Industrial Relations Commission of New South Wales CITATION: Tiney v Sydney West Area Health Service [2009] NSWIRComm 1045 APPLICANT PARTIES: New South Wales Nurses' Association on behalf of Anne Tiney RESPONDENT Director General NSW Health Department - Sydney West Area Health Service (Blacktown Hospital) FILE NUMBER(S): 1298 of 2008 CORAM: Cambridge C CATCHWORDS: Protection of injured workers - application for reinstatement - no dispute as to reason for dismissal - availability of work of a kind for which the applicant is fit - manifest breach of legislative provisions - reinstatement to kind of employment which may include part time employment by agreement. LEGISLATION CITED: Workers Compensation Act 1987 Industrial Relations Act 1996 CASES CITED: 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 ) Full Commission of Industrial Relations Commission of NSW, [Wright P, Boland J, Connor C], [2006] NSWIRComm 108 (26 June 2006). HEARING DATES: 10, 11, 12 & 13 August 2009 EXTEMPORE JUDGMENT DATE : 13 August 2009 APPLICANT Mr N Dawson, solicitor from Federation Law with Mr J O'Brien from NSW Nurses Association LEGAL REPRESENTATIVES: RESPONDENT Mr I Todd, barrister with Mr S Kennedy, solicitor Solicitors for Respondent TurksLegal DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES COMMISSIONER CAMBRIDGE 13 August 2009 Matter No IRC 1298 of 2008 New South Wales Nurses' Association (on behalf of Anne Tiney) v Sydney West Area Health Service Application by New South Wales Nurses' Association on behalf of its member Anne Tiney for reinstatement of an injured employee pursuant to section 242 of the Workers Compensation Act 1987. EXTEMPORE DECISION [2009] NSWIRComm1045 1 This matter involves an application made pursuant to section 242 of the Workers Compensation Act 1987, (the Workers Compensation Act). The application was made by the New South Wales Nurses' Association (the Association), on behalf of Anne Tiney (the applicant). 2 The application for reinstatement of an injured worker was filed in the Office of the Industrial Registrar on 7 August 2008. The application named the respondent employer as the Director General NSW Health Department - Sydney West Area Health Service (Blacktown Hospital), (the employer). Proceedings in the matter have involved a Hearing conducted over four days, 10 to 13 August 2009. 3 The Commission has been moved to issue an Extempore Decision in view of evidence particularly relating to the applicant's unsuccessful attempt to obtain employment in a position of Part Time Emergency Department Clerk, Westmead Hospital, (the Emergency Clerk position). The applicant was one of approximately 14 "short listed" candidates for this position who were interviewed by a selection committee on 14 January 2009. 4 The applicant is a woman of some 55 years of age who has been engaged by the employer since 1983 as a Enrolled Nurse. The applicant suffered workplace injuries in 1999. Following various attempts to return to modified duties, the applicant was determined not to be fit to return to pre-injury duties as an Enrolled Nurse. In October 2003 the employer withdrew modified duties and a rehabilitation program was commenced which aimed to find alternative work for the applicant. The alternative work sought by and on behalf of the applicant essentially involved clerical and administrative duties that excluded the more physically demanding tasks of Nursing. Strangely, particularly given the size of the employer's workforce, (circa 20,000 employees), the rehabilitation program(s) concentrated on clerical and administrative work with potential employers other than the employer. 5 These rehabilitation programs were unsuccessful and the applicant was dismissed from her employment on 7 December 2007. The applicant was dismissed because she was unfit for pre-injury duties. 6 On 5 May 2008, the Association wrote to the employer on behalf of the applicant seeking reinstatement to work of a kind in areas of clerical/secretarial/ward clerk duties to the level of Administrative Officer Level 2. The employer refused to reinstate the applicant and the Association made application to this Commission giving rise to these proceedings. 7 As mentioned above, on or about 14 January 2009, the applicant was an unsuccessful candidate for the Emergency Clerk position. 8 The applicant was not selected for the Emergency Clerk position and another candidate who was deemed by the selection committee to be more suitable, was engaged. However the applicant was fit for employment of a kind comprehended by the Emergency Clerk position. The Emergency Clerk position is work of a kind to which the applicant sought reinstatement. In addition, the size and diversity of the employer's workforce includes work of a kind to which the applicant has sought reinstatement. 9 It is plainly inconceivable that the employer would not have employment of a kind described as clerical/secretarial/ward clerk duties to the level of Administrative Officer Level 2, available. It should be stressed that "available" in this context does not mean that a vacant position needs to be identified. 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 ) Full Commission of Industrial Relations Commission of NSW, [Wright P, Boland J, Connor C], [2006] NSWIRComm 108 (26 June 2006). However, in this instance, even the more restrictive notion of a vacant position would have been satisfied by the vacant Emergency Clerk position. 10 The evidence in this matter disclosed a somewhat disturbing saga of bureaucratic ineptitude which created an unacceptably inefficient use of public resources and also meant that the applicant has not performed any gainful work since 2003. Essentially, the applicant could have been performing some productive clerical and or administrative work for the employer rather than receive weekly compensation payments whilst "sitting at home" or searching for employment elsewhere. The money paid to have consultant rehabilitation providers regurgitate jargon riddled cut and paste reports would have been better spent on actually engaging the applicant in trial work arrangements in clerical and administrative roles within the employer's diverse and extensive operations. Regrettably, the time and money spent on the defence of this claim has provided a consistent and equally disturbing postscript to the saga. 11 Unfortunately, the applicant's return to work will now be compounded by difficulties caused by the extensive period of time that has elapsed since she was last involved in productive work. 12 It is important to also mention that the applicant's physical limitations and her need to utilise public transport (she does not have a driver's licence), are matters that need to be managed and reasonably accommodated as part of a collaborative approach to re-engagement that requires both the applicant and the employer to make genuine efforts and compromise. 