Industrial Relations Commission of New South Wales CITATION: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Azzopardi) and Sutherland Shire Council [2008] NSWIRComm 1080 APPLICANT New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Simon Azzopardi) PARTIES: RESPONDENT Sutherland Shire Council FILE NUMBER(S): 2257 of 2007 CORAM: Bishop C Unfair Dismissal - employee 28 years satisfactory service - workplace injury - light duties return to work - cleared for pre-injury duties - issues as to what were pre-injury duties - placement in alternate positions - exacerbation of injuries - no return to pre-injury duties - employer had no suitable alternate CATCHWORDS: work - terminated - no notice paid in accordance with award - workers compensation payments since termination - reinstatement to pre-injury duties sought or compensation in lieu. Held: termination unjust and unreasonable - not returned to pre-injury duties - such return possible - applicant's position as to pre-injury duties upheld - manner of termination also an issue - entitlement to payment in lieu of notice - reinstatement impracticable - no economic loss since termination - did not seek alternate work - compensation ordered based on notice payment entitlement. Industrial Relations Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 2000 Workers Compensation Act 1987 Antonakopoulos v State Bank (1999) 91 IR 385 Bankstown City Council v Paris (1999) 93 IR 209 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Dept of Corrective Services v Boda (2006) 151 IR 396 Diaz v Sydney South West Area Health Service [2008] NSWIRComm 1034 D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 CASES CITED: Effem foods Pty Ltd (t/as Uncle Bens of Australia) v Urban 91998) 81 IR 341 Henderson v Rural Lands Protection Board (1997) 74 IR 142 IGA Distribution Pty Ltd v Moses (No 2) [2002] NSWIRComm 108 Outboard World v Muir (1993) 51 IR 167 Qantas Airways v Christie (1998) 193 CLR 280 Riley v WorkCover Authority (NSW) [2006] NSWIRComm 108 Sams v Contact Point International Pty Ltd [2001] NSWIRComm 18 HEARING DATES: 12/06/2008, 13/06/2008 DATE OF JUDGMENT: 30 September 2008 APPLICANT: Mr G Golledge Industrial Officer New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union LEGAL REPRESENTATIVES: RESPONDENT: Mr P Newall of Counsell SOLICITORS: Gadens Lawyers DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BISHOP C 30 September 2008 Matter No IRC 2257 of 2007 New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Simon Azzopardi) and Sutherland Shire Council Application by New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union on behalf of its member Simon Azzopardi re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2008] NSWIRComm 1080 1 This is an application by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ("the USU") made on behalf of Simon Azzopardi against Sutherland Shire Council ("SSC") for a remedy pursuant to S.84 of the Industrial Relations Act,1996. Mr Azzopardi was dismissed from his position of Operator/Truck Driver with the Council on the 7 December 2008. He sought reinstatement to his former position or monetary compensation in lieu thereof. 2 The matter was listed for conciliation and directions before Commissioner Connor on the 11 January 2008 at which time conciliation took place. The parties were directed to confer and the matter set down for mention on the 17 March 2008. Further mentions and conciliation took place on the 28 March and 16 April 2008. However as no settlement could be reached between the parties directions were issued pursuant to Practice Direction 17 and the file returned to the Registry. 3 The matter was set down for hearing before the Commission as currently constituted on the 12 and 13 June 2008. 4 At the hearing Mr Colledge, Industial Officer for the USU appeared on behalf of Mr Azzopardi who also gave evidence in support of his witness statements as filed (Exhibits 1 and 2). 5 Mr Newell of Counsel, with Ms Dent, Solicitor, appeared on behalf of Sutherland Shire Council and called the following witnesses (who had all filed witness statements): Manjeet Grewel - Group Manager, Engineering Operations, SSC (Exhibit 4) Robert Hamilton - Plant Manager, SSC (Exhibit 6) Robert Mathis - Manager, Civil Operations SSC (Exhibit 7) Background and Chronology - based on the transcript and evidence filed. 6 Sutherland Shire Council is a self insurer for the purposes of workers compensation. 7 Prior to his termination, Mr Azzopardi was employed as an Operator/Truck Driver with the SSC. He held an MR Class licence and drove an 8 tonne truck (L/49). He held no other relevant licences for other plant operated by the SCC. He had some 28 (twenty eight) years' service and had an unblemished work record. He is 63 years of age. 8 The Job Description for the position of Operator/Truck Driver was annexed to Ms Grewal's witness statement (Exhibit 4 - D). Mr Azzopardi identified his signature on the document but maintained he had not seen the job Description. It was signed off as "approved by Director" on 10/12/03. 