Industrial Relations Commission of New South Wales CITATION: Melanie Longbottom (nee Butler) v South Eastern Sydney and Illawarra Area Health Service [2009] NSWIRComm 1090 APPLICANT PARTIES: Melanie Longbottom (nee Butler) RESPONDENT South Eastern Sydney and Illawarra Area Health Service FILE NUMBER(S): 1160 of 2009 CORAM: Macdonald C CATCHWORDS: Protection of injured workers - application for reinstatement of injured employee - section 242 Workers Compensation Act 1987 - Applicant sought order of reinstatement to Shoalhaven Hospital - Respondent sought order of reinstatement for the Applicant to Shellharbour Hospital - section 243 - four types of reinstatement orders - two reinstatement orders contained in section 243(2) - statutory criteria to be met by Applicant - job available and certified medically fit - employment of a kind - any other kind of employment that is no less advantageous - Held: Applicant made out her case for employment of a kind - Commission to consider whether it should exercise its discretionary power - Respondent's case (any other kind of employment that is no less advantageous) not made out - Order that Applicant be reinstated to employment of a kind sought by the Applicant (Shoalhaven Hospital) LEGISLATION CITED: Industrial Relations Act 1996 Workers Compensation Act 1987 Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355 Diaz v Sydney South West Area Health Service [2008] NSWIRComm 1034 CASES CITED: Hofman v Penford Australia Limited [2008] NSWIRComm 1026 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm 108 Tiney v Sydney West Area Health Service [2009] NSWIRComm 1045 HEARING DATES: 18/11/09 DATE OF JUDGMENT: 21 December 2009 APPLICANT Mr D Shoebridge Barrister LEGAL REPRESENTATIVES: RESPONDENT Mr M Sullivan Solicitor DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MACDONALD C 21 December, 2009 Matter No IRC 1160 of 2009 Melanie Longbottom (nee Butler) and South Eastern Sydney and Illawarra Area Health Service Application by Melanie Longbottom (nee Butler) for reinstatement of an injured employee pursuant to section 242 of the Workers Compensation Act 1987 DECISION [2009] NSWIRComm 1090 1 The Commission has before it, an application by Melanie Longbottom (nee Butler) ("the Applicant") for reinstatement of an injured employee pursuant to section 242 of the Workers Compensation Act 1987. The application is made against the South Eastern Sydney and Illawarra Area Health Service ("the Respondent"). 2 The application was filed on 6 August, 2009. 3 The Applicant (as Melanie Butler) had previously lodged an unfair dismissal application against the Respondent, pursuant to section 84 of the Industrial Relations Act 1996. That application had been filed on 6 March, 2009. Ultimately, conciliation had not been successful in resolving that unfair dismissal application. 4 The Applicant thence filed her section 242 injured employee application on 6 August, 2009. Conciliation was ultimately unsuccessful and the matter was programmed for a Hearing. 5 The Applicant was represented at the Hearing by Mr D Shoebridge, barrister, who called the Applicant, Melanie Longbottom, as a witness. 6 The Respondent was represented by Mr M Sullivan, solicitor, who called the following witnesses: Jennifer Hill - Deputy HR Manager Angela Jones - Manager, Maternity Department of Shoalhaven Hospital 7 The Hearing took place on 18 November, 2009 in Wollongong. BACKGROUND 8 The Applicant commenced employment with the Respondent on or around March, 2003, in the position of Aboriginal Liaison Officer at Shoalhaven District Memorial Hospital (Shoalhaven Hospital). 9 The Applicant commenced workers compensation around 14 February, 2007, being diagnosed with anxiety/depression as a result of being exposed to stress on the job. She was deemed unfit for work until 20 February, 2008 (a one year lapse). 10 The Respondent accepted liability to pay compensation to the Applicant, in respect of her injury pursuant to the Workers Compensation Act 1987. 11 The Applicant remained unfit for work up to 20 February, 2008 by reason of her injury, but by which date she was certified fit for suitable duties. 12 From 20 February to 15 June, 2008, the Applicant was certified fit to perform non-clinical clerical duties three days per week. The Respondent did not have suitable duties available. 13 From around 15 June, 2008, the Applicant was certified fit to perform a limited trial of clinical duties. The Respondent did not have suitable duties available. 14 The Applicant's employment was terminated effective 16 February, 2009, because she was not fit for employment as a result of her injury. 15 The Applicant filed on 6 March, 2009, an unfair dismissal application, pursuant to section 84 of the Industrial Relations Act 1996. Conciliation of that matter was not successful. 16 By letter of 24 July, 2009, the Applicant requested that she be provided with work (employment of the kind) pursuant to section 241 of the Workers Compensation Act 1987. The work being sought was that of AMIHS (Aboriginal Maternal and Infant Health Strategy) Aboriginal Health Education Officer, Shoalhaven Hospital. 17 The Respondent declined that request. 