Industrial Relations Commission of New South Wales CITATION: Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Limited [2008] NSWIRComm 157 APPLICANT: Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) PARTIES: RESPONDENT: Lindsay Brothers Management Pty Limited FILE NUMBER(S): IRC 27 of 2008 CORAM: Boland J President CATCHWORDS: Injured worker - Reinstatement - Section 242 of Workers Compensation Act 1987 - Transport industry - Worker terminated on the ground that employer did not have suitable duties for worker to perform due to medical restrictions - Application by worker's union for reinstatement of worker - Consideration of medical evidence as to worker's capacity to perform work - Whether medical certificates should be accepted as evidence of worker's capacity to perform work - Consideration of work available to be performed by injured worker - Consideration of the circumstances that led to termination of worker's employment - Whether worker fit for full time or part time employment - Directions to confer LEGISLATION CITED: Workers Compensation Act 1987 ss 242, 243, 243(2), 243(3) Cansino v South Western Sydney Area Health Service (1999) 130 IR 1 CASES CITED: IGA Distribution Pty Ltd v Moses (No 2) (2002) 114 IR 307 Riley v WorkCover Authority (NSW) (2006) 151 IR 396 HEARING DATES: 14 & 15 July 2008 DATE OF JUDGMENT: 29 August 2008 APPLICANT: Mr M Aird Transport Workers' Union of New South Wales LEGAL REPRESENTATIVES: RESPONDENT: Mr A P Joseph of Counsel Solicitors Mr C Mossman BCI Duells Lawyers JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Boland J, President Friday 29 August 2008 Matter No IRC 27 of 2008 TRANSPORT WORKERS' UNION OF NEW SOUTH WALES ON BEHALF OF THOMAS LAWSON v LINDSAY BROTHERS MANAGEMENT PTY LIMITED Application by Transport Workers' Union of New South Wales on behalf of its member Thomas Lawson for reinstatement of an injured employee pursuant to section 242 of the Workers Compensation Act 1987 DECISION [2008] NSWIRComm 157 1 This matter concerns an application by the Transport Workers' Union of New South Wales ("the TWU"), for reinstatement of its member, Mr Thomas Lawson, to the multi-function position of local pick-up and delivery driver and trainer pursuant to s 242 of the Workers Compensation Act 1987. Mr Lawson was employed by Lindsay Brothers Management Pty Ltd ("the respondent") from about September 1996 until 5 December 2007, when his employment was terminated for the reason that the respondent did not have suitable duties for Mr Lawson to perform because of his medical restrictions. Mr Lawson had been on restricted duties following a rotator cuff shoulder injury he sustained at work in 2001. He had only just returned from further shoulder surgery at the time of his termination. On 13 December 2007, the TWU, on behalf of Mr Lawson, wrote to the respondent seeking the immediate reinstatement of Mr Lawson. The request was refused and on 9 January 2008 the Union, on behalf of Mr Lawson, filed its application with the Commission. Relevant Statutory Provisions 2 Section 242 of the Workers Compensation Act provides: 242 Application to Industrial Relations Commission for reinstatement order if employer does not reinstate (1) If an employer does not reinstate the worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for a reinstatement order. (2) An industrial organisation of employees may make the application on behalf of the worker. (3) The Industrial Relations Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured worker was dismissed. 3 The power of the Commission to make a reinstatement order arises from s 243 of the Act, which states: 243 Order by Industrial Relations Commission for reinstatement (1) The Industrial Relations Commission may, on such an application, order the employer to reinstate the worker in accordance with the terms of the order. (2) The Industrial Relations Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (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. (3) If the employer does not have employment of that kind available, the Industrial Relations Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being: (a) employment of a kind that is available but that is less advantageous to the worker, or (b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation). (4) If the Industrial Relations Commission orders the worker to be reinstated, it may order the employer to pay to the worker an amount stated in the order that does not exceed the remuneration the worker would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission. Factual Background 4 Mr Lawson was employed by the respondent in a local pick-up and delivery driver role in which he performed driving duties, including the occasional interstate changeover trip. In addition to driving, local drivers, including Mr Lawson, were responsible for: .... the loading and unloading of the linehaul vehicles outside the depot, which involves the manual handling of pallets weighing between 800kgs and 1200kgs. On occasion, pallets can be loaded or unloaded via forklift, however, there is a requirement to remove or place ply and load restraint bars in the vans during that process. If the equipment is side loading, then there is a requirement to remove, or install, gates and to secure loads in accordance with the applicable load restraint guidelines. About 20% of loads are full pallets which can be transferred by forklift out of one truck and into another. All others involve some manual handling. 