9 In mid 2004 (28/6) Mr Azzopardi sustained an injury at work when he slipped off his truck whilst checking a load, twisting his knees and jarring his neck. The injury was reported but a workers' compensation claim was not lodged until the 8 February 2005. He had minimal time off work. He continued to work until his condition was assessed as requiring surgery to his left knee which was performed on 1 March 2006. This was when he ceased work. It was also necessary for him to have further surgery on the knee in late March 2006. 10 Mr Azzopardi returned to work on light duties on the 18 April 2006, working at the Sydney Road project. It is standard practice for the SCC to assign employees on rehabilitation programs and working light duties to the Sydney Road project. He continued on light duties for the rest of 2006 and early 2007. From about July 2006 to mid March 2007 his WorkCover Medical Certificates from his treating medical practitioner, Doctor Patterson, indicated that he was fit for suitable duties specified as being "4hrs driving per day. Smaller truck & duties other than driving". 11 In January 2007, Ms Grewal held the position of Manager, Civil & Parks Operations. She has held her current position since July 2007. 12 In late January 2007 she was responsible for reviewing, inter alia, workers compensation statistics in relation to employees within the Engineering Operation Group. In reviewing a report on employees currently on workers compensation in the Civil Operations unit (a unit within the overall Group), Mr Azzopardi was identified as an employee subject to medical limitations due to a compensable injury. She deposed that she "noted that Mr Azzopardi had been having ongoing medical conditions for about the past three years and there had been difficulty in finding him suitable work within SSC." 13 The undated report (Exhibit 4 - A) noted that he had "minimal time off work until further knee pain required specialist assessment." It noted his return to work on light duties at Sydney Road and that he was then certified fit for normal duties in regard to his knee but was limited by neck pain and accordingly continued to work at Sydney Road. The report then went on to note: "At his review 14.7.2006 the doctor indicated Simon could drive a truck for up to four hours per day. The balance of his day was taken up with duties around the Store and Depot. These duties have continued to date and an accredited Rehabilitation Provider was requested to assist with the return to work process. The Provider has had discussions with the GP and specialist and it has been recommended that Simon be placed on permanently modified duties in view of his neck condition. Further discussions were scheduled by the Provider with Council to ascertain Simon's future direction. A WorkCover certificate was issued indicating Simon was to perform permanently modified duties." 14 However for logistical reasons, (impracticality of not being unavailable for more than 4 hours' driving), Mr Azzopardi only performed administrative functions at Sydney Road (monitoring truck movements, directing traffic etc.). 15 In February 2007, further clarification was sought by the Rehabilitation Provider as to Mr Azzopardi's medical restrictions and Ms Grewal also enquired of Mr Mathis as to whether he could work within the maintenance crew. 16 On the 24 March 2007 Mr Azzopardi provided a WorkCover Certificate which indicated that he "may return to normal truck driving duties" from 24 March to 27 April, with further review on 27 April. There were no other medical restrictions noted. The further WorkCover Certificate of 27 April, certified Mr Azzopardi as fit for "pre-injury duties" ("normal hours and normal days) until the 31 May 2007. 17 Mr Azzopardi deposed that he told Dr Patterson exactly what his duties were as a truck driver. 18 Mr Azzopardi returned to driving the 8 tonne truck L/49, which he said he drove for some four weeks. He attached extracts from his work diary (Exhibit 2 - A and B) for the dates 26/27 March and 23/24 April respectively. Ms Grewel disputed that he returned to such duties for that period of time deposing that he only drove the truck for 1 to 2 weeks and was then re-allocated to the maintenance section of the Civil Works section. 19 Ms Grewel deposed that this had followed her discussions with Mr Azzopardi (and her enquiry of Mr Mathis) which were confirmed by letter dated 30 March 2007. 