Industrial Relations Commission of New South Wales CITATION: Hanson Construction Materials Pty Ltd v William Pepper [2008] NSWIRComm 141 APPELLANT: Hanson Construction Materials Pty Ltd PARTIES: RESPONDENT: William Pepper FILE NUMBER(S): IRC 464 of 2008 CORAM: Schmidt J; Backman J; Tabbaa C CATCHWORDS: Appeal from decision of Commissioner - unfair dismissal under s 84 Industrial Relations Act 1996 - whether error in finding that dismissal was harsh - whether error in interpretation of s 89(2) - whether position to which Commissioner ordered re-employment available - leave to appeal refused - appeal dismissed LEGISLATION CITED: Industrial Relations Act 1996 Industrial Relations Act 1991 Anderson v Northern Co-operative Meat Company Pty Ltd (2004) 137 IR 404 Commonwealth Steel Co Ltd and David Alfred Ward (Unreported, Industrial Relations Commission of New South Wales Full Commission, Hill and Hungerford JJ, Sheils CC, 16 December 1994) Effem Foods Pty Limited t/a Uncle Ben's of Australia v Urban (1998) 81 IR 341 Entertainment Distributors Company Pty Ltd v Burnard (1993) 49 IR 446 CASES CITED: Gittani Stone Pty. Limited v. Pavkovic (2007) Aust Tort Reports 81-924 Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348 IGA Distribution Pty Ltd v Moses (No 2) (2002) 114 IR 307 Kay v ITW Limited [1968] 1 QB 140 Riley v WorkCover Authority (NSW) (2006) 151 IR 396 WorkCover Authority (NSW) (Inspector Maddaford) v Coleman (2004) 138 IR 21 HEARING DATES: 24 June 2008 DATE OF JUDGMENT: 29 July 2008 APPELLANT: Mr J Phillips of senior counsel with Mr J V Murphy of counsel Workplace Advisory Group (Mr M Diamond) LEGAL REPRESENTATIVES: RESPONDENT: Mr R Reitano of counsel Australian Workers Union, New South Wales Branch (Mr D Hancock) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: SCHMIDT J BACKMAN J TABBAA C Tuesday, 29 July 2008 Matter No IRC 464 of 2008 Hanson Construction Materials Pty Ltd v William Pepper Application by Hanson Construction Materials Pty Ltd for leave to appeal and appeal against a decision of Commissioner Macdonald given on 19.3.2008 in Matter No. IRC 1215 of 2007 JUDGMENT OF THE COURT [2008] NSWIRComm 141 1 This is an application for leave to appeal, and appeal, by Hanson Construction Materials Pty Ltd (the appellant) against the decision of Macdonald C given on 19 March, 2008. The proceedings at first instance concerned an application for relief in relation to unfair dismissal under s 84 of the Industrial Relations Act 1996. Macdonald C found that the dismissal of William Pepper (the respondent) was "unfair", and, "harsh". Background facts 2 The appellant operated the Bass Point quarry at Shell Harbour. The respondent, an employee of the appellant, had worked at the quarry some 33 years prior to his dismissal. Until 2007, the respondent was principally occupied driving dump trucks and loaders at the quarry. At some time prior to early 2006 the respondent was apparently diagnosed with Ménière's disease. The evidence disclosed that in late 2004, the respondent experienced hearing difficulties and consequent communication problems with other workers at the quarry. On 13 October 2004, John Butcher, a supervisor employed by the appellant, raised his concerns about the respondent's communication problems with the quarry manager, Daryl Kimmins. At that time, according to Mr Butcher, the respondent was also experiencing vertigo attacks at work. The respondent thereafter received medical attention and his condition appeared to stabilise. 3 On 1 February 2006, the respondent was driving a loader at the quarry. As he approached a stationary dump truck his hearing aid fell out of his right ear and onto the controls, which were on the floor to his right. He leaned forward to retrieve the hearing aid when the bucket of the loader he was driving hit the dump truck. The respondent and the driver of the dump truck were uninjured. Both men were tested for drugs and alcohol consumption with negative results. Mr Butcher estimated that the dump truck sustained damage in the order of about $10,000. Mr Butcher in an affidavit, said his primary concern, upon visiting the scene of the accident, was the fact that the bucket on the loader had come very close to the driver's cabin of the dump truck. 4 The appellant's accident investigator, Peter Watson, was asked to investigate the accident. Following the completion of inquiries, Mr Watson expressed the view that the respondent was, "inattentive", at the time of the accident. He ventured an opinion that the respondent's illness, with its possible side effect of vertigo, "may or may not be a possible contributing factor". 5 As a result of this incident, Mr Butcher gave the respondent a verbal warning. He also told the respondent that he required some evidence that the respondent's health was under control, and that he was fit to operate the equipment at the quarry. Following that discussion, Mr Butcher wrote to Dr Jonathon Ell requesting an opinion concerning the respondent's ability to safely operate heavy mobile equipment, and asking Dr Ell to assess the respondent's medical condition. On 14 February 2006 Dr Ell advised by letter, that the respondent was medically fit to carry out his usual work. 6 On 26 June 2006, following the respondent's resumption of his normal duties, he reversed the loader he was driving into a stationary fuel cart. No employees were injured and drug and alcohol tests of the respondent and the operator of the fuel cart yielded negative results. Mr Watson also investigated this second incident. He concluded that the respondent was not concentrating, or paying proper attention, at the time of the incident. Mr Butcher issued the respondent with a formal written warning and reassigned him to work in the primary crusher, which according to Mr Butcher, was not an item of mobile equipment. 7 Following a meeting on 29 September 2006 with AWU union delegate, Jason Blair and the respondent, Mr Butcher said that, despite, "serious misgivings", he agreed to put the respondent back on mobile equipment. The respondent was assigned the role of floater so that his use of mobile equipment would be more varied. 8 On 23 March 2007, the respondent was involved in a third incident. On this occasion, he was refuelling an excavator which suddenly slewed off in an anticlockwise direction and struck the rear offside of the fuel cart, damaging the fuel hose and the pump assembly. Again there were no injuries, although Mr Butcher expressed concern that the fuel pump operator could have been seriously injured. Mr Watson also investigated this incident. He concluded that the respondent, "had been either completely inattentive or unaware of his surroundings while moving the excavator". 