently being used for a variety of purposes and may travel all over Queensland, New South Wales, Victoria and South Australia. It is difficult to assign a bonnet pantech truck to Mr Lawson all of the time, as one may not be available because it is not in Sydney or it has broken down or is being serviced. 12. The number of bonnet trucks in the fleet has been significantly decreasing since December 2007. The reality of the Sydney depot is that the significant work that use to be performed in refrigerated transport (where pantechs were commonly used) has been replaced with 'dry' goods (which predominately require the use of taut liners). 13. During the period of time when Mr Lawson was working 25 hours per week, work was organised specifically for him as a separate exercise to the normal rostering arrangements. 14. During this period, the respondent took the view that given Mr Lawson's previous history of injuries at the workplace, the respondent should take a conservative approach to the tasks he should do to ensure his health and safety at work. 18 In his oral evidence Mr Duncan stated: 1. He was Mr Lawson's immediate manager working alongside the local allocatur to direct Mr Lawson in his work. He directed Mr Lawson to work only within his medical restrictions. 2. Drivers may not have the same truck all of the time, but will usually be assigned a truck for a period of up to a few months. They will drive other vehicles where their own truck is unavailable for operational reasons. 3. In relation to the 'local fleet' (Sydney CBD) the ratio of cab-over prime movers versus bonnet prime movers was about 70/30. In relation to the ratio of pantech versus taut line trailers it is about 60 percent pantechs to 40 percent tautliners 4. There has been some change in the nature of work due to new truck and delivery technologies. There is less use of manual pallet jacks now than there has been in the past. In tautliners, the curtains nowadays are a lot more user-friendly than they used to be. 5. There were increasing numbers of customers using delivery docks where drivers were not heavily involved in unloading, particularly in refrigerated work. 6. In relation to Simplot, it was never a guaranteed five days a week run, but based on customer demand. Submissions 19 Mr O Fagir, for the TWU, submitted: 1. Mr Lawson has adequately explained how and why he is able to perform certain tasks at work and certain driving runs consistently over the period in question. 2. There are many client runs Mr Lawson can perform which have not changed over the years. Even work which has since been lost would have comprised much of his full time work had he been fully employed in the relevant period. 3. While drivers are not assigned a designated truck, drivers tend to use the same truck. 4. Mr Lawson's work capacity has not changed in recent years, as there was no change in his medical restrictions between the Konekt report and Dr Burns' report. Mr Lawson's condition and restrictions did not improve between the two reports, and reinstatement. 5. The existence of full time work plus overtime at present is clear as Mr Lawson is performing this work. Mr Lawson's employment records demonstrate the existence of full time work and overtime prior to his termination in December 2007. By inference from the consistency of client runs through the intervening period, there was the same amount of work available to Mr Lawson through that time as there was before and after it. 6. Workers compensation payments to Mr Lawson should not be discounted, as they are not remuneration. This would be allowing a windfall for the respondent at the expense of the workers compensation scheme. Rather, Mr Lawson might repay some of those payments to the insurer if no discount is applied. 7. Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355; (1999) 130 IR 1 is authority for the proposition that the employer bears the onus as to whether it has employment of the kind to which reinstatement is sought. 8. Mr Lawson has listed the runs he can perform, which he did perform before 2008 and which he now performs. In the absence of contradiction he has proven the availability of work. 20 Mr A Joseph of counsel submitted on behalf of the respondent: 1. The applicant did not establish the availability of full time work plus overtime between October 2008 and March 2010 and such work was not available. Reasons for that include: Mr Lawson was unable to use many of the company vehicles; he was unable to perform many of the manual tasks required of drivers; he was unable to drive outside a certain range; longer range country work and interstate work was not available to Mr Lawson; and that there has been a reduction in the available work within Mr Lawson's restrictions with the loss of refrigerated load clients. 2. Section 243(4) of the Workers Compensation Act provides that the Commission may order payment to the worker that does not exceed the remuneration the worker would, but for being dismissed, have received after making the application to the employer for reinstatement (which was in December 2007) and before being reinstated in accordance with the order of the Commission (October 2008). The Commission is confined by the words in this section. 