20 Mr Azzopardi however maintained that Ms Grewel advised him that he would be transferred to a position within the maintenance and restoration team on 30 April 2007. 21 Ms Grewal also disputed that was Mr Azzopardi was ever allocated to a specific truck. She deposed that "all drivers in the engineering operations division were expected to be ready and available to drive or operate any vehicle or plant assigned to them". Mr Hamilton also deposed that drivers were not allocated a specific vehicle or plant and went on to say that "from a practical perspective, often drivers are allocated a specific vehicle or plant as it results, in my experience, in the employee maintaining the condition of the vehicle or plant". 22 Mr Azzopardi maintained that when he sought an explanation for the reason for the transfer he was eventually advised by Mr Mathis and Mr Hamilton that the vehicle he had been operating was to be sold and the position would no longer exist. 23 Both Mr Mathis and Mr Hamilton denied telling Mr Azzopardi the truck would be sold and his position no longer exist. Mr Mathis deposed that he explained to him that "his medical restrictions precluded him from driving large vehicles and that at the time there were was no need for a driver of a large truck." 24 Mr Hamilton deposed that he indicated to those present that as Mr Azzopardi was now working in the maintenance crew that the truck he had previously driven could be returned and they had little demand for that particular vehicle. He recalled saying words to the effect of "Simon is now working with the maintenance crew. As he used to drive an 8 tonne truck one option would be to downsize Simon's truck as we no longer need that truck." 25 Mr Azzopardi deposed that the tasks associated with the position in the maintenance and restoration section were different from his pre-injury duties and he was required to use a heavy crowbar and sledgehammer to break up concrete paths so that damaged sections could be replaced. This type of work exacerbated his injuries and resulted in him being absent from work. 26 A further WorkCover certificate was provided to SCC on 8 May indicating "Mr Azzopardi's condition is worsened by his labouring duties", imposing a lifting restriction of 10 kgs, and noting "cannot do concreting ok to drive" with a further review on 31 May. 27 On 6 June, SCC required Mr Azzopardi to attend its appointed doctor, Doctor Malone who subsequently reported that he was fit to drive a truck but was not fit for a full range of labouring duties. 28 From 10 June to 17 June he was allocated relief driving duties for the maintenance foreman but sustained an injury to his right shoulder which resulted in an incident report. 29 There were further discussions between Ms Grewal, various relevant SCC officers and the Rehabilitation Provider and Mr Azzopardi as to a return to work plan for the month following the 25 June in the position of "Driver/Labourer - tree unit and landscape team" . The meeting notes indicate that Mr Azzopardi raised the type of work he would not be able to undertake (use of sledgehammer, crow bar, jackhammer etc). 30 The Return to Work Plan noted his pre-injury job title as "Driver/Labourer - Civil Works." (Exhibit 4 - S). Mr Azzopardi deposed that this plan was not implemented. He had been stood down until 25 June, returned to work driving the small truck and on 2 July he was "back on the big truck doing my pre-injury duties". 31 However Ms Grewal also deposed that from 18 June to 12 October Mr Azzopardi was allocated duties in the role of a third person of a two man crew driving trucks and light labouring duties. 32 Mr Azzopardi deposed that in this position he only performed labouring duties. 33 The Rehabilitation Progress Report for the period 23 May to 25 June (Exhibit 4 - T) noted the continuing medical advice from Dr Patterson and the new advice from Dr Malone that he was not fit for the full range of labouring duties. He was certified as fit for pre-injury duties as a Driver/Operator which was to be trialled for one month from the 25 June. 34 The Rehabilitation Progress Report for the period 25 June to 27 July (Exhibit 4 - U) noted that Mr Azzopardi was "not happy" as he felt he was performing "99% labouring duties" and not his pre-injury role. There was to be liaison with his treating doctor over the uncertainty regarding his pre-injury duties and a meeting to clarify and discuss this on 1 August. 35 Ms Grewal deposed that at this meeting no concerns were raised by Mr Azzopardi nor by Mr Mathis as to his ability to manage the various duties. 36 The Rehabilitation Closure Report for the period 28 July to 24 August (Exhibit 4 - V) noted, "Rehabilitation Goal - successfully achieved". Current certification was "fit for pre-injury duties" and he was to be monitored "performing his normal role". 