9 Following this third incident, Mr Butcher after discussion with David Cilento, the appellant's operations manager, placed the respondent on leave until the appellant obtained a comprehensive medical report, which would address, according to Mr Butcher, what duties the respondent could perform safely at the quarry. 10 A report was commissioned from Dr David Allen, which was not forthcoming until 12 July 2007. Between 23 March 2007 and 12 July 2007 the respondent was stood down on full pay. 11 Dr Allen, in his affidavit, described himself as a qualified medical practitioner with additional specialist qualifications in occupational medicine. He interviewed the respondent on one occasion, on an undisclosed date. He also visited the Bass Point quarry on 28 June 2007 and, at that time, also inspected the appellant's primary crusher control room. Dr Allen's report of 12 July, 2007, set out the following information and comments: I conducted a workplace assessment on Thursday 28 June, 2007 in the Primary Crusher Control Room. The aim of this assessment was to identify any hazards that may cause a problem for Mr Pepper given his medical condition. I would refer to my previous report of [sic] for some further background. I note that the job in the primary crusher control room is a one-man position for most of the time. The primary crusher operator is required to carry out most of the activities within that area alone although he may get assistance for the heavier or more difficult components of the job. In general I note that the worker here needs to monitor the system and deal with any issues that arise. There are various housekeeping and maintenance activities. I viewed the Job Description dated 18 April 2007. I note that generally the job can be quiet for much of the day. Checking is needed to be done at the start of the shift and periodically. This requires the worker to be able to manage the walkways in the area and in some areas ladder climbing is a requirement. If there is a breakdown the worker may have to climb onto conveyors and conduct various checks and/or shovel off materials to clear the area. Assistance can be provided for this if required. The walkways appear appropriately guarded. I viewed the activities performed by the operator here including use of the rock breaker and the control panel. The information processing in operating the equipment here would not appear to be too taxing for Mr Pepper. Comments My greatest concern given his condition is use of the walkways but most particularly climbing ladders and working in areas where falls or loss of balance or consciousness could cause serious injury. Also, as he would be alone for much of the time, if he were to fall or injure himself, help would not be readily at hand. I would believe it would be negligent to place him in tasks involving climbing ladders and operating in an area without some direct access to other workers in the event where he is unable to stand or may fall from episodes of dizziness. The operation of the control room in itself I don't believe would cause him any difficulties. I do believe though, that if the requirements of the job are that he carry out all duties in this area involving inspection and some maintenance this would present a significant risk in the event of an attack of his Meniere's disease. 12 On 18 July 2007, six days after receipt of Dr Allen's report, the appellant wrote to the respondent informing him that his employment was terminated with effect from 24 July 2007. An extract from the letter provided the following information: It became evident that you faced substantial medical issues in the context of remaining at Bass Point Quarry. Those issues were not the cause of the accidents in which you were involved but they were issues that became of great importance when we looked for other tasks you could safely perform. To that end we have been engaged since March in a process designed to identify a job for you within the quarry that met appropriate Occupational Health and Safety standards and was viable for Hanson. You have been working with our occupational physician, Dr. David Allen, and you have given him access to your medical records through your specialist. Dr Allen has consulted with you direct and also considered information provided (at Dr. Allen's request) by Hanson including task assessments for all of the other available duties at the quarry (reviewed by an occupational therapist). Dr Allen has also visited the quarry site to determine whether you could perform the various duties associated with the Control Room position. The initial written advice from Dr. Allen was that you were not of sufficient medical fitness to safely perform the range of duties associated with any of the positions in the quarry. His second written advice given after his site visit and dated 12 July 2007 (a copy of which we gave you today) is that it would be negligent of our company if we placed you in the Control Room position given the range of duties associated with that position. Bill, we are now in a difficult situation. You have a number of health challenges of which you are very well aware. In addition to those challenges there is a clear and serious problem with your capacity to concentrate for the required period when you are at work. None of this means that you cannot play a part in the general workforce but it does create significant difficulties in our company being able to employ you within our industry. After long and detailed consideration on our part we have come to the reluctant conclusion that we will have to terminate your employment with Hanson. After 30 years of service we know that this will come as a severe blow to you. To help soften that blow we propose the following: (i) You will receive a termination payout of approximately $21,500 gross which will include your long service leave pay, holiday pay and pay in lieu of notice; (ii) Hanson will fund a comprehensive outplacement service for you through the DMW Group. This is important to your future. This agency will help design a retraining plan for you that will take you though the next part of your working life. Hanson will also be prepared to provide financial assistance in the retraining phase when you enter that phase. I do emphasise that we have reached this decision with regret. You have been on full pay since March this year [even though you have had no duties to perform] while we have searched for a position for you. We could not find that position and we are faced with the unpleasant choice of terminating your employment. It is a choice we would have earnestly wished to avoid but your health situation has left us with no other realistic option. We believe that if you embrace the retraining opportunity that the DMW Group can make available to you then you can have a working life for many years yet. This is why we are prepared to assist that opportunity on a financial basis. 