5 There was a significant amount of evidence in the proceedings concerning Mr Lawson's medical history. On 1 March 2001, whilst securing a load, Mr Lawson felt a sharp intense pain in his right arm. He attended his general practitioner, following which he made a workers compensation claim. The injury became progressively worse. Eventually, Mr Lawson had a shoulder reconstruction in April 2006. However, as a consequence of the burden his left arm bore from his right shoulder injury in 2001, his left shoulder was operated on in October 2007 to repair tendon damage. The surgery was unsuccessful and a shoulder reconstruction was performed on the left shoulder in April 2008, that is, after the respondent had terminated Mr Lawson's employment. The three surgical operations were covered by his workers compensation claim. In addition, Mr Lawson also had a hip replacement in 2001 and carpel tunnel surgery in 2004, both of which were not workers compensation injuries and for which he took unpaid leave to recover. 6 After his successful shoulder reconstruction in April 2006, Mr Lawson required a four-week period of leave from work. He advised the respondent that he was unable to perform any driving or lifting. He was contacted by Mr Peter Blair, the respondent's Arndell Park depot manager, who said words to the effect of: Come back to work, I've got the right job for you. ... [w]e're having trouble with blokes dropping trailers and causing damage to the loads. We need a driver trainer who will train the blokes up so that they stop doing it. You're experienced, so I'd like you to be that driver trainer. 7 Mr Blair stated that after he was informed of Mr Lawson's restrictions, he believed there were no suitable positions available for Mr Lawson at the depot, but had offered the 'temporary position' of 'driver trainer' because he wanted Mr Lawson to return to work in some capacity. Mr Lawson subsequently obtained medical clearance, and on the condition that he performed no lifting or driving, he returned to work. 8 Mr Lindsay, the respondent's Managing Director and Mr Blair, maintained in their evidence that the company already had a qualified driver trainer, Mr Steven Cooper, and that the position of driver trainer was a job that was 'made up' or 'manufactured' specifically for Mr Lawson to enable him to return to work. Mr Cooper gave evidence in proceedings, and described the necessary qualifications for a driver trainer and the main duties he performed in his role: I am the only qualified Driver Trainer at the company that is able to do heavy vehicle licensing, which involves working with the Roads and Traffic Authority (RTA) and I am bound by various legislation . Some of my main duties as a Driver Trainer include, training drivers in the use of heavy and multi-purpose vehicles, attending to licence upgrades, interviewing candidates, doing background checks for prospective new employees, training employees in fatigue management systems and on our obligations under workplace health and safety legislation. To become a Driver Trainer you must complete various training courses that are run by the RTA (both practical and theory) and obtain a Certificate IV in Training and Assessment. In order to meet various legislative obligations, the company's Driver Trainer must be a properly accredited. Due to my qualifications and the RTA Guidelines involved in carrying out my duties as Driver Trainer, the Company cannot employ any other personnel other than myself to carry out formal driver training and duties, unless they are a registered training organisation. 9 The evidence regarding Mr Lawson's qualifications was that he had worked in the road transport industry for over 30 years and had successfully completed a Transport & Distribution (Road Transport) Certificate III on 29 December 2001. Mr Lawson was not, however, an accredited driver trainer and, according to Mr Lindsay: .... the amount of training that he could properly do is severely limited. Mr Lawson could only train drivers in some minor induction and other ancillary procedures at the Sydney depot. The business has a need for only one driver trainer who is Mr Steve Cooper. Mr Cooper travels to each of the depots to discharge his duties or drivers will come to him at Coffs Harbour for the purposes of training or instruction. The business has no need for another full time or part time driver trainer, particularly, the company has no need for a driver trainer at the Sydney depot. All depots are adequately looked after by Mr Steve Cooper. Obviously, there are some induction and training issues which are relatively minor in nature which Mr Cooper will not deal with (like local depot paper work procedures or showing a new driver around the depots facilities). These more minor induction and orientation issues are usually dealt with by the Depot Manager or other experienced employees. 