37 On the 2 October 2007 Ms Grewal received email advice from SCC's Workers' Compensation Officer (Mr Coombs) about correspondence from Mr Azzopardi's Solicitors asserting that he had a compensable permanent impairment in relation to his neck and knee. The report indicated that he would not be able to do a lot of a heavy lifting, walking up and down stairs, and similar activities. Mr Azzopardi's statement also claimed these conditions stopped him from kneeling or squatting fully and that he had difficulty negotiating stairs. 38 Mr Mathis also advised Ms Grewal by e-mail that same day, that due to the difficulties Mr Azzopardi stated in his workers' compensation documents in relation to kneeling, squatting and negotiating stairs, that in order to drive Mr Azzopardi would need to entry and exit from larger trucks which would go against these restrictions. 39 Mr Azzopardi deposed that he "had not reported to Council at any time that I had trouble getting in or out of any vehicle." 40 Ms Grewal deposed that she did not see the Solicitor's correspondence or the report but, acting on the email advice she had received, she then in turn advised by email on the 3 October that SSC would need to remove Mr Azzopardi from his present duties as they presented an unsafe workplace based on the advice from his specialist. 41 By further email of 8 October Ms Grewal directed that a Personnel Officer of SCC contact all SCC managers seeking suitable duties for Mr Azzopardi. That contact (by email) also explained the permanent restrictions applying to Mr Azzopardi. 42 On 8 October Ms Bowerman sent out the following e-mail (Exhibit 4 - X): "Hi all, I am seeking permanent suitable duties for a staff member that is currently employed in the Civil Works Unit. The individual has been given permanent restrictions in relation to: · heavy lifting · walking up and down stairs · kneeling · squatting In light of his restricted duties he is unable to perform any outdoor type operational work. As such I am seeking suitable duties which, due to his restrictions, need to be office duties. The individual has been an outdoor worker throughout his 28 years with Council and would need some instruction and assistance in learning new skills. Please note - if you require the use of stairs to access your work area then you will not be able to provide suitable duties. As such this e-mail will apply to the administration building, Kirby building or any other area that either has no stairs or lift access. If you think you can provide permanent suitable duties then please contact me as soon as possible to discuss. I would appreciate any opportunities by COB Wednesday 10th October." 43 On 9 October Mr Azzopardi was again sent home as Mr Mathis considered there was no suitable work available for him at the depot. Ms Grewal was advised of this action by email. 44 In turn on that day, Ms Grewal advised Mr Mathis that a basic Level 2 Data Entry position was available and that it would be appropriate to meet with Mr Azzopardi to explain this position. 45 A meeting with Mr azzopardi was arranged for 18 October. However the meeting did not occur as Ms Grewal was subsequently informed by the USU Delegate that Mr Azzopardi had suffered what was described as a 'partial nervous breakdown' and would be off work on sick leave for three to four weeks. 46 On 19 October, Mr Azzopardi's Solicitors, White Barnes, provided a supplementary report from Dr Marnie indicating he would not be able to do a lot of heavy lifting (avoiding lifting of 20 kgs or more and on a repetitive basis), clarification as to the reference to walking up and down steps and stairs which was qualified by stating he would be able to do 'occasional stair climbing but would be unfit to do it on a repeated basis ie. for a number of times each hour of the working day'. 47 On 25 October a further meeting was held with Mr Azzopardi (and his USU delegate) to discuss the outcome of the search for a suitable position for him in accordance with his permanent restrictions. Mr Azzopardi provided a revised letter from Dr Patterson explaining the restrictions in similar terms as clarified by Dr Marnie. 48 Ms Grewal advised Mr Azzopardi that she would review the information presented, consider the medical advice and range of work available in several operations and other areas of SSC. Mr Azzopardi remained at home on full pay. 49 The USU Delegate Mr Bowering also made representations on behalf of Mr Azzopardi and there were email exchanges between Mr Bowering and Ms Grewal as to the way Council had handled the matter, the issue of the truck in question (still in operation) and SCC's concerns about obligations to place Mr Azzopardi in a safe working environment. 