13 The respondent's medical condition also generated a number of medical reports prepared on his behalf. Apart from Dr Ell's report of 14 February 2006, earlier referred to in this decision, Dr Ell prepared a further report dated 1 May 2007, which advised that the respondent had not had any attacks of Ménière's disease since 14 February, 2006 and that he had bilateral hearing aids. His condition was described as being in remission. Dr Ell also noted in the report that the respondent was not at that time working near moving or heavy machinery but was presently occupied doing a combination of sedentary and physical work which the doctor considered as, "suitable and safe". Dr Allen made no reference to these reports in the advice which he gave the respondents. 14 Two other reports were written after the respondent's termination. A report by an otolaryngologist, head and neck surgeon, Mr Stephen Pearson, dated 31 July 2007, described the respondent's Ménière's symptoms as, "currently stabilised". The report concluded: His disease appears to be in remission and would not consider being at risk for physical and sedentary labour work. 15 On 10 August 2007, Dr Ell provided a third report which advised: His Meniere's disease remains in full remission on medical therapy and he now has bilateral grommets inserted. I consider he is fit to work in a control room and do light manual work provided he is away from heavy and moving machinery. I have provided him with a letter to document this. Decision at first instance 16 Macdonald C commenced his consideration by noting that the respondent's application sought reinstatement, not to his, "former position but to another position", in the primary crusher control room. It will be recalled, from the earlier recitation of the factual background that, at the time of the third incident, the respondent was working as a driver, and that immediately following the third incident, and prior to his termination, he was sent home on full pay. The other position to which the Commissioner directed his attention, was the position occupied by the respondent in the primary crusher control room for a period for some three to six months. 17 Macdonald C then embarked on an analysis of the letter of termination dated 18 July 2007. He referred to Mr Butcher's evidence in cross examination, which was that the letter of termination set out three reasons for the respondent's termination, namely, the three incidents, Dr Allen's report, and comments made by Dr Ell. After acknowledging that the appellant, "took a responsible approach in dealing with the [respondents] involvement", in the three incidents, Macdonald C directed his attention to the relevant facts concerning the three incidents. He also referred to Dr Allen's report of 12 July 2007, observing that, "[a]lthough there was no adverse finding about working in the control room per se, the report stated that it would be negligent for the respondent to place the applicant in the control room because of work required to be performed outside the control room associated with the control room work". Macdonald C again acknowledged the appellant's approach to the respondent's termination, with the comment that it, "had not rushed in as it were to dismiss the applicant following the first two accidents but had given the applicant another position in the quarry". 18 Having undertaken a preliminary analysis of the circumstances giving rise to the respondent's termination, Macdonald C then considered whether the respondent's dismissal was unfair, because of the appellant's failure to offer the respondent the position in the primary crusher plant control room. 19 The Commissioner referred to the evidence of Mr Butcher, which was to the effect that the views of both Dr Ell and Dr Allen had been taken into account by the appellant in reaching its conclusion that the respondent could not work in the primary crusher. He noted, in particular, Mr Butcher's evidence that Dr Ell had written a letter stating that the respondent was, "fit to work in a control room and to do light manual work provided he is away from heavy and moving machinery". 20 This last-mentioned piece of evidence by Mr Butcher, we interpolate, is curious, given that the statement by Dr Ell was not forthcoming until 10 August 2007, that is, some three and one half weeks after the respondent's employment was terminated. There was in evidence, Dr Ell's earlier report of 1 May 2007, in which no such qualification had been forthcoming. Instead, the report had simply noted that the respondent, "is not working near any moving or heavy machinery". This report also stated that the respondent, "is still at work", which we note is at odds with other evidence adduced in the proceedings, not the subject of challenge, and which revealed, that at the date of the report, the respondent had in fact been sent home on full pay. No issue was raised in this appeal as to these apparent discrepancies in the evidence, and we consider that nothing turns on them. 21 Macdonald C also referred to Mr Butcher's evidence, that work in the control room was an area, "away from heavy and moving machinery." He also noted Dr Ell's conclusion that the respondent's Ménière's disease was under control; and, Mr Butcher's evidence, that the appellant had failed to ask Dr Allen about the prospects of the respondent suffering further attacks of Ménière's disease, given Dr Ell's conclusion. 