3. The application is deficient, as no formal application has been made for an order for reinstatement. Accordingly, the applicant has failed to provide any compelling case that there would be a date from which the Commission would have exercised its discretionary powers to make an order that the employer reinstate. The Commission is being asked to make an actual finding that from a particular point in time there was, in effect, full time work, including overtime, available to Mr Lawson within his restrictions. It is not enough to say Mr Lawson was working a certain number of hours before December 2007 and he has worked a certain number of hours now, therefore that same amount of work must have been available to him in the middle. That does not meet the onus of establishing the availability of full time work. 4. Riley v WorkCover Authority (NSW) [2006] NSWIRComm 108; (2006) 151 IR 396 is authority for the proposition that an employer should not have to reorganise or go to unreasonable lengths to reorganise its workforce to create available work. The respondent does so in arranging work for Mr Lawson. 5. The available refrigerated work has increased in the last six months only, creating greater work for Mr Lawson at present than was available in the relevant period. 6. Mr Lawson's workplace situation in December 2007 was documented in the first and second decisions where the Commission was not prepared to reinstate him on a full time basis based on the Konekt (non-medical) report. Mr Lawson had full time work plus overtime at the time within the Konekt restrictions, not necessarily within the medical restrictions imposed by Dr Burns this year. In December 2007, the Commission was disinclined to make a finding of 25 hours work being available, as no independent medical evidence was available. Mr Lawson cannot, therefore, rely on this report so wholeheartedly. 7. In relation to the amount claimed, it was Ms Strong's evidence that nearly $20,000 in workers compensation payments were made by Gallagher Bassett, the workers compensation insurer. The vast majority of those payments were made under s 40 of the Act. It was submitted: The point to be made is this; the section that your Honour is dealing with s 243(4) in terms of making compensation is in the same Act. It would be an extraordinary proposition, for the Commission not to fully discount those payments that Mr Lawson has received from workers' compensation, or for the purpose of workers compensation, when considering the amount that would be ordered here. This is not about providing the respondent, I think it was described as a windfall or something like that; I don't think that is relevant in this case. Surely the provisions here are to get an injured worker back to work and to put that person, subject to the sorts of matters we are dealing with here, in a position he would have otherwise been in. Surely other payments received in respect of the same injury made under the same piece of legislation must be taken into account in full. The fact those payments are not being made directly by the respondent is of no relevance. 8. Full discount should be made in relation to the amounts earned by Mr Lawson whilst he was working for other employers during the relevant period. 9. Any amount payable to Mr Lawson should be discounted in accordance with Sydney Ferries Corp v Seamen's Union of Australia, NSW Branch on behalf of Levy [2009] NSWIRComm 126; (2009) 186 IR 99 for the period between 10 October 2008 and 22 June 2009, which is the period during which Mr Lawson had been dismissed from his employment for misconduct (see [31] of the third decision). 10. The average weekly wage of $1,238 in the claim is presumably a gross figure, which has factored in overtime, which would not have been performed on a number of days where Mr Lawson was on leave or absent. A discount should be provided on this basis. 11. There should be a discount for the period between 7 October 2008 and 5 November 2008. In this respect, it was submitted: Your Honour will see at para 12 where you made orders, order No. 2 was on or after 6 October there is to be a meeting between the parties, and the engagement of an independent assessor agreed on by the parties if they jointly considered that an appropriate course. And then there was going to be a report back to the Commission on 5 November 2008. Here, compensation has been sought from October 2008. Again without being able to define what might have happened, had the issue of Mr Lawson's conduct and his termination not taken place, it seems unlikely in my submission that the Commission would have made an order for reinstatement in those circumstances without firstly having heard from the parties and any independent assessment. Consideration 21 Mr Joseph contended that as no order for reinstatement had been made that would allow the Commission to make any compensatory order covering the relevant period, the Commission was precluded from making such an order: s 243(4) of the Workers Compensation Act. 22 Pursuant to the second decision, Mr Lawson was reinstated: [T]o part time employment as a driver on and from 6 October 2008, subject to the restrictions imposed by the WorkCover NSW Medical Certificate dated 20 September 2008 and signed by Dr G Anderson. The weekly hours of work for Mr Lawson shall be 25. 