18 On 6 August, 2009, the Applicant filed her section 242 application, which is the subject of this Decision. FINAL SUBMISSIONS For the Applicant 19 Mr Shoebridge, for the Applicant, raised the following in final submissions: (a) The Applicant sought reinstatement to Shoalhaven Hospital (and not Shellharbour Hospital). (b) The Applicant's general practitioner certified her fit for full duties at Shoalhaven Hospital, in the position of AMIHS Aboriginal Health Education Officer. This medical evidence was not challenged. (c) The Respondent witness, Ms Jones, claimed that the Applicant's general practitioner misunderstood the duties to be performed by the Applicant and hence his assessment of her fitness for the Shoalhaven position was flawed. This claim by Ms Jones is rejected by the Applicant, who asserted that her treating doctor had a full understanding of the job position in question. (d) Ms Jones gave evidence that the competing Shoalhaven position and the Shellharbour position are essentially identical. However, the latter position (according to documentary evidence) has greater psychosocial demands (stressors) than the Shoalhaven position for which the Applicant contends. (e) Ms Jones claimed that the Shellharbour position would have less psychosocial demands because the Applicant would have support staff in the hospital and that should reduce the stress. This claim should be rejected as there was no medical evidence to support it. (f) The Applicant's performance of the Shoalhaven position will be supported by a co-worker (the midwife) and by her general practitioner and psychologist, should she need them. (g) The Applicant seeks reinstatement to the Shoalhaven position and this position is employment of the kind contemplated by section 243(2) of the Workers Compensation Act 1987. (h) The Respondent seeks that the Applicant be reinstated to the position at Shellharbour Hospital but that position is " less advantageous " to the Applicant than Shoalhaven hospital, because of the travelling time required to travel to Shellharbour hospital: Public Service Association and Professional Officers Association Amalgamated Union of New South Wales (o/b Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm 108 at para. 110 ("Riley's Case") For the Respondent 20 Mr Sullivan, for the Respondent, put the following in final submissions: (a) The Applicant has sought a position which she did not hold at the time of her dismissal. (b) The position she seeks might be described as employment of a kind if the position sought at Shoalhaven Hospital is described as employment in the area of Aboriginal health. (c) The position for which the Respondent says the Applicant is fit to perform at Shellharbour Hospital is in the area of Aboriginal health and hence is employment of a kind. In the alternate, if the Commission is of the view that the Shellharbour position is not employment of a kind, then it is employment of a different kind. (d) If the Commission is of the view that the Shellharbour Hospital role is employment of a kind, then the legislative question as to whether the role is less advantageous to the employee, does not arise. (e) If the Commission views the Shellharbour Hospital role as being not employment of a kind, then the Commission can still reinstate the Applicant to the Shellharbour Hospital, provided it is a role not less advantageous to the employee. (f) The legislative framework of section 243(1) requires that the Commission must be satisfied that the worker (the Applicant) is fit for the role. The medical evidence provided by the Applicant as to her fitness for the Shoalhaven Hospital role is not to be considered in a vacuum. Thus, the Respondent has a common law duty of care to provide a safe working environment for all of its employees: section 8(1) of the Occupational Health and Safety Act 2000. The Respondent will be in breach of its above duty should the Shoalhaven Hospital role not be a safe role for the Applicant. (The Commission was referred to evidence in support of this submission as to medical fitness/safety). (g) In connection with the foregoing submission, the Respondent stated that the level of support to be provided to the Applicant in the Shellharbour Hospital role, makes that role the better one for the Applicant. (h) The Applicant raised the issue of the distance to travel, in order to carry out the Respondent's preferred work role at Shellharbour Hospital. That is, the Applicant said that role would require more travel time than the Shoalhaven Hospital role and she did not have access to the family car. The Respondent submitted that that issue in itself does not make the Shellharbour Hospital role less advantageous. (i) Depending on the type of reinstatement order made, the Commission should also have regard to the amount of lost remuneration ordered. Applicant in Reply 21 Mr Shoebridge in reply put the following issues: (a) The Commission has before it, one medical opinion only and that is of the Applicant's treating doctor. The Respondent did not seek to put on any medical evidence. (b) The treating doctor's opinion as to the fitness of the Applicant to perform the Shoalhaven Hospital role was made after reviewing the Respondent's criteria for that role and after interviewing the Applicant about the same. (c) One of the criteria for the role, is the ability to meet the "psychosocial demands" (dealing with distressed people, aggressive and unco-operative people, exposure to distressing situations). The treating doctor gave the opinion that the Applicant had the emotional strength to deal with that criterion, as well as the support of a midwife, her treating doctor and psychologist. The evidence also showed that these distressing situations only had an "occasional" occurrence. CONSIDERATION 22 The Applicant filed a section 242 application pursuant to the Workers Compensation Act 1987, seeking reinstatement as an injured employee. 23 Before considering that application, the Commission records that the legislative history of the injured employee provision, is set out in a Full Bench decision of the Commission: Cansino v South Western Sydney Area Health Service (1999) 130 IR 1 at pp9-11, Hungerford and Marks JJ, O'Neill C, 23 August, 1999. 24 The legislative history set out in the foregoing Full Bench decision, concludes with the Industrial Relations Act 1996. 25 Subsequently one further important legislative change took place to the injured employee provision. Thus, Part 7 - Protection of Injured Employees (sections 91 to 100 inclusive) of the Industrial Relations Act 1996, was relocated to the Workers' Compensation Act 1987 (at Part 8) by operation of the Industrial Relations Further Amendment Act 2006. The Statutory Provisions in Operation 26 Sections 91 to 100 inclusive of Part 7 of the Industrial Relations Act 1996 are virtually identical to sections 240 to 249 inclusive of Part 8 of the Workers' Compensation Act 1987. 