Construction, Forestry, Mining and Energy Union (New South Wales Branch) (on behalf of Daryl John Bates) and G. James Safety Glass Pty Ltd [2007] NSWIRComm 129

Industrial Relations Commission of New South Wales

CITATION: Construction, Forestry, Mining and Energy Union (New South Wales Branch) (on behalf of Daryl John Bates) and G. James Safety Glass Pty Ltd [2007] NSWIRComm 129

APPLICANT Construction, Forestry, Mining and Energy Union (New South Wales Branch) (on behalf of Daryl John Bates) PARTIES: RESPONDENT G. James Safety Glass Pty Ltd

FILE NUMBER(S): IRC3284 of 2006

CORAM: Sams DP

Application for reinstatement of injured worker - worker medically unfit as glass cutter tradesperson - light duties - worker transferred to office duties - no dispute as to injury or medical certificates - downturn in the industry - need for redundancies - selection process - absenteeism - skills and capacity to learn - s 40 top-up insurance claim - lack of training - whether worker genuinely redundant - meaning of 'substantial and operative cause' in s 95 of the Act - whether employer has a position which is reasonably available - jurisdiction of Commission - transfer of provisions to Workers' Compensation Act 1987. CATCHWORDS: Held; jurisdiction of Commission established - transfer of provisions to Workers Compensation Act no impediment to claim - redundancy has same meaning as dismissal - no authority as to meaning of expression "substantial and operative cause" - dictionary definitions - expression not read down - injury must be primary or principle cause of dismissal or one given the most weight - financial difficulties accepted - genuine need for redundancies - other employees made redundant - position of order checker shared between employees - flaws in selection process - no warning or counselling as to workers' record - s 40 top-up claim not a factor - criticism of failure to notify and consult - breach of Award - failure to honour moral obligations and contemporary industrial standards - injury not the 'substantial and operative cause' of the dismissal - respondent successful in rebutting presumption - application dismissed.