10 However, in cross-examination, Mr Cooper accepted that he himself performed virtually no training of pick up and delivery drivers at the Arndell Park site, as he concentrated mainly on training long haul drivers. For his part, Mr Lawson explained that as driver trainer at Arndell Park, he would undertake training according to an induction checklist for new employees which included showing the new employees how to start and set the refrigerated trailers; how to complete paperwork; how to drop and hook up trailers; how to get into various yards; and how to distribute and secure their loads. In relation to longer-term employees, he helped them gain 'HC licenses', trained them to reverse semi-trailers, restrain and distribute loads appropriately. 11 Mr Lawson maintained that he would spend from one to two weeks training a new driver and estimated that as a driver trainer he had spent approximately half his working time training drivers. Mr Blair thought that the training of new employees would normally be only one week, whilst basic induction training could be performed by himself or other drivers in one full day. Mr Blair also said that he believed that Mr Lawson was usefully employed for less than half the time for which he was paid over the last two years. 12 Mr Lawson's evidence was that when he was not performing driver trainer duties, that is, when there were no new employees and all other employees had been trained, he undertook general yard duties, loaded and unloaded vehicles, and performed driving duties. This was despite him not having medical clearance to drive until July 2007, and even then the relevant medical certificates permitted only 'occasional driving' and no lifting. In cross-examination, Mr Blair accepted that trip sheets tendered in proceedings showed that Mr Lawson had been allocated driving work between 31 March 2007 and 2 September 2007, including completing a changeover trip. He also acknowledged that Mr Lawson supplemented his driver trainer position with other duties, but said those duties were limited to: ....driving short distances to destinations which had drive in docks. Places with drive in docks minimise the requirement for manual handling when loading or unloading. There are only a very limited number of sites that have drive in docks. Thomas would also supplement his hours by performing general yard duties. 13 On 24 October 2007, Mr Lawson had surgery on his left shoulder to repair tendon damage. It was the evidence of Mr Lawson, and uncontested by the respondent, that six weeks after his surgery Mr Lawson was contacted by Mr Blair who said words to the effect: ....we've got a new bloke who has started. We need you to come in and train him. You'll be doing no lifting or driving yourself, we need you back cause you're our driver trainer. Termination of employment 14 Following Mr Blair's request, Mr Lawson obtained medical clearance to return to work on 30 November 2007, provided he performed 'limited driving on an occasional basis' and no lifting. He then returned to work on 3 December 2007 to train the new driver and continued to attend work to train the driver on 4 and 5 December 2007. On 6 December 2007, Mr Lawson arrived at work, but was unable to "log on to the system". He was handed a letter advising that his employment had been terminated effective the previous day. The reason given by the respondent to Mr Lawson for the termination was that: We no longer have suitable duties to offer within your medical restrictions, and since it is unlikely that you will be able to return to your pre-injury duties, we consider that it is in your best interest to pursue more appropriate employment. 15 The letter of termination was dated 5 December 2007 and signed by Mr M K Lindsay, the respondent's managing director. On the previous day, there was an exchange of emails between Mr Graham Johnston of Lindsay Brothers and Mr Adam Bird, of Warren Saunders Insurance Brokers (Aust) Pty Ltd. Mr Johnston made the following somewhat curious request: I believe that we had further terminations planned for early December. Could you please advise the employees which can now be terminated. 16 Mr Bird responded by nominating one employee for termination and recommending another. He then stated: Two that I am not sure about are Thomas Lawson and.… They are with Gallagher Bassett and way outside of premium impact however if they also remain employed I would recommend they be terminated also. 17 The emails suggest that the motivation for terminating Mr Lawson's employment had more to do with the management of the respondent's insurance premiums than the availability of suitable employment. 