27 Given that Part 7 and Part 8 are virtually identical, the Commission is aided in the approach to be taken to the statutory operation of Part 8, by reference to the Full Bench statutory approach to operation of Part 7, in Cansino: pp11 to 14. The later Full Bench in Riley reproduced, without adverse comment, the Full Bench approach to the statutory interpretation of Part 7 - and hence Part 8. 28 Both Full Bench's in Cansino and Riley, considered the meaning of certain terms contained in Part 7 and which same terms appear in Part 8. For example: "employment of a kind"; "more advantageous"; "position"; "reinstatement"; "suitable employment"; "vacant"; and "available". Section 243 and Reinstatement Orders 29 Section 243 of the Workers Compensation Act 1987, sets out the type of reinstatement orders that may be made by the Commission. There are four types of orders listed in sub-section (2) and (3): being two orders in sub-section (2) and two orders in sub-section (3). 30 However, it would appear from a reading of sub-section (3), that the two orders listed in sub-section (3) can not be considered by the Commission as remedies for reinstatement, unless the two orders listed in sub-section (2) are not able to be utilised by the Commission. This is so, as sub-section (3) opens with the condition, "If the employer does not have employment of that kind available,…. "(underlining added). 31 Further, the use of the term "available" in the quoted extract above from sub-section (3), makes it clear that the two reinstatement order remedies listed in sub-section (2) can only be utilised, provided that employment of a kind is "available". The meaning of that term was considered in Cansino. (p29, para 20) 32 Having regard to the Cansino statutory interpretation of the operation of Part 7 (and hence Part 8), the Commission sets out below the four reinstatement orders. Thus, the Commission may make an order reinstating the employee to: Section 243 (2) (a) employment of a kind that is available and for which the employee has applied and which may be as advantageous or less advantageous than the pre-injury employment; or (b) employment of any other kind that is available and which is no less advantageous to the employee than that employment applied for; or Section 243(3) (c) employment of any other kind, being: (i) employment of a kind that is available but that is less advantageous to the employee; or (ii) employment of a kind that the Commission considers that the employer can reasonably make available for the employee (including part-time employment or employment in which the employee may undergo rehabilitation). 33 In respect of all four types of orders, there is a requirement that the employee is fit for that kind of employment. Such fitness is to be based on medical evidence. 34 Excepting for the last order of reinstatement listed, the other three orders of reinstatement require that the employment be "available". Section 243 and the Procedural Process 35 There is a statutory procedure to be followed by an injured worker seeking a reinstatement order: (a) the injured worker is one who receives an injury for which the worker is entitled to receive compensation under the Workers Compensation Act 1987: Section 240(2). The Applicant satisfies this criterion. (b) The injured worker was dismissed because he/she was not fit for employment arising out of the workplace injury: Section 241(1). The Applicant satisfies this criterion. (c) The injured worker is to apply to the employer for reinstatement to "employment of a kind": Section 241(1). The Applicant applied for the role of AMIHS Aboriginal Health Education Officer and in nominating that sought after role, she then labelled that role/work as being "employment of a kind". (d) The injured worker is to produce a medical certificate to say that he/she is fit to undertake the work/role (employment of a kind) being sought: Section 241(3). The Applicant complied with this criterion. Her medical certificate is a WorkCover NSW Medical Certificate, dated 20/07/09. (e) The Applicant's application for employment of a kind was rejected by the Respondent. This entitled the Applicant to make an application to this Commission for a reinstatement order: Section 242(1). Employment of the kind for which the worker has applied 36 The Applicant has applied for employment of a kind, being the role of AMIHS Aboriginal Health Education Officer, Shoalhaven Hospital. The Respondent does not oppose reinstatement but puts forward another role (in Shellharbour Hospital) as being the appropriate role for the Applicant, given her circumstances. 37 At one level, these competing roles for the Commission's consideration, are seen as a choice for the Commission to decide. To the extent that the issue is seen as a choice (what role is the less advantageous?), then the Commission takes the view that that perspective is in error, given the legislation's intent in section 243(2). 38 The Commission has already set out the four types of reinstatement orders and stated that the latter two orders (found in section 243(3)), are only available if none of the two orders in section 243(2) can be utilised. 39 And section 243(2) contains in its first set out order, the priority that it is to be considered firstly by the Commission. Thus, the words of priority are: "…for which the worker has so applied for reinstatement…." So, the first focus of the Commission has to be on the kind of employment for which the worker has so applied. The Applicant nominated to the Respondent that she sought reinstatement to the role of AMIHS Aboriginal Health Education Officer at Shoalhaven Hospital. Two questions then arise for consideration. Firstly, is that role "available" and secondly, is the Applicant fit for that role/employment of a kind? 40 Finally, the Commission notes that section 243(2) and (3) for that matter, contain the term "may order" in the context of the Commission's consideration of the possible reinstatement orders. Thus, the Commission has a discretion, at the end of the day, as to its reinstatement power - whether to make an order and if so, to what extent. In that regard, the Commission will then consider the Respondent's proposition that the Commission should make a reinstatement order sought by the Respondent - that is, that the Applicant be reinstated to the Respondent's preferred role at a different hospital, being Shellharbour Hospital. 