22 Macdonald C found, based on his analysis of the foregoing evidence, that there was no safety issue which would impact on the respondent working alone in the control room. He then dealt with those tasks relevant to the position in the control room, which involved employees outside the control room, having to use the walkways and ladders, and at times, walking on the conveyer belt. In relation to those tasks Macdonald C concluded: From time to time, the employee working in the Control Room might have to come out of the Control Room and take to the walkways and ladders, in order to deal with say, a problem on the conveyer belt. Given that the Meniere's disease was under control, the Commission cannot see how that disease can be an issue - in the context of the appellant working alone. 23 This conclusion, Macdonald C found, was reinforced by evidence from Mr Butcher that two safety features were present in relation to working around the conveyer belt, namely, a personal locking device that made the conveyers inoperable, and the fact that the conveyers were, "appropriately guarded", when operating. Macdonald C also placed reliance on the evidence that a driver would be available (on an informal basis) to assist the respondent, if it were thought necessary, when the respondent was working on or near the conveyers. The evidence of Jason Blair, an employee of the appellant and elected union delegate representing the AWU members on site from 2005, was also referred to in this context. That evidence was that an employee working in the control room was not required to fix all the problems occurring outside the control room. Rather, it depended upon the nature of the problem, and whether some particular expertise was required. 24 Following consideration of this evidence, Macdonald C concluded that the respondent could have been placed by the appellant in the position as operator in the control room. His reasons were set out in the decision. They were, in summary: (i) The position required working alone in the control room as well as working outside the control room, still within the primary crusher plant, from time to time. (ii) Dr Ell's evidence was that the respondent was fit to work in the control room. (iii) As to the work outside the control room any concerns by the appellant that the respondent may, for example, suffer a dizzy spell, were countered by the medical evidence that the respondent's Ménière's disease was under control and, in remission. (iv) With regard to working around the conveyer belts, the evidence of Mr Butcher was that the issue was not raised by Dr Allen in his advice; and, in any event, the conveyer belts were, "appropriately guarded", and, there was a padlock isolation procedure which rendered the conveyer belts inoperable. In addition, the evidence indicated that control room employees had been accompanied by a truck driver while attending to a problem in the crusher plant. Moreover, a control room employee only needed to leave the room to fix a problem from time to time. (v) The respondent had earlier worked in the control room for a period, some three to six months, without incident. 25 These matters provided the foundation for Macdonald C's conclusion that the respondent could have been placed in the role of operator in the control room and, accordingly, that the respondent's dismissal was harsh. 26 The Commissioner then turned his attention to the requirements of s 89. He considered that reinstatement would be "impracticable" because the respondent was not seeking reinstatement to his former position of driver of heavy machinery at the time of his dismissal. Macdonald C next considered the provisions of s 89(2). In that regard, he found: [89] The Commission does have the power, however, to order "re-employment", pursuant to s89(2), to "another position" - after making a finding that it would be "impracticable" to reinstate the Applicant. The Commission does find that it would be "impracticable" to reinstate the Applicant. The other finding to be made, pursuant to s89(2), is that there is another position that is "available" for the Applicant to perform. The Commission has already found that there is another position that is available - working in the Control Room (with its associated duties outside the Control Room) within the Crusher Plant. For the record, the Commission notes that the term "available" (contained in s89(2)) does not mean "vacant", as in the Commission can only order re-employment to a vacant position. The position need only exist, as opposed to be vacant, in order for the Commission to make an order of re-employment: IGA Distribution Pty Ltd v Moses (No 2) (2002) 114 IR 307 at 315. [90] Accordingly, the Commission will make an order that the Applicant be re-employed into the role of Control Room employee working in the Crusher Plant - and carrying out the other tasks associated with that role in the Crusher Plant. The appeal 27 The grounds of appeal set out in the appellant's application for leave to appeal consisted of eleven grounds. On closer inspection, however, and after hearing the parties' submissions on the appeal, it became apparent that two issues were in contest. These were, first that Macdonald C erred in his consideration that the dismissal was harsh; and, secondly, he erred in his approach to s 89(2) of the Act. It was also contended in relation to this second issue, that Macdonald C failed to take into account the occupational health and safety implications of his decision to restore the respondent to the position in the primary crusher control room. Whether error in finding that dismissal was harsh 28 It was contended during oral hearing, that Macdonald C erred in his consideration of whether the dismissal was harsh, by adopting an approach which amounted to an inversion of the statutory test under s 84 of the Act. This was said to be because Macdonald C failed to make a finding under s 84(1) that the dismissal was harsh, unreasonable or unjust, before considering the remedies under s 89. 