23 In its second decision the Commission reserved for later consideration whether there was 'productive, full time employment available to Mr Lawson within his medical limitations.' For the reasons that have been explained, any decision in that respect was overtaken by other events and in March 2010 the respondent, of its own accord, reinstated Mr Lawson in full time employment. 24 There can be no doubt, however, that the issue of whether Mr Lawson should be reinstated to full time, as distinct from part time, employment as a driver from 6 October 2008 remains extant. Accordingly, if in the period 6 October 2008 to 1 March 2010, it is found that Mr Lawson was fit for full time work within his medical restrictions and within that period there was full time work available for Mr Lawson, I am unable to see any impediment to ordering reinstatement from 6 October 2008 followed by an order for compensation as provided by s 243(4) of the Workers Compensation Act. 25 In respect of the question of Mr Lawson's fitness for full time work, the respondent, by reinstating Mr Lawson to full time work in March 2010, accepted, from that date, he was fit for such work. The decision to reinstate Mr Lawson was based on two factors that I have mentioned, one of them being the report of Dr Burns. Dr Burns concluded in January 2010 that Mr Lawson could work up to normal hours in suitable work, within his restrictions, if that work was available. The restrictions, which had been determined by Dr Anderson, Mr Lawson's general practitioner, were as follows: § No lifting above shoulder height § Metro and Country driving permitted, no Interstate § Breaks as required § Occasionally lifting up to 15 kilograms permitted 26 Dr Burns' opinion regarding Mr Lawson's fitness for full time work did not differ, in any material sense, from the opinion of Dr Anderson given in September 2008 and neither opinion was in any way contradicted by the report following a workplace assessment of Mr Lawson by an occupational therapist with the firm Konekt, also in September 2008. 27 Despite my concerns, expressed in the earlier decisions, to avoid any aggravation of Mr Lawson's condition, it is apparent that there are three medical opinions, given in September 2008 and January 2010, certifying Mr Lawson's fitness for full time work subject to his medical restrictions. The employer has accepted his fitness for full time work. There is no evidence that between October 2008 and March 2010 Mr Lawson's condition deteriorated to the point he was unable, for any part of that period, to perform full time work within his restrictions. 28 I have to conclude, therefore, that between 6 October 2008 and 1 March 2010, Mr Lawson was fit for full time employment, subject to the restrictions imposed by Dr Anderson and confirmed by Dr Burns. 29 That leaves the issue of whether full time hours of work were available within Mr Lawson's restrictions during the relevant period. 30 With regard to the disagreement in the evidence concerning vehicle types in the employer's fleet and the ratio of one type of vehicle to another, I prefer the evidence of Mr Duncan. In his role as fleet manager, Mr Duncan has superior knowledge of these matters and there is no reason to disbelieve his evidence. 31 However, I accept Mr Lawson's evidence that although drivers may not be assigned a particular vehicle, generally a driver will have the same truck, barring some scheduled maintenance or unforeseen urgency. 32 Consequently, I accept that it would not have been unduly burdensome to allocate Mr Lawson one of the 30 per cent bonnet-style prime movers for his regular use between 6 October 2008 and 1 March 2010. I give considerable weight to the fact that in the 11 years prior to October 2008, Mr Lawson had never been able to operate cab-over prime movers, and was reinstated to his former position in March 2010 still unable to operate these vehicles. Mr Lawson's work for the respondent has been solely performed in bonnet-style prime movers, and there is no reliable evidence to establish that the situation in this period would have been any different to that prior to his dismissal or post his reinstatement. 33 In respect of work involving tautliners and pantechs, Mr Lawson is unable to perform deliveries in the company's tautliners, which make up 40 per cent, and can only operate pantechs, which make up 60 per cent. In respect of pantechs, forklifts or electronic pallet jacks are used to load the vehicles. The increase in business from the Coles Myer contract has increased the use of tautliners by the respondent and thereby reduced the amount of work available to Mr Lawson. 