41 The Commission will now consider the evidence put forward by the Applicant in support of the work for which she applied and also consider the Respondent's evidence against that work application. 42 The Applicant's first hurdle is that the role is "available". The evidence demonstrated that the role is available. The Applicant's witness statement sets out the circumstances surrounding this role:- her being advised of the role and her unsuccessful interview (on 21 May, 2009) for the role (Ex 2, paras 26 to 36). The Respondent relies upon this unsuccessful interview as evidence for the Applicant not being considered for her preferred role. The interview panel comprised four persons, two of whom were witnesses called by the Respondent: Ms Jenny Hill - Deputy HR Manager and Ms Angela Jones - Manager, Maternity Department of Shoalhaven Hospital. 43 The Applicant deposed she understood the job interview to be an "informal interview", arising out of her telephone conversation with a Bernadette Youssef. The Applicant then deposed that had she known it was going to be a "formal interview", then she would have undertaken research. She also would have expected the Respondent to provide her with the interview questions and information regarding the key performance indicators and background information for the role, prior to the interview. 44 Despite being unsuccessful for the AMIHS Aboriginal Health Education Officer role, the Applicant made an application as an injured worker to be reinstated into that role. That application then raises the second hurdle for consideration - the Applicant's fitness for the role. In considering that issue, the Commission will be re-examining later in this Decision, the Respondent's submission that the Applicant had failed her job interview for that role. 45 The Applicant's application for the unsuccessful AMIHS Aboriginal Health Education Officer role was made by letter of 24 July, 2009 and pursuant to section 241 of the Workers Compensation Act 1987. That application was rejected by the Respondent. The Applicant thence filed her section 242 injured employee application on 6 August, 2009. 46 That injured employee application came on for conciliation. The Applicant deposed that she understood from her legal representative (arising out of conciliation before myself) that she would be reinstated to the role for which she had unsuccessfully been interviewed. She understood this was conditional on her being able to provide a medical certificate from her treating doctor (Dr Morgan), stating that she was medically fit for the role. This medical assessment required the doctor taking into account two documents being the Position Description and the Job Demands Checklist. (Ex 2, paras 37 to 39). 47 The Respondent provided the said two documents to the Applicant. (Ex 2 - Annex ML 10). 48 The Applicant saw Dr Morgan on 9 September, 2009 and he assessed the Applicant fit for the AMIHS Aboriginal Health Education Officer role based on the said two documents. Dr Morgan issued a WorkCover Medical Certificate on 9 September certifying the Applicant as fit for that role. (Ex 2 - Annex ML 11). 49 The Respondent declined to offer the role to the Applicant, despite Dr Morgan's assessment. 50 The role in question was not one carried out entirely in Shoalhaven Hospital. Some 70% of the role is community based work. The worker in this role would be working amongst the Aboriginal community by themself or with the midwife attached to this type of work. 51 The witness statement of Angela Jones describes the role for which the Applicant has applied (Ex 7 - paras 8 to 12). Thus: 8. The AMIHS AHEO will be required to encourage and educate women on the importance of seeing health professionals regularly throughout their pregnancies, good nutrition during their pregnancy and post natal care for themselves and their babies. The position holder will also need to provide support and care to women who have miscarried, have difficult pregnancies, have still births and have difficult births. 9. The Jobs Demand Checklist in the position description provides under "Psychosocial Demands" that the position holder will be required to deal with distressed people, aggressive and uncooperative people and distressing situations including child abuse, viewing dead/mutilated bodies. 10. One of the primary roles of the AMIHS AHEO will be to liaise between the midwife and the Aboriginal community and to educate the community about the services offered by AMIHS. The position holder will be exposed to confronting and emotionally distressing situations. It is highly likely that the position holder will be in regular (i.e. almost daily) contact with: a. consecutive instances of cot deaths; b. still-births; c. underweight/malnourished babies; d. Department of Community Services interventions where children are removed from their families. e. domestic violence; and f. drug and alcohol abuse. 11. In addition, the midwife will ask clients of the AMIHS program psycho social screening questions relating to the physical and mental health of the client. These questions include whether the client has been subject to sexual abuse. The AMIHS AHEO is exposed to this on an almost daily basis when a new client is booked to receive an AMIHS service. In many instances the answers to these questions are challenging and emotionally exhausting. 12. The position is in a very small team with only the midwife assigned. Both positions report to me and I am also responsible for the inpatient maternity services and the outpatient maternity services. 