NSW Caselaw
Industrial Relations Commission of New South Wales
CITATION: Terminals Pty Limited v NUW, NSW Branch (on behalf of Todd Bell) [2008] NSWIRComm 247
APPELLANT: Terminals Pty Limited PARTIES: RESPONDENT: National Union of Workers, New South Wales Branch
FILE NUMBER(S): IRC 1790 of 2008
CORAM: Walton J Vice-President; Grayson DP; Murphy C
CATCHWORDS: Application for leave to appeal and appeal - Injured worker - Application for reinstatement - Lack of clarity as to orders made - Whether supplementary decision should be taken into account - Decision maker at first instance received into evidence medical material which did not form part of initial application for reinstatement - Whether such evidence was wrongly admitted - Whether the Commission is constrained from receiving additional medical evidence post-dating initiating process - Collaborative work practices of terminal operators within five person teams - Conflicting evidence as to lifting requirements and techniques - On evidence preferred worker fit to carry out pre-injury duties of terminal operator - No appellable error in receiving additional medical opinion evidence - Workers Compensation Act requires Commission to determine question of fitness at the time the application is being heard - Act does not constrain Commission from hearing and considering such evidence merely because it was not the same evidence relied upon in supporting initial application - No appellable error in facts found at first instance - Reasonably open on the evidence - Principles discussed - Held, high degree of self-management among members of terminal operators team - Variety of techniques employed in performance of individual tasks depending on human variables such as physical stature, general levels of fitness, degrees of observance of safe work practices etc - True effect of order made at first instance was to reinstate under s 243(2) - No appellate error - Leave to appeal granted - Appeal dismissed
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