18 There were no discussions between Mr Lawson and anyone connected with the respondent regarding the lack of available work and the consequences of that for his ongoing employment. Mr Michael Martin, the respondent's Occupational Health and Safety and Environmental Manager, gave evidence. He believed there had been a discussion between Recovery Partners, (one of the companies that managed the respondent's workers compensation claims) and Mr Lawson, regarding the possibility of termination possibly being in Mr Lawson's interest. However, Mr Lawson denied that any discussion occurred. Mr Martin also thought that Mr Blair had had discussions with Mr Lawson regarding his employment, either on the morning of, or the day prior to, termination. Yet Mr Blair himself said that he had had no discussions with Mr Lawson about any possible termination, or lack of available work, prior to the termination of Mr Lawson's employment. Further, he acknowledged that any proposal or recommendation to terminate Mr Lawson's employment did not emanate from him, nor could he recall, personally, having any discussions with anyone from Lindsay Brothers or Recovery Partners regarding the availability of work for Mr Lawson. Medical Certificates 19 In relation to Mr Lawson's current fitness for work, the applicant relied on a WorkCover Medical Certificate for Mr Lawson dated 2 June 2008 and signed by Mr Lawson's general practitioner, Dr Gary Anderson. The certificate stated that Mr Lawson was fit for suitable duties from 7 June 2008 to 1 October 2008, except that he could not perform any lifting, and only limited driving and instruction and supervision of drivers was acceptable. The applicant also relied on the evidence of Mr Lawson as to his fitness to perform the multi-function driver trainer/pick-up and delivery role. 20 Mr A Joseph of counsel for the respondent, objected to the medical certificate as evidence of Mr Lawson's fitness on the basis that the certificate was hearsay. The submission as it was put, was that the certificates were merely what: ... Mr Lawson's treating doctors have told him based on what they have been told by him about the work. For a person who has the history of hip, shoulder (and back) complaints coupled with multiple surgical interventions the Commission would expect expert, post-operative evidence setting out with some clarity the nature of the duties that Mr Lawson can perform. Without such evidence, the Commission cannot be satisfied that Mr Lawson is fit to do any work of the type that the respondent does (or can) supply. 21 The respondent submitted that there was no presumption of fitness for work in cases such as this and that the onus was on the applicant to make out a positive case that would allow the Commission to assess the availability of suitable employment. It was contended that the applicant had not done this and that there was no real evidence regarding Mr Lawson's fitness to work in any role that the respondent could offer. 22 Mr M Aird, for the applicant, submitted that the respondent had been in possession of the certificates for a period of time and had not provided any additional medical assessments, nor had it sought to refute the certificates. In addition, the company had a history of relying on the medical certificates; that is, the respondent acted on the certificates as evidence of Mr Lawson's fitness for certain types of work, yet it now wished to contend that the Commission could not place any reliance on the certificates. 23 As earlier noted, s 243(2) of the Act provides that the Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (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. Alternatively, s 243(3) provides that if the employer does not have employment of that kind available, the Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being: (a) employment of a kind that is available but that is less advantageous to the worker, or (b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation). 24 I do not see any barrier to the Commission accepting the medical certificates that have been tendered as evidence regarding Mr Lawson's fitness for work, either for employment of the kind for which he has applied for reinstatement or the employment referred to in s 243(3). The Act does not state how it is that the Commission is to be satisfied that a worker is fit for the kind of employment he or she seeks. Although it may be accepted that fitness would need to be determined on a proper basis, that does not necessarily exclude medical certificates as evidence of fitness. Whilst it is not the best evidence, in the present case the medical certificates are the only evidence before the Commission as to Mr Lawson's medical condition and fitness to perform work. I have no basis for questioning the veracity of these certificates. 25 There has been no evidence of a medical kind adduced by the respondent that would throw doubt on what the certificates say about Mr Lawson's fitness for work. Dr Anderson was Mr Lawson's treating doctor over a considerable period of time, providing certificates from at least 2002. One may readily accept that Dr Anderson was most familiar with Mr Lawson's medical condition and, accordingly, what were the appropriate limitations to be placed on his capacity to perform work. As the applicant submitted, the respondent has been prepared, without exception for a number of years, to accept Dr Anderson's opinion regarding Mr Lawson's fitness for employment. It is somewhat inconsistent with that acceptance to now be contending the medical practitioner's opinion should not be regarded as proof of Mr Lawson's capacity to perform certain work. 26 I intend to accept Dr Anderson's opinion of Mr Lawson's medical condition expressed in the medical certificate and the restrictions he has placed on the work that may be performed by Mr Lawson. That is, that Mr Lawson is fit for suitable duties, which may include "instruction/supervision of drivers" and "limited driving", but "no lifting". Availability of Work 27 The question then arises as to whether the respondent has employment of the kind to which Mr Lawson seeks reinstatement. The onus in that regard falls on the employer: Cansino v South Western Sydney Area Health Service (1999) 130 IR 1 at 11-14. In the present case, the employment to which Mr Lawson seeks reinstatement is the multi-function driver trainer/pick-up and delivery role. 28 The authorities make it clear that "available" in s 243(3) does not mean, "a pre-existing specified position designated by the employer which is vacant": see IGA Distribution Pty Ltd v Moses (No 2) (2002) 114 IR 307 and Riley v WorkCover Authority (NSW) (2006) 151 IR 396. The word "available" is to be taken to mean "another position was of avail to, capable of being used by, or at the disposal or within reach of, the employer - whether or not it was vacant at the time": see Riley at [107]. 29 Evidence was led by both parties about the availability of work at the Arndell Park site. Mr Blair explained the composition of employees at the site: There are 52 people employed at the Arndell Park depot, not including the linehaul drivers who can be away for a week at a time. On day shift, there are 16 local drivers (of which Mr Lawson was one), 4 forklift drivers and 7 clerical staff working at any one time. On nightshifts, there are 2 local drivers/forklift drivers, 1 forklift driver and 11 change-over/shuttle drivers. 30 Mr Blair described the physical requirement and skill needed for each position, as well as his assessment of Mr Lawson's ability to perform the various roles. He believed that based on Mr Lawson's medical restrictions and the work performed at the Arndell Park site that the respondent could not find ongoing suitable employment for Mr Lawson. Counsel for the respondent submitted that given Mr Lawson's medical history, the only position that the Commission may be satisfied Mr Lawson would be able to perform, would be sedentary in nature. This would mean, at best, the only function he could fulfil was the induction process undertaken with new drivers in the depot, which Mr Blair stated was being performed by either himself or other drivers since Mr Lawson's termination. In his written submissions, Mr Joseph further submitted that: If it is accepted that the term 'available' is more akin to employment being existing rather than vacant, there must be a question at least that these functions don't even exist. It is not to the point that the respondent might benefit from having these functions performed by someone. It is not the Commission's job to run an employer's business. It may be said that the employer could reasonably make such employment available-see section 243(3)(b). However, the evidence is that the respondent has only hired 4 local drivers in the calendar year 2008 (Michael Martin-examination in chief). That means that in seven and one half months, the employer could reasonably have made available between four days and eight days work to Mr Lawson. That being the case, and taking into account that the hiring of staff must be unpredictable the Commission would not, as a matter of discretion, make orders where the availability of suitable work was so limited and uncertain. 31 The applicant contended that the position of driver trainer, as performed by Mr Lawson, was a real position and a position that Mr Lawson was fit to perform. Mr Lawson's evidence was that he could not recall being told by Mr Blair the position was temporary. In his evidence Mr Lawson readily accepted that there were times when there were no training duties to perform, but when that occurred he supplemented the training function with other tasks, such as driving and yard duties. 32 In relation to the number of new drivers, Mr Martin gave evidence that in 2008 only three or four new drivers had been employed at the Arndell Park depot. The respondent submitted that the Commission should not be inclined to make an order for reinstatement to a position where the availability of work was only one day a month or even no work for a particular month. Further, it was not work that could be performed on a part time basis because of the 'lack of predictability and the uncertainty of it'. However, as earlier mentioned, it was Mr Lawson's evidence, supported by both the respondent's trip sheets and Mr Blair, that when he was previously on the same restricted duties, and was not completing driving training, he performed deliveries, pick ups and even changeovers. 