52 Despite Dr Morgan certifying the Applicant fit for the AMIHS Aboriginal Health Education Officer role, Ms Jones was opposed to the Applicant undertaking that role. She deposed that Dr Morgan's assessment (as to the Applicant's fitness for the role), showed that the doctor "misunderstood" the role. She added in the explanation: "For example, the doctor advised that "extreme examples of the incidents [cot deaths, domestic violence, drug and alcohol abuse, Doc cases, aggression] will not be a common occurrence". In my view, that comment is misconceived. As stated in paragraphs 8 to 11 of my affidavit, the role of AMIHS AHEO would encounter many challenging and confronting situations on a day-to-day basis" (Ex 7 - para 37) 53 The paragraphs 8 to 11 from Ms Jones' affidavit have been duplicated above at paragraph 51 of this Decision. Within those extracted paragraphs, Ms Jones said that the holder of that AMIHS AHEO role (being the role sought by the Applicant), will be exposed to confronting and emotionally distressing situations. Ms Jones' affidavit then lists those situations, such as cot deaths, still births etc. Further, those situations will highly likely occur on an almost daily basis and hence have to be met by the holder of that position on an almost daily basis and hence have to be met by the holder of that position on an almost daily basis. 54 It was the Respondent's case that the Applicant was not suited to those confronting situations, on an almost daily basis, because of the reason for the Applicant's workplace injury. 55 Thus, the Applicant had been frequently exposed to highly stressful situations as the Hospital Aboriginal Liaison Officer working in the wards of Shoalhaven Hospital. For example, she cared for Aboriginal patients who had been severely beaten up and were in Intensive Care fighting for their lives, she supported Aboriginal patients struggling with a serious illness; she managed an aggressive and abusive person, whilst a security guard stood outside; and provided support to families of the deceased. She was on call 24 hours a day, seven days a week. The foregoing situations caused her a great deal of personal stress and anxiety and led to her being certified unfit for work by Dr Morgan. (Ex 2 - paras 6 to 9) 56 Having considered the evidence and submissions of the parties on this issue of the Applicant's fitness for the AMIHS Aboriginal Health Education Officer role, the Commission concludes that Dr Morgan's assessment as to the Applicant's fitness for that role has not been successfully challenged by the Respondent's case. The reasoning of the Commission for this conclusion is set out below. 57 Firstly: The starting point for the Commission's deliberation is the fitness assessment made by a doctor (Dr Morgan). His fitness assessment is his opinion but it was the only medical opinion provided to the Commission. Neither Ms Hill (Deputy HR Manager) and Ms Jones, a nurse (Manager, Maternity Department of the Shoalhaven Hospital) could challenge that medical opinion of Dr Morgan. (Ms Hill: Tr 18/11/09, p32, line 41 to 46 and Ms Jones: p47, line 28 to p48, line1) 58 Secondly: Ms Jones asserted in her affidavit, that Dr Morgan "misunderstood" the AMIHS AHEO role, which he approved the Applicant medically fit to carry out - and therefore, the Applicant would not be fit for the role. Dr Morgan had stated that the situations described above (cot deaths, domestic violence, drug and alcohol abuse etc) will not be a common occurrence in that role. Ms Jones rejected this claim in her affidavit and said the occupier of the AMIHS AHEO role would encounter many challenging and confronting situations on an almost day to day basis. 59 The cross-examination of Ms Jones involved an analysis of a particular section of one of the two documents provided to Dr Morgan for his interview with the Applicant as to her fitness for the AMIHS AHEO role that she sought pursuant to Part 8 of the Workers Compensation Act 1987. The two documents are the Position Description and the Jobs Demands Checklist. (Ex 2 - Annex ML 10) 60 The Jobs Demands Checklist has a particular section which deals with those challenging and confrontational issues. The section is headed: Psychosocial Demands - Description (comment) and which lists those challenging and confrontational issues and their frequency. Thus: PSYCHOSOCIAL DEMANDS - DESCRIPTION (comment) FREQUENCY Critical I O F C R N Distressed People - eg. Emergency or grief situations x Aggressive & Uncooperative People - eg drug/alcohol dementia, mental illness x Unpredictable People - eg Dementia, mental illness, head injuries x Restraining - involvement in physical containment of patients/clients x Exposure to Distressing Situations - eg. Child abuse, viewing dead/mutilated bodies x The frequency key is as follows: Job Demands Frequency Key I - Infrequent - Intermittent activity exists for a short time on a very infrequent basis O - Occasional - activity exists up to 1/3 of the time when performing the job F - Frequent - activity exists between 1/3 and 2/3 of the time when performing the job C - Constant - activity exists for more than 2/3 of the time when performing the job R - Repetitive - activity involved repetitive movements N - Not Applicable - activity is not required to perform the job 61 These five psychosocial demands for the AMIHS AHEO role, have a frequency rating of either Infrequent or Occasional. The meaning of the frequency was given by Ms Jones in respect of the psychosocial demand: Distressed People which had an Occasional frequency. Thus, she agreed that this information meant the occupier of the role would come into contact with distressed people occasionally - that is, contact of up to a third. Put another way, Ms Jones agreed that contact, by the occupier of the role, with distressed people would occur somewhere between infrequent and up to a third when performing the job. (Tr 18/11/09 - p43, line 44 to p44, line 