34 The issue is whether the increased use of tautliners meant that there was not sufficient work to allow Mr Lawson to be engaged on a full time basis within his medical restrictions. 35 The bulk of the pantech work available to Mr Lawson involves refrigerated loads. There was some issue as to what inferences the Commission may draw from the fluctuations in refrigerated work since December 2007. It is clear from all witnesses that in December 2007 a majority of Lindsay Brothers' deliveries were refrigerated. This refrigerated work subsequently dropped off due to the loss of several clients and was replaced by non-refrigerated loads, particularly with Coles Myer. Refrigerated work picked up again in the last six months, due to a new contract with Swire. 36 Mr Joseph's submission was that this demonstrated there was less work available for Mr Lawson in the period October 2008 to March 2010, whilst Mr Fagir seemed to submit that there was an abundance of refrigerated work available at the beginning of the relevant period, which gradually dropped away until 2010. Without more specific evidence as to the particular fluctuations of refrigerated work throughout the period, I can draw no conclusion other than that sometime prior to 2010 there was a drop in refrigerated work which meant there would have been less work available to Mr Lawson than there is at present. 37 However, I accept Mr Fagir's submission that there are fewer demands on drivers these days to engage in physically demanding manual work. Mr Duncan accepted this was so. Mr Lawson insisted that a majority of the pantech deliveries fell within his medical restrictions. He identified a number of client 'runs' with limited manual work that have been unchanged for years, and have at least continued from 2008 to the present time. 38 With regard to the 'Simplot run' I accept Mr Lawson's evidence that he was performing this run several times a week, perhaps even five, as he contends. However, I also accept Mr Duncan's evidence that this run was lost in 2008, making it largely irrelevant to the issue of work availability during the period for which compensation is sought. As stated by Mr Duncan, in that time, such runs were replaced by Coles Myer work. 39 Further, the 'Simplot run' is one example of long distance work (8 hours), which Mr Lawson was performing prior to October 2008, which would no longer be permitted under his medical restrictions. Dr Burns' report indicates that Mr Lawson's driving should be confined to shorter runs. I note also the current policy of the respondent requiring long-distance drivers to be able to change a tyre. 40 Mr Joseph submitted that the respondent should not have to go to unreasonable lengths to make work available to Mr Lawson. However, the respondent was prepared to reinstate Mr Lawson in full time employment in March 2010 and it was not contended that the reason it did so was because of the increase in the amount of work available at the depot. Moreover, as it was observed in the first decision at [17], the motivation for terminating Mr Lawson's employment in the first place seemed to have more to do with the management of the respondent's insurance premiums than the availability of suitable employment. 41 I accept that there are runs available within Mr Lawson's medical restrictions, which have been consistently available over the past few years. Whilst I agree with Mr Joseph that the loss of various clients and a reduction in refrigerated work would have reduced the available work somewhat, due to the consistent availability of the metropolitan runs, on balance I am satisfied that there was sufficient work available for Mr Lawson in the period 6 October 2008 to 1 March 2010 to enable him to be employed on a full time basis within his medical restrictions. 42 I turn to the issue of whether the amount claimed by Mr Lawson should be discounted. First, it was submitted the amount claimed should be discounted by the amount of workers compensation payments made to Mr Lawson during the relevant period. Mr Lawson does not deny such payments were made to and received by him. Mr Fagir, however, submitted the payment made in respect of workers compensation: [N]o workers compensation payments should be discounted. They are not remuneration. To discount those amounts would provide a windfall to the respondent at the expense of the workers compensation scheme and no discount should be given. If Mr Lawson has to make some sort of restitution, and I use the term loosely, to the insurer, so be it, but that amount should not be discounted and, therefore, become a windfall to the respondent in this case. 43 Mr Lawson was receiving workers compensation for partial incapacity under s 40 of the Workers Compensation Act during the relevant period. That is to say, he received the difference between the weekly amount which he would probably have been earning as a worker but for the injury and had he continued to be employed in the same or some comparable employment, and the average weekly amount that he was earning, or would have been able to earn in some suitable employment, from time to time after the injury. 