29 We do not agree that the decision demonstrates an error of the type sought to be identified by the appellant in the Commissioner's approach to s 84 of the Act. This issue was dealt with by the Full Bench in Anderson v Northern Co-operative Meat Company Pty Ltd (2004) 137 IR 404 at [33] to [35]. It was held there that it was an impermissible inversion of the statutory test in s 84 to give consideration to the issues of reinstatement and re-employment before considering whether the dismissal was harsh, unreasonable and unjust. The Full Bench in its finding, placed particular reliance on the earlier Full Bench decision in Entertainment Distributors Company Pty Ltd v Burnard (1993) 49 IR 446, which dealt with the provisions concerning unfair dismissals in the Industrial Relations Act 1991 (NSW). It is convenient to extract the relevant passage from that latter decision (at 453): In our opinion, having regard to the provisions of Part 8 and in particular ss 246 and 250 it is fundamental to the proper exercise of the jurisdiction that the Commission should first make a finding whether or not the employee has been harshly, unreasonably or unjustly dismissed or threatened with dismissal by the employer and set out the reasons for that finding prior to making any order disposing of an application under s 246. It is not sufficient in our view for this merely to be left as a matter of inference from the fact that the Commission decides to dismiss the application or alternatively make orders pursuant to s 250. In this case the Commissioner made orders under s 250, including an order for re-employment without any finding or conclusion that the employees had been harshly, unreasonably or unjustly dismissed and without setting out any reasons for decision in which such a finding and the reasons therefor [sic] were implicit. 30 After outlining the various reasons for the respondent's dismissal, Macdonald C said: [67] The Commission will now consider Mr Reitano's submission that the Applicant's dismissal was unfair because the Applicant had not been offered the position working in the Primary Crusher Plant. 31 What this passage reveals is that Macdonald C considered whether the dismissal was "unfair" in the context of the appellant's failure to offer the respondent a position in the primary crusher control room. This approach, in our view, is consistent with the proper application of the statutory test under s 84. This is especially so, given that the primary consideration in the appellant's decision to dismiss the respondent, was his unsuitability to work in the control room, with particular emphasis on his perceived medical condition at the time. The correctness of the Commissioner's approach may be illustrated by reference to Riley v WorkCover Authority (NSW) (2006) 151 IR 396, where the Full Bench observed (at [93] to [95]): [93] We consider that in finding the termination of Mr Riley's employment was not harsh, unreasonable or unjust, Ritchie C erred in that he did not give adequate consideration to whether there was another position that the employer had available. In circumstances of cases such as this, where an employee has been dismissed because of a medical restriction that prevents the employee from fulfilling the inherent requirements of the job and therefore reinstatement may be impractical, before a finding can be made as to whether or not the dismissal was harsh, unreasonable or unjust, there has to be a full and transparent consideration by the Commission at first instance of whether there was a position available that was suitable for the employee, given his or her medical restriction. If such a suitable position was available a finding that the dismissal was not harsh, unreasonable or unjust may not be open. [94] We have deliberately chosen to say that what needs to be considered in relation to an alternative position is that it should be both "suitable" and "available". We have taken these terms from s 89(2). It is trite law that the remedies under Pt 6 of Ch 2, once a dismissal is found to be harsh, unreasonable or unjust, are available in descending order. The primary remedy is reinstatement: s 89(1) (see, for example, Little v Commissioner of Police (No 2) (2002) 112 IR 212 at 243). If that remedy is impracticable the next available remedy is re-employment "in another position that the employer has available and that, in the Commission's opinion, is suitable": s 89(2). If that remedy is impracticable, the final remedy available is compensation: s 89(5). [95] Normally, no consideration will be given to a remedy until the Commission has determined that the dismissal was harsh, unreasonable or unjust: Anderson v Northern Co-operative Meat Co Pty Ltd (2004) 137 IR 404. This has to be the approach in the present case but in determining whether the dismissal was harsh, unreasonable or unjust we consider that an appropriate test in the circumstances, given reinstatement is impracticable, is to inquire whether the employer had another position available that was suitable given the employee's travel restriction. If the answer to that were in the affirmative and the employer failed or refused to offer such alternative employment, it may be open to find the dismissal was harsh, unreasonable or unjust. An appropriate order in those circumstances might be re-employment pursuant to s 89(2). If no suitable position was available it still may be the case that the dismissal was harsh, unreasonable or unjust because, for example, the employer failed to accord the employee procedural fairness. 32 In written submissions, the appellant contended that further error was demonstrated by the Commissioner's failure to take into account the appellant's conduct in dismissing the respondent. This conduct was said to include the terms of the letter of dismissal, as well as the, "fair and generous", actions of the appellant in retaining the respondent on full pay following the third incident. The tone of the termination letter, according to the appellant, exuded, "empathy and consideration at all steps", of the dismissal process. It was also relevant, according to the appellant, that the respondent, on termination, received payment in lieu of notice, his statutory entitlements, and provision for an outplacement service to assist with the respondent's employment prospects. 33 We perceive two particular difficulties with the contention. First, it was submitted at first instance on the respondent's behalf, that the appellant had failed to accord the respondent procedural fairness in its decision to dismiss him. It was said, in support of this, that the appellant was obliged to give the AWU a copy of Dr Allen's report of 12 July 2007, before dismissing the respondent. The fact that it did not, deprived the AWU (and the respondent) of an opportunity to engage in consultation with the appellant, which may have avoided the dismissal. It was also submitted below that the, "health issues", identified in the letter of termination, were never the subject of further medical opinion, and the respondent, therefore, was not given the opportunity to obtain independent medical advice, prior to the dismissal. 