29) 62 The cross-examination then focussed on the last itemised psychosocial demand and its examples of viewing dead/mutilated bodies. Ms Jones agreed that these were examples and that it was not being said in this Jobs Demands Checklist that the occupier of the role will be exposed specifically to child abuse or viewing dead or mutilated bodies. (Tr 18/11/09 - p44, line 41 to 44) 63 Ms Jones later in cross-examination, confirmed that she was not saying that an occupier of the role, would be exposed to dead people up to a third of the time on the job. (Tr 18/11/09 - p45, line 44 to p46, line 4) 64 She then confirmed that infant mortality in the Shoalhaven or the Illawarra region was relatively low, and that instances of cot deaths was relatively uncommon. (Tr 18/11/09 - p46, line 46 to p47, line12) 65 The next lot of questions to Ms Jones, then addressed her claim, in her affidavit, that the challenging and confronting psychosocial demands of the AMIHS AHEO role, would highly likely occur on an almost daily basis. It was put to Ms Jones that it would not be accurate to state that the psychosocial demand example of cot deaths, would occur on an almost daily basis. This was indeed the statement/claim made in her affidavit and Ms Jones now agreed (to her credit), that it was not accurate to make that claim. In later cross-examination, Ms Jones explained that her affidavit was not intended to read that cot deaths would occur every day and nor was her affidavit intended to read that each of the psychosocial demands would occur every single day. And she agreed that there could be varying levels/grades of domestic violence or drug and alcohol abuse to be faced by the Applicant and midwife acting as a team. Further, she agreed that the frequency of still births would be relatively rare. (Tr p51, line 21 to p54, line 21) 66 Thirdly: There was evidence from Dr Morgan that the Applicant would have "sufficient emotional strength" to deal with any psychosocial demands of any extreme nature, until such time that she could seek the assistance of her general practitioner or a psychologist. (Ex 2 - Annex ML 11: Letter of Sassu to the Applicant, dated 18/8/09) 67 Fourthly: The doctor's report of the Applicant's fitness, was further bolstered by his comment that the Applicant would have the assistance of a co-worker (a midwife) on the job. 68 Ms Jones concurred, under cross-examination that she had no reason to challenge Dr Morgan's opinion on the Applicant's mental wherewithal to comfortably carry out the role. (Tr 18/11/09 - p49, line 10 to 42) She also agreed that the midwife would have the skills to provide both physical and emotional support to the Applicant if any difficulties arise on the job (and vice versa as in a team effort). (Tr p50, line 3 to 31) 69 In summary of this psychosocial demands issue, the Commission finds that the evidence shows that the examples given against each of the five psychosocial demands are just examples. 70 It is not correct to assert that all those examples shall occur in a given time frame. Some of the examples can arise on the job and the frequency of their occurrence on the job, for the AMIHS -AHEO role, is infrequent or occasional. 71 The description, "occasional", means that the occupier of the role could come into contact with one of those examples, up to one third of the time on the job. It does not mean the contact will be one third of the time; nor does it mean contact for one third of the time for all examples. 72 Importantly, the Commission finds that the assertion by Dr Morgan that these psychosocial demands "will not be a common occurrence" (and hence not a common occurrence for the Applicant), was a statement factually consistent with the evidence surrounding the issue of psychosocial demands and their frequency. Summary 73 The Commission has considered the Applicant's claim, pursuant to section 241 of the Workers Compensation Act 1987, to be provided with employment of a kind - that is, the role of AMIHS AHEO in connection with Shoalhaven Hospital. The Applicant needed to satisfy two statutory hurdles in order to be considered for that role: firstly, the role she claimed had to be available and secondly, she had to be certified fit for that role. 74 Although the role was available, the Respondent submitted that the Applicant was not suited for that role given that she failed the job interview process. The Applicant retorted that she had been told by a Ms Youssef that the interview process was informal and accordingly the Applicant did not come prepared for a formal panel interview. The Respondent disputed that the Applicant was advised it was an informal interview process. Ms Youssef was not called as a witness. 75 In any event, the Commission takes the view that the Applicant's failure at her job interview was a process superseded by the process by which the Applicant then made her claim for that same role, pursuant to her section 241 application. 76 Thus, the Respondent then provided to the Applicant and Dr Morgan the Position Description and Jobs Demands Checklist pertaining to that role. Both the Applicant and Dr Morgan then carried out a process by which Dr Morgan (it can reasonably be inferred) was appraised of all of the requirements for the role by the Applicant, in order for the doctor to be able to make an assessment of her fitness for the role. In particular, the doctor addressed those psychosocial demands (challenging work scenarios to be faced by the Applicant) that are of concern to the Respondent and which the Respondent raises as an objection to the Applicant's suitability for the role. Dr Morgan then assessed the Applicant as medically fit for the role she sought. The Commission takes the view that that Applicant - Dr Morgan - and the relevant documentation process overcomes the Applicant's initial failure at her job interview for the role she seeks pursuant to section 241. 77 As to the second hurdle of being certified medically fit for the role sought, the Commissioner finds, having considered the evidence, that the Respondent has not made out a case to the contrary. 