44 It would be a windfall for Mr Lawson to receive workers compensation payments for periods of partial incapacity during the relevant period and compensation for those periods as though he had been employed on a full time basis. He would, in effect, be paid twice for the periods of his incapacity. 45 The TWU's position is that no discount should be made and if restitution by Mr Lawson to the insurance company is required that should be regarded as a separate matter. However, it seems to me the fairest and most efficient solution, given Mr Lawson has already received his compensation payments for the periods of partial incapacity, is that the amount owed by the respondent to Mr Lawson for the relevant period be discounted by the amount of workers compensation received by him during the relevant period. 46 One has to assume that if Mr Lawson was receiving compensation for partial incapacity, he was unable to perform the work necessary to earn his usual income because of that incapacity. To decline to discount the amount owed would be to pay to Mr Lawson an income he was not able to earn. 47 The second element of a discount was Mr Lawson's earnings from other sources during the relevant period. I agree with the parties that this is a necessary and reasonable discount of any compensation claimed. 48 The third element of a discount was based on the contention that for the period between 10 October 2008 and 22 June 2009 Mr Lawson was unemployed as a consequence of being dismissed for misconduct. However, following proceedings in the Australian Industrial Relations Commission, it was found the dismissal was harsh and Mr Lawson was reinstated from 22 June 2009: Thomas Lawson v Lindsay Brothers Management Pty Ltd [2009] AIRC 282. The Commission ordered that (at [76]): [76] ... Mr Lawson be paid any remuneration lost as a result of the termination of his employment, at the rate of 25 hours per week. That amount is to be reduced by the amount of any income earned by Mr Lawson from employment or other work during the period between the termination of his employment and this order for reinstatement. ... 49 In those circumstances, the respondent cannot succeed in the proposition that it should not be required to make any compensatory payment for the period 10 October 2008 to 22 June 2009. 50 The fourth element of a discount related to the claim having been calculated on the basis of average earnings prior to October 2008, including overtime. Mr Joseph submitted that this calculation was flawed considering that on days when Mr Lawson was on various forms of leave, no overtime would have been paid. If Mr Joseph is correct about this, some adjustment will need to be made to the amount claimed in order to take account of the fact overtime would not have been payable during periods of leave. 51 The final element of a discount related to the proposition that in the second decision, the Commission made the following order: 2. On or after 6 October 2008 Lindsay Brothers Management Pty Limited shall meet with the Transport Workers' Union of New South Wales for the purpose of making a detailed assessment of whether there is productive, full time employment available to Mr Lawson within his medical limitations. That may involve the engagement of an independent assessor agreed on by the parties if they jointly consider that is an appropriate course. The parties will report the outcome of their assessment to the Commission at 9.30 am on Wednesday 5 November 2008. 52 It was submitted that even if the Commission, based on a report by an independent assessor had, on 5 November 2008, decided to reinstate Mr Lawson in full time employment, any order would not have operated retrospectively, either as to the date of reinstatement or as to any back-pay in connection with full time employment. 53 What the Commission has now determined is that the respondent had available to Mr Lawson full time employment, subject to medical restrictions, from 6 October 2008. What might have occurred in November 2008 is not now a relevant consideration. Orders 54 The Commission makes the following orders: (1) Thomas Lawson is reinstated in full time employment as a driver from 6 October 2008. (2) Subject to order (3), the respondent shall pay to Thomas Lawson an amount that does not exceed the remuneration he would, but for being dismissed, have received after 6 October 2008 up to 1 March 2010 ('the relevant period'). (3) The amount payable to Thomas Lawson pursuant to order (2) hereof shall be discounted by: (i) the total amount that he received by way of workers compensation payments during the relevant period; and (ii) the total amount of earnings received for work done during the relevant period. (4) Liberty to apply on seven days notice if there is any disagreement regarding the application of orders (2) and (3) hereof. ___________________________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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