34 In relation to this last-mentioned matter, the letter of termination referred to, "substantial health issues", and, "health challenges", faced by the respondent if he were to remain working at the quarry. The author of the letter, David Cilento, the appellant's operations manager, explained in his cross-examination at first instance, that the reference to, "health challenges", in the letter was a reference to the respondent's bad back, his weight, his hearing and his concentration. None of these matters were specifically addressed by Dr Allen in his report. Nor was there any evidence of the symptoms associated with Ménière's disease. While it is true that Macdonald C's decision does not expressly deal with these issues of procedural fairness, which were raised by the respondent during the appeal, the Commissioner's failure to do so, could not have disadvantaged the appellant. 35 The second difficulty which we perceive with the contention is that it is directly contrary to Macdonald C's findings, in two respects. First, Macdonald C acknowledged the appellant's, "responsible", approach when dealing with the respondent's involvement in the three incidents; and secondly, he expressly noted that the appellant, "had not rushed in", and dismissed the respondent, following the first two incidents, but had found another position in the quarry for him. Macdonald C's finding that the dismissal was harsh, was primarily based on the fact that the appellant had wrongly concluded in the letter of termination that the respondent could not be placed in a position in the control room. Given the circumstances, and the evidence before the Commissioner, we are of the view that it was open to him to make this finding. 36 We would add before leaving this issue, that the compensation paid to the respondent was not said at first instance to be representative of an amount over and above what an employee in the position of the respondent might otherwise have been entitled to; that is, there was no suggestion on the evidence, and no submission advanced before Macdonald C, that the respondent's termination package was overly generous. It cannot, therefore be contended on appeal, on the basis of this evidence, that Macdonald C's finding that the dismissal was harsh, disclosed error. 37 A further contention relied upon by the appellant was that the respondent's "misconduct", in relation to the three incidents, could have justified his termination. Macdonald C's failure to give this issue sufficient consideration, according to the appellant, caused him to fall into further error. 38 According to the appellant, the respondent's conduct in relation to the three incidents exhibited grossly negligent conduct which, cumulatively, rendered his termination lawful. The contention was sought to be advanced by a proposition that the appellant had a common law duty to dismiss the respondent. Various authorities were relied upon in support of the proposition. In the first of these, Kay v ITW Limited [1968] 1 QB 140 at 152 Lord Justice Sellers observed: A master's duty to his servant is to employ reasonably competent servants, so that each servant is not confronted with the risk of a wholly incompetent colleague. 39 A further authority relied upon by the appellant to illustrate the point was Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348, where at 350 Streatfeild J said: It is the duty of employers, for the safety of their employees, to have reasonably safe plant and machinery. It is their duty to have premises which are similarly reasonably safe. It is their duty to have a reasonably safe system of work. It is their duty to employ reasonably competent fellow workmen. All of those duties exist at common law for the safety of the workmen, and if, for instance, it is found that a piece of plant or part of the premises is not reasonably safe, it is the duty of the employers to cure it, to make it safe and to remove that source of danger. 40 In Gittani Stone Pty. Limited v. Pavkovic (2007) Aust Tort Reports 81-924, a third authority relied upon by the appellant, Ipp J commented: [109] I agree with the primary judge that if the appellant was not negligent in failing to dismiss Mr Lee immediately after the first assault in April or May 2000, it was negligent in not dismissing him by the middle of 2001. By then more than a year had elapsed since the first assault during which time the appellant on virtually a weekly basis would manifest outbursts of irrational anger. His irrational personality and tendency to frequent displays of aggressive behaviour had continued. As Hodgson JA observes, the totality of his conduct must be considered. 41 The appellant also referred to a judgment of the Full Bench of the Industrial Court in WorkCover Authority (NSW) (Inspector Maddaford) v Coleman (2004) 138 IR 21 for two propositions. First, that the foreseeability of a risk to safety was a significant factor to be taken into account against an employee when assessing the objective seriousness of an offence; and secondly, that where the relevant risk was foreseen by an employer, this fact may exacerbate the objective seriousness of the offence. An analogy was sought to be drawn by the appellant to the present circumstances, where the appellant was on notice of the respondent's propensity to be inattentive, and that this inattention may have an impact on the safety of workers in and around the control room, which could in turn lead to work related injuries. It followed, it was said, from all this, that if the appellant were to reintroduce the respondent into the workforce, then potentially onerous consequences may ensue, in the event the respondent's pattern of inattention were to continue. 42 While the foregoing observations on an employer's duty in the workplace, and the principles which the authorities espouse, cannot be doubted, the relevance of those authorities to the context in which Macdonald C was considering the respondent's dismissal must be considered. That context, as we earlier identified, was the unfairness or otherwise of the dismissal, not its lawfulness. That consideration arose in circumstances where the respondent concluded it could not offer the position in the primary crusher control plant to the respondent. On the evidence, the appellant considered such an appointment, in the context of the respondent's 33 years' service with it, and given that the respondent had earlier performed that work. 43 As the evidence demonstrated, any inattention, or lack of concentration, on the respondent's part was confined to the three incidents, while he was operating the various items of moving machinery at the quarry. That, no doubt, was why the respondent was prepared to consider the respondent's appointment to the control room position. There was no evidence of any such inattention or lack of concentration exhibited by the respondent when discharging his duties in and around the control room. Dr Allen's report, upon which the appellant placed significant reliance in its decision to dismiss the respondent, did not deal with any inattention or lack of concentration on the part of the respondent. Nor did the other medical evidence. 