78 Although the Applicant has satisfied those two statutory criteria/hurdles, the Commission still has a statutory discretion to exercise as to whether to make the reinstatement order sought by the Applicant or (in this case) to make some other reinstatement order which is the proposition being put by the Respondent. The Commission's discretion arises from the term, "may order", which appears in section 243(2) and 243(3). The Commission will now consider the reinstatement order being proposed by the Respondent. The Respondent's alternate reinstatement order 79 The Respondent's case that the Applicant would be better suited working in Shellharbour Hospital, necessitates a consideration of that work (employment of a kind) and a comparison with the work (employment of a kind) sought by the Applicant (Shoalhaven Hospital). 80 The Shellharbour Hospital role is identified as: Aboriginal Health Education Officer, New Directions - Mothers and Babies. 81 The Respondent, per Ms Cathryn Hellams (Manager, Workforce Services), wrote to the Applicant on 28/10/09, in response to the Applicant's request for reinstatement to the Shoalhaven Hospital. The letter stated that it did not accept that the Applicant was fit to be employed in the Shoalhaven Hospital role and gave supporting commentary. The letter proposed the Shellharbour Hospital, as a more suitable role. A Position Description and Jobs Demands Checklist for the Shellharbour Hospital role was attached to the letter. (Ex 7 - Annex AJ 2) 82 As to these two competing roles, the evidence showed that the two job descriptions are identical, as advised by Ms Jones. (Tr p46, line 24 to 36) 83 In the key important area of psychosocial demands, listed in the Jobs Demands Checklist, the two roles are the same - except for one frequency rating. Thus, the two roles shared the same frequency rating (Indifferent and Occasional) for four of five psychosocial demands. The difference is against the psychosocial demand of: Unpredictable People. For the Shoalhaven Hospital role, this factor had an Indifferent frequency rating. But for the Shellharbour Hospital role the frequency is one level higher in frequency, that is, Occasional. 84 Given that the two roles are virtually identical, then this factor is not a reason for the Commission to decide, in the exercise of its discretion, that the Applicant would be better suited to the Shellharbour Hospital role. 85 There is a difference in the two roles in terms of the working environment and this difference was relied upon by the Respondent to support its preferred option for the Applicant's work location. This difference goes to the issue of the size of the team work support for the Applicant. 86 For the Shoalhaven Hospital role, the Applicant will only have one support person, a midwife. This makes for a team of two persons. By contrast, the Shellharbour Hospital role has several co-workers for support on the job. (Ex 7 - Annex AJ 2) 87 Prima facie, the larger support base (to assist the Applicant to cope with the confronting psychosocial demands), assists the Respondent's preferred employment of a kind role. The larger support base argument takes into account that the Applicant had succumbed to the confronting psychosocial demands in the role she had that led to her being certified unfit for work. 88 Mr Shoebridge countered this issue by pointing out that the Applicant had worked within a hospital, had support staff around her, but still suffered stress and been certified unfit for the role. However, the Applicant's affidavit undermines this submission because she deposed that her anxiety and stress in her former role was magnified by the lack of support she received in that role (Ex 2, para 8) 89 It seems to the Commission however, that although there would presumably be more support staff for the Applicant in the Shellharbour role, that that in itself does not overcome the support issue that has been signed off by Dr Morgan. The doctor has assessed the Shoalhaven Hospital role and concluded that the Applicant is fit for that role - having regard to the support of a co-worker (midwife) for that role and that the Applicant has the emotional strength to deal with the extremes of any psychosocial demands that may occur in the role. 90 If Dr Morgan had raised some condition(s) about the Applicant's fitness for the Shoalhaven role - or if the Respondent had put on contrary medical opinion as to the Applicant's fitness, then the provision of a larger support base for the Shellharbour Hospital role, would have caused the Commission to give the Respondent's preferred role for the Applicant, more weight. As the evidence stands, the Commission is not moved by the Respondent's case on this support base factor. 91 The Commission now deals with one of the reasons why the Applicant did not want to work at Shellharbour Hospital, and that is the travel issue. The travelling distance/time to Shellharbour Hospital (about 60 minutes) is more so than to Shoalhaven Hospital (about 10 minutes). The Applicant shares a car with her husband in order to get to Shoalhaven Hospital. The Applicant would have no car to get her to Shellharbour Hospital. She would need to take two modes of public transport - train and thence bus. 92 Ms Jones said that the Applicant's belief that the extra travelling time to get to/from Shellharbour Hospital was "misconceived", as to its being more onerous. This is so, she deposed, because the Applicant would be required to travel distances (as she moved around the community) in her sought after role. (Ex 7 - para 40 and 41) 93 But this type of travel issue is different to the one being raised by the Applicant. Thus, there is the travel distance/time to get to and from work - before being engaged in work. Travelling distances in the community in a car, whilst engaged in work, is a different issue. Summary 94 The Respondent has put a case that the Applicant be reinstated to work at Shellharbour Hospital - as opposed to the Shoalhaven Hospital role sought by the Applicant. The Applicant's sought after reinstatement role is made pursuant to the first reinstatement order listed in section 243(2). The Respondent's case is based on the second reinstatement order listed in section 243(2): "or to any other kind of employment that is no less advantageous to the worker), but only if the Commission is satisfied that the worker is fit for that kind of employment". 