33 The evidence does show that there were certain driving duties that, due to his medical restrictions, Mr Lawson was unable to perform. This included delivering and loading trailers that required lifting or extensive manual handling and driving the respondent's K104 trucks, which Mr Lawson was not able to access safely. K104's made up 40 per cent of trucks at the Arndell Park site depot, although there was a suggestion that there were other trucks, such as Volvos, that Mr Lawson had difficulty accessing. The issue of allocating trucks was, therefore, raised with Mr Blair, and the following exchange occurred: Q. Did you ever raise with Mr Lawson that you are having any difficulty allocating him a vehicle? A. There were on occasions difficulties, yes. Q. Generally he was not able to be allocated a vehicle to drive? A. By doing a fair bit of moving around and, yes, there was a lot of difficulty but it could be done. 34 Whilst I accept that Mr Lawson was restricted in the range and type of delivery work he could perform, there was evidence to show the type of work that Mr Lawson was able to perform upon his return from his right shoulder surgery when he had medical restrictions similar to those prescribed by the latest certificate (which applied for the period 7 July 2008 to 1 October 2008): Driver training work aside, I performed many hours of other work which fit within my restrictions. First, the company had a substantial amount of what might be called transfer work picking up and delivering trailers. This type of work didn't involve lifting or loading; I would simply hook up a trailer and take it to a yard, either leave it on a dock or elsewhere in the yard and leave it to the warehouse staff to load or unload. I would then usually bobtail (that is, travel in the prime mover without a trailer) back to the Lindsay yard or another yard and repeat the process. We had a number of clients where we didn't do the loading ourselves including TNT, McPhees, Riteway, Samsung, Autonexus, Freedom Furniture, and Schenker. Second, there were a number of sites where the loading was performed mechanically, that is, by forklift or electric pallet jack. In those cases I could load 'pantech' vehicles although I didn't generally load tautliners (which would have required me to lift gates and so on) or flattops (which sometimes involved lifting steel brick angles). We also occasionally delivered timber. I was able to do that work as the timber was carried on a flattop and strapped down so all I was required to do which simply required me to tie or untie the straps. 35 Mr Aird submitted that the work able to be performed by Mr Lawson fell into three categories. The first involved simply dropping off and picking up trailers, which required no lifting or manual handling. Mr Blair's evidence was that there were a dozen 'express sites' where a driver would just drop a trailer off, the sites would load them and a line haul driver would pick them up. Mr Lawson described what was physically required for those deliveries: First, the company had a substantial amount of what might be called transfer work picking up and delivering trailers. This type of work didn't involve lifting or loading; I would simply hook up a trailer and take it to a yard, either leave it on a dock or elsewhere in the yard and leave it to the warehouse staff to load or unload. I would then usually bobtail (that is, travel in the prime mover without a trailer) back to the Lindsay yard or another yard and repeat the process. We had a number of clients where we didn't do the loading ourselves including TNT, McPhees, Riteway, Samsung, Autonexus, Freedom Furniture, and Schenker. 36 A second category of work was where the customer, often with the use of a forklift, unloaded the trailer. Mr Lawson said all that was required when a forklift was used was for him to move boards to the end of the truck once it was unloaded. Mr Lawson believed that unloading by the customer occurred at 80 per cent of sites. Mr Blair disagreed with this and suggested it would be less than 50 per cent. Nevertheless, this was also work that Mr Lawson stated he had performed and was currently fit to perform. In this respect, I note Mr Martin's evidence about a recently introduced policy aimed at combating manual handling issues, which required a greater use of customer assistance at a number of sites, and often resulted in drivers waiting until assistance was forthcoming. 37 The third category was where Mr Lawson used a leverage technique for deliveries that required the use of a pallet jack. On the evidence it became apparent that Mr Lawson was adept at creating techniques by which to perform lifting functions using the jack. There was no evidence, however, that his methods were safe and, indeed, Mr Lawson himself said he had not discussed his techniques with the respondent. 38 Mr Aird submitted that, in addition to the driver trainer function, there were clearly duties available that Mr Lawson was fit to perform and that it would be appropriate for the Commission to make a reinstatement order. In support of this proposition Mr Aird relied on Riley v WorkCover Authority at [102], which he contended: ... provides in strong terms … that the company has to do all that is possible to ascertain the position in regard to available work, make a thorough assessment before any consideration of terminating the employee is made. Clearly on the evidence… the company has made essentially zero attempt in assessing the available work that Mr Lawson could perform or was capable of performing. Assessment of available work 39 In my opinion, the respondent did not make a proper assessment of whether there was work available for Mr Lawson to perform within the limits of his medical restrictions. Nevertheless, based on an assessment carried out, it seems ex post facto, the respondent submitted no such work was available. 