44 In addition, Macdonald C dealt with a number of potential safety issues said to exist outside of the control room. These included the safety devices in place with regard to the conveyor belts, and the walkways, which, Dr Allen observed, consistent with other evidence, were appropriately guarded. There was no issue on the evidence, that within the confines of the control room, the respondent was not at risk to his own safety or to the safety of other workers in the vicinity as a result of some act or omission on the part of the respondent. Nor was it asserted by the appellant at any stage prior to, and at the point of dismissal, that the respondent's conduct during the three driving incidents amounted to "gross negligence" or "misconduct". Rather, the respondent's conduct, which was confined to the three incidents, was characterised by Mr Watson as, "inattentive", "inattention and distraction", "failing to concentrate"; and, in the letter of termination as displaying, " a clear and serious problem with [your] capacity to concentrate for the required period when [you] are at work." 45 While the appellant also relied on the "incompetency" of the respondent in support of its contention, any incompetent behaviour of the respondent, which may or may not be inferred from his conduct, was again confined, on the evidence, to the circumstances surrounding the respondent's involvement in the three driving incidents. Undoubtedly, that was why the respondent was prepared to consider returning him to control room work. Whether error in interpretation of s 89(2) 46 In relation to the second ground of appeal, the appellant contended, in oral submissions, that Macdonald C had only considered that part of sub-section 89(2), dealing with the appellant's availability to be re-employed in another position. Macdonald C did not, according to the appellant, deal with the second part which requires the Commission to form an opinion that the position is also suitable. 47 It is convenient at this point to set out the provisions of s 89(1) and s 89(2) of the Act: 89 Orders for reinstatement, re-employment, remuneration, compensation (1) Reinstatement The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. (2) Re-employment If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable. 48 This first contention may be disposed of briefly. Although Macdonald C did not expressly find in the decision that the position in the control room was suitable for the respondent in accordance with s 89(2), that finding may be readily inferred from the conclusion that the respondent's dismissal was harsh because he was, contrary to the appellant's assertions in the letter of termination, capable of performing the duties required in and around the control room, within the confines of the plant crusher. 49 Secondly, it was contended, on the issue of suitability, that Macdonald C ignored the full extent of the medical evidence. Dr Allen's report had advised that it would be negligent to place the respondent in the position in the control room because of some of the tasks associated with the position, immediately outside the control room, which required ladders to be climbed, tasks to be performed without direct access to other workers, and, tasks (presumably associated with the conveyor belts) involving inspection and maintenance, which would present a significant risk in the event of an attack of Ménière's disease. The appellant also relied upon what it said was the guarded nature of Dr Ell's report of 1 May 2007, namely that the disease was in remission, but that the respondent needed to continue his present medication and other treatment. Dr Ell's later report of 10 August 2007, was also relied upon in support of this issue. That report, which was before Macdonald C for consideration, advised: I consider [the respondent] is fit to work in a control room and to do light work provided he is away from heavy and moving machinery. 50 Mr Pearson's report was also relied upon, specifically for his advice that the respondent's Ménière's symptoms, "appear to be in remission and would not consider being at risk for physical and sedentary work". 51 None of the doctors whose opinions were in evidence were called by the parties. The fairness of the appellant's decision not to appoint the respondent to the control room, therefore had to be considered on the face of the written medical reports. These various pieces of advice, extracted from the medical reports were said to contain qualified diagnoses as to the respondent's capacity to safely discharge the full extent of his duties in and around the control room; and, that Macdonald C failed to have proper regard, or take into account, these matters. 52 In addition to the medical reports, it was also said that the Commissioner failed to take into account the comparatively recent history of the respondent's inattentiveness, his lack of concentration, and the three incidents, in his assessment of whether the position in the control room was suitable. 