13 In view of the criticisms made of the employer in this instance, some more general comments may provide guidance and assistance. It is important to acknowledge that the Legislative provisions contained in Part 8 of the Workers Compensation Act are entitled "Protection of injured workers from dismissal". This Legislation is designed to provide for benefit to particular individuals, injured workers, who are dismissed from employment. Broadly, the nature of the benefit involves the prospect that an injured worker would not be dismissed as a consequence of unfitness for work as a result of an injury received at work. Accordingly the Legislation provides for the capacity for reinstatement of an injured worker who is dismissed because he or she was not fit for employment as a result of the injury received at work. 14 The provisions of Part 8 of the Workers Compensation Act must be considered as Legislation specifically designed to provide significant protection and even penalty in circumstances where injured workers are dismissed because of unfitness for employment as a result of an injury sustained in the course of their employment. 15 In my view, Part 8 of the Workers Compensation Act says this to employers: If an employee is injured at work you have considerable responsibilities and ongoing obligations to that employee. Primarily, you must not dismiss that injured employee because they have some incapacity arising from the workplace injury. Dismissal would only be permissible in the event that the employee's incapacity from the injury was such that he or she could not, after extensive efforts including provision of potential alternative duties, perform any useful work in any capacity. 16 The dismissal of the applicant, and the employer's subsequent refusal to reinstate, must, upon even the most cursory consideration, likely contravene the overriding intention of the Legislation. Although the applicant had been on protracted rehabilitation programs for in excess of 4 years, the decision to dismiss the applicant completely failed to recognise the responsibilities and obligations conferred on the employer by Part 8 of the Workers Compensation Act. 17 Consequently, the circumstances of the applicant's dismissal and the subsequent refusal of the employer to reinstate, provide manifest basis for the intervention of the Commission as contemplated by Part 8 of the Workers Compensation Act. 18 The provisions of section 243(2) of the Workers Compensation Act provide for reinstatement to "employment of the kind" and not a "position" as is mentioned in the relevant section of the Unfair Dismissal provisions, section 89(1) of the Industrial Relations Act 1996[NSW]. The notion of a kind of employment has been established to be far broader than the notion of a position. Section 243(3) also mentions "…part-time employment or employment in which the worker may undergo rehabilitation." Although section 243(3) deals with circumstances where an employer does not have employment of the kind sought for reinstatement available, it would seem that in this case, the broader notion of employment of a kind should allow for the Parties to reach agreement on a graduated return to full-time employment as part of rehabilitation, or, in due course, agreement on part-time employment. 19 Consequently the Commission is prepared to provide for Orders of reinstatement as broadly sought by the Association on behalf of the applicant. Order 1 is made in terms to provide for agreement between the Parties as contemplated by paragraphs 12 and 18 of this Decision. ORDERS In this matter, for the reasons outlined herein, I have determined that the dismissal of the applicant requires intervention by way of Orders made under Part 8 the Workers Compensation Act. Therefore the Commission hereby makes the following Orders: ORDER 1 The Commission Orders, pursuant to section 243(2) of the Workers Compensation Act, that the employer reinstate the applicant to employment of a kind in areas of clerical/secretarial/ward clerk duties to the level of Administrative Officer Level 2, and in conformity with the applicant's medical restrictions. The details of the kind of employment to which the applicant is to be reinstated may, subject to agreement between the Parties, involve part-time employment and or employment which includes rehabilitation measures. ORDER 2 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. ORDER 3 The Commission Orders, pursuant to section 243(4) of the Workers Compensation Act, that the employer pay to the applicant an amount which equates with the remuneration that the applicant would, but for being dismissed, have received in the intervening period between the time of making application to the employer for reinstatement and reinstatement, less any amounts received as payment in respect of Workers Compensation or derived from alternative employment. This amount is to be paid as soon as practicable, and within twenty one days from the date of this Decision. ORDER 4 The Commission Orders, pursuant to section 246(1) of the Workers Compensation Act, that the period of employment of the applicant with the employer shall be taken not to have been broken by the dismissal. The intervening period between the date of the application by the applicant to the employer for reinstatement, and reinstatement of the applicant, shall be counted for all purposes as a period of employment. oooOOOooo 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.