40 Undoubtedly, the driver training work was available for Mr Lawson to perform and that work fitted squarely within his medical restrictions. I am satisfied, however, the driver training work, whilst being work that was necessary to be performed, was intermittent and at best only available on an irregular basis depending upon a new driver being employed. It was Mr Blair's evidence, which I accept, that in 2008 there were three or four new local drivers employed at the Arndell Park Depot. This would have involved Mr Lawson in about three or four weeks' work if one accepts there was one week's work involved in training a new driver. 41 Mr Lawson contended that prior to the operation on his left shoulder in October 2007, he was performing a variety of other work including the dropping off and picking up of trailers that required no lifting, deliveries to sites where the customer did the unloading and deliveries that required only the use of a pallet jack. His current medical restrictions, however, are quite limiting in what he may do. He may not do any lifting at all and he may only perform limited driving work. That Mr Lawson may have been doing work previously that exceeded the medical restrictions placed on him (and it appears that, indeed, was the case, with Mr Lawson regularly working up to 50 hours per week), is not a basis for concluding that I should or could ignore the current restrictions. 42 The fact that the driving training work is only intermittent, that Mr Lawson may not do any lifting and that he may only perform limited driving work, seems to indicate that the work Mr Lawson was doing prior to the operation on his left shoulder in October 2007, that is, the multi-function driver trainer/pick-up and delivery role, is not employment that is any longer available on a full time basis. I would expect there would be weeks where no driver training was required. That would then require Mr Lawson to do some yard work but that would have to be work that required no lifting and, therefore, I imagine the availability of such work would be limited. Based on the evidence, driving work would undoubtedly be available that did not involve lifting but Mr Lawson may only perform limited driving work. That means, in my view, that whenever the driver training work was not required it would only be open to the respondent to use Mr Lawson in a pick-up and delivery role on a limited basis. In other words, given Mr Lawson's medical restrictions he could not be used continuously as a driver when he was not performing driver training duties. 43 Whether or not full time employment is available to Mr Lawson in the role of driver trainer/pick-up and delivery work, the respondent has not demonstrated that no work is available for Mr Lawson. I consider that the respondent could reasonably make available for Mr Lawson part time employment as a driver trainer/pick-up and delivery driver that may involve the training of drivers, the dropping off and picking up of trailers that requires no lifting, deliveries to sites where no lifting is required and other work that requires no lifting. 44 The difficulty I have in making any final determination about whether full time work is available and, if it is not, the extent to which part time work is available, is not knowing what Mr Lawson's general practitioner meant by "limited driving" in the medical certificate signed by him on 2 July 2008. But given its ordinary grammatical meaning it must mean that Mr Lawson's driving is to be confined within limits. That is to say, under current medical restrictions Mr Lawson is not available for full time driving duties. Further, I somewhat doubt that Mr Lawson's treating doctor envisaged limited driving as being a combination simply of training and driving in circumstances where the training role might involve only three to four weeks work in a six monthly period. Parties to Confer 45 The most appropriate course, in the circumstances, is for me to make it clear that I am satisfied that Mr Lawson is fit for employment as a driver trainer/pick-up and delivery driver (including yard work), subject to the medical limitations imposed under the terms of the medical certificate signed by Dr Anderson on 2 July 2008. I am also satisfied that the respondent has that kind of employment available. What I am not clear about is whether there is full time work available for Mr Lawson to perform in a combination that caters for his medical restrictions or whether reinstatement should be to a part time position and, if so, what should be the appropriate part time hours of work. 46 The parties are directed to confer as to the basis of Mr Lawson's reinstatement having regard to the terms of this decision. In doing so, it would be appropriate for the parties to agree on the terms of a communication to Dr Anderson explaining the terms of this decision and seeking some clarification on, or assistance in understanding, what was meant by "limited driving" in the certificate dated 2 July 2008. 47 The parties shall report back to the Commission on the outcome of their discussions at 9.30am on Monday 15 September 2008 at which time, after hearing a brief report from the parties, the Commission will make final orders. ________________________________ 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.