53 In our view, this second contention on the issue of the respondent's suitability to perform work in and around the control, cannot be sustained. The medical reports, except for the report of Dr Allen, all stated that the respondent's Ménière's disease was in remission, a situation which Dr Allen did not address in his report. That he was aware of and considered the respondent's current medical situation and the views of Dr Ell was not clear. Certainly Dr Allen made no reference to this in his report None of the medical reports, including the report of Dr Allen, referred, either expressly or impliedly, to any "inattentiveness", lack of concentration, or otherwise, on the part of the respondent. Other evidence which sought to establish that the respondent had been inattentive or lacking in concentration, was, as we have earlier remarked, confined to the three incidents. There was no evidence either direct, or from which an inference might be drawn, that the respondent had been inattentive, or suffered any lapse of concentration while working in the control room for the period between the second and third incidents. There was evidence, which appeared to be unchallenged, that the respondent had worked in and around the control room without incident. When all of these matters, in combination, are considered, it was clearly open to Macdonald C to find that the position in the control room was suitable for the respondent, particularly the entirety of the medical evidence. It was open to the Commissioner not to accept Dr Allen's conclusions, given the other medical opinions in evidence. That the parties elected not to test those views, was a matter for them. Thereby, they left it to the Commissioner to resolve that issue, on the face of the various reports 54 Macdonald C also considered the occupational health and safety implications which might arise if the respondent were placed in a position in the control room. The evidence on the issue has already been canvassed by us in some detail. Following his review of the evidence on the issue of the safety of workers in and around the control room, Macdonald C found, first, that there was, "no safety issue", in relation to the respondent working alone in the control room. Secondly, that the safety features in place outside the control room, and the evidence that the respondent's Ménière's disease was in remission, effectively removed any impediment to his placement in the position in the control room. Both findings were supported by the evidence before the Commissioner and were, in our view, also open to him. 55 Thirdly, the appellant contended in oral submissions, that no other position was "available" for the respondent in accordance with the requirements of s 89(2). This was said to be because the appellant, in order to accommodate the respondent in a position in the control room, would have to effectively create a new position which did not exist previously. This requirement to create a new position was said to arise from the appellant's duty to comply with its statutory obligations under the occupational health and safety legislation. Specifically, the appellant contended that in order to ensure the safety of the respondent and other workers in and around the control room, the appellant would be obliged to provide the respondent with close or very close supervision. This requirement would in turn involve the position being modified to incorporate the particular, "abilities or difficulties", of the respondent, which would effectively amount to the creation of a new position which was not an "available" position within the meaning of s 89(2). In support of this contention, the appellant relied on the Full Bench decision of IGA Distribution Pty Ltd v Moses (No 2) (2002) 114 IR 307, in particular a passage extracted from the decision at [27], which provides: [27] In Effem , the Full Bench found that s 89(2) limited an order for re-employment to the re-employment of an applicant "in another position" which the employer had available. It was found that the section required the existence of an available and suitable position and did not authorise the Commission to require an employer to create a position "tailored to the abilities of the applicant" (at 346). 56 In IGA v Moses the Full Bench observed that the approach in Effem Foods Pty Limited t/a Uncle Ben's of Australia v Urban (1998) 81 IR 341, which held that the words "available" and "suitable" under an equivalent provision to s 89(2), did not authorise the creation of a position, "tailored to the abilities of the applicant", was an "unduly restrictive" construction, (at [28]). The Full Bench preferred the approach adopted in Commonwealth Steel Co Ltd and David Alfred Ward (unreported, Industrial Relations Commission of New South Wales Full Commission, Hill and Hungerford JJ, Sheils CC, 16 December 1994) which decided that "available" was not synonymous with the word "vacant", but meant, "capable of being used by, or at the disposal or within the reach of, the employee - whether or not it is vacant at the time". 57 Returning to the present proceedings, it is unnecessary for us to decide whether the meaning of the word, "available", in s 89(2) is inconsistent with a construction of the sub-section that incorporates the creation of a new position, by reason of a requirement for close or very close supervision. In order for the appellant's third contention to be made good, the existence of a requirement for close supervision of the respondent while working in the control room, must be borne out by the evidence. We are of the view that the evidence does not support such a requirement. To return briefly to some of that evidence, which was before Macdonald C, the respondent's Ménière's disease was in remission at the time of the dismissal; he had worked in and around the area without incident for a period of some three to six months; various safety features had been implemented by the appellant with regard to work in and around the conveyor belts and walkways; and, assistance was available in the form of a driver, if and when the respondent worked on or near the conveyor belts. These matters do not provide a basis for the suggestion that the respondent would require close or very close supervision in the area, in order for him to safely perform the tasks associated with the control room position. The appellant concluded that it could not offer the respondent the control room position. The Commissioner concluded that the decision was harsh, on all of the evidence, and ordered the respondent's re-employment in the very position which the appellant had considered appointing him to. We can see no basis, in those circumstances, on which it could be properly argued, that the position was not an available one. On the evidence, it was open to the Commissioner to conclude that it was a suitable one. Conclusion 58 We are of the view, after careful consideration of the evidence and other material, that Macdonald C did not fall into error when ordering the re-employment of the respondent to a position in the primary crusher control room. Accordingly, we would refuse leave to appeal and dismiss the appeal. 59 The Commission makes the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. ____________ 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.