95 In Cansino's case, the Full Bench said that this second reinstatement order is to be no less advantageous to the employee than that applied for. (page 13, para 11) In other words, the basis of the comparison is between the role sought by the Applicant and the one offered by the Respondent. 96 The Commission presumes that the Applicant is medically fit for the Shellharbour Hospital role, given that the job descriptions were identical. Thus, when the doctor signed off the Applicant as medically fit for the Shoalhaven Hospital role, he was likewise signing her off as fit for the Shellharbour Hospital role. 97 Accordingly, the two statutory hurdles for the Respondent have been satisfied - the job is available and the Applicant is medically fit for the role. 98 The third statutory hurdle then for the Respondent, is that the Shellharbour Hospital role is no less advantageous to the Applicant, than the Shoalhaven Hospital role. 99 The Commission finds that the Shellharbour role is less advantageous. The travelling distance/time and two modes of public transport for the Shellharbour role, makes that role less advantageous to the Applicant. The Shellharbour and Shoalhaven Hospital roles are virtually identical as to their psychosocial demands. The Shellharbour Hospital has a slight disadvantage to the Shoalhaven Hospital role, in that one of the psychosocial demands has a higher frequency rating of occurrence against the occupier of the Shellharbour role. 100 Accordingly, the Commission is not moved by the Respondent's case, to exercise its discretion, not to order the reinstatement of the Applicant into her sought after role. CONCLUSION 101 For the reasons set out above in this Decision, the Commission has determined that the Applicant has satisfied the relevant statutory hurdles to make good her claim for her sought after role of AMIHS AHEO: Aboriginal Material and Infant Health Strategy - Aboriginal Health Education Officer, Shoalhaven Hospital. That is, she demonstrated that the job is available and she is medically fit to perform that role, being employment of a kind. 102 Having made that finding, the Commission was then required, by statute, to consider the exercise of its discretionary power as to whether a reinstatement order should be made, per section 243(2), in favour of the Applicant's sought after role. 103 The Respondent agreed against the Applicant's sought after role and put an alternate role argued (Shellharbour Hospital) as being more suited for the Applicant. The Commission considered that alternate role and found it to be less advantageous. Given that finding, then the Respondent's alternate offer did not satisfy the statutory hurdle that its offer be no less advantageous (section 243(2)). Even if the Commission found that the Respondent's alternate offer was not less advantageous, the Commission would still not be moved to order reinstatement into that alternate (Shellharbour) role. 104 Accordingly, the Commission will issue an order of reinstatement for the Applicant to be reinstated into the role of AMIHS - AHEO, Shoalhaven Hospital: section 243(2) 105 The Applicant's period of employment with the Respondent shall be taken not to have been broken by the dismissal: section 246(1). 106 The Commission will make the appropriate order as to lost remuneration, in light of the final submissions made by the respective advocates for the Applicant and the Respondent: The period of time for which the lost remuneration order will operate will be from the date the Applicant made her application to the Respondent for reinstatement (24 July 2009) to the date of the order for reinstatement (22 December 2009): section 243(4). That order for lost remuneration, shall have deducted from it, any Workers Compensation payments made to the Applicant in that operative period of time. O R D E R S For the reasons set out in this Decision, the Commission has determined that the dismissal of the Applicant, Melanie Longbottom (nee Butler), warrants the intervention of the Commission by way of an Order under section 243(2) of the Workers Compensation Act 1987. The Commission hereby makes the following appropriate Orders: 1. The Commission orders, pursuant to section 243(2) of the Workers Compensation Act 1987, that the South Eastern Sydney And Illawarra Area Health Service (the Respondent) reinstate Melanie Longbottom (nee Butler) (the Applicant) to employment of a kind, being the Aboriginal Maternal and Infant Health Strategy - Aboriginal Health Education Officer, Shoalhaven Hospital. 2. The Commission orders, pursuant to section 243(4) of the Workers Compensation Act 1987, that the Respondent pay to the Applicant an amount of money that equates with the remuneration that the Applicant would, but for the dismissal, have received from the date of the making of her application for reinstatement (24 July 2009) to the Respondent, to the date of this order (22 December 2009), less any amount of money received as payment in respect of workers compensation or derived from alternative employment. 3. The Commission orders, pursuant to section 246(1) of the Workers Compensation Act 1987, that the period of employment of the Applicant with the Respondent, shall be taken not to have been broken by the dismissal. 4. The Commission orders that the Applicant is to be reinstated to the employment of the kind herein stipulated as soon as practicable, and within twenty-one days from the date of this Decision. A Macdonald Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.