50 In early November an administrative position as Storeman was identified as a possibility. Ms Grewal directed that the Rehabilitation Service provider conduct workplace assessments on that position and the position of Driver/Operator in the parks division. The outcome of those assessments was that the position of Driver/Operator was assessed as suitable as there were no difficulties identified to preclude Mr Azzopardi from performing the duties, as all tasks fell within the medical restrictions outlined in Dr Marnie's report. (Exhibit 4 - CC). The position of Storeman, however, was identified as being unsuitable as there were difficulties identified which would preclude him from the duties associated with the position (Exhibit 8 - DD). 51 On 5 November Mr Azzopardi commenced as a Driver/Operator within the Parks Operation Unit of the Engineering Operations Group. 52 Mr Azzopard deposed that working in this position aggravated his neck injury when he was required to use a brush cutter as the strap put too much pressure on his shoulders and neck. 53 Ms Grewal subsequently received a medical certificate from Mr Azzopardi dated 15 November in which Dr Patterson diagnosed that he was suffering from a cervical spine condition and was unfit for work from 15 November to 22 November. The medical certificate provided on 22 November indicated that he was unfit for work until 29 November and also indicated that in order to resume work after 29 November he would not be able to work in Parks Operations. 54 Around the 22 November a further medical report concerning Mr Azzopardi's condition was provided to SCC by Dr Bodel. Mr Azzopardi deposed this report "also supported my ability to return to my pre-injury duties with only minor amendments to some tasks associated with the pre-injury job description. Amendments that I believed would have been easily accommodated within the work team that I would have returned to." 55 Dr Bodel's report (Exhibit 1- 6) finally noted: 2. What restrictions, if any, should now be placed upon the worker's ability to perform: · His full pre-injury duties as a driver; This gentleman should be capable of his full pre-injury duties as a driver. I note that this assessment is based on the history given by Mr Azzopardi in regard to the nature of his pre-injury duties. The work that he was asked to do by Council appears to have been a modification of those pre-injury duties and was much heavier than his normal pre-injury work. · Duties generally on the open labour market. This gentleman will have difficulty with unrestricted labouring work on the open labour market. In particular he would have difficulty with heavy jack hammering, using heavy sledge hammers or crowbars because of the neck injury. He should be able to tolerate moderate manual tasks from the point of view of both his neck and his left knee injury. 56 In relation to the long-term prognosis and with particular reference to the prospects of the worker remaining on normal duties in the long term, Dr Bodel went on to indicate, (after noting his age) that "with reasonable management of his duties, in particular a return to his original pre-injury duties, he should be able to manage and be productive, until normal retirement age." 57 In relation to the report, Ms Grewal deposed that "Mr Coombs observed that the doctor may not be aware of the climbing involved in and out of the truck and clutch usage, and that such a position would require an amount of neck usage as well." The holding of a case conference was recommended. 58 On 22 November Ms Grewel advised Mr Coombs by email that in the light of all the conditions and restrictions applying to Mr Azzopardi there was no work available for him that involved driving a truck with no steps as no such truck existed; that truck driving was involved in the positions of Driver/Operator or Driver/Labourer and Engineering Operations had no suitable work in a safe work environment to offer because of the medical restrictions. It was recommended that further e-mails be sent to SCC Managers and Directors to see if any suitable permanent work was available taking into consideration Mr Azzopardi's medical restrictions and skills. 59 On 29 November 2007, a further WorkCover certificate was provided indicating Mr Azzopardi was suffering from "exacerbation of his cervical spine condition" and was unfit for work from 29 November to 30 November and would be fit for suitable duties from 3 December to 31 December able to lift up to 10kgs but could do "no heavy labouring work". 60 Ms Grewal deposed that those restrictions made his current position of Park Worker unsafe. 61 On 4 December Ms Grewal met with officers of SCC in an attempt to identify suitable employment within her Group. Ms Grewal deposed that all earlier attempts had failed and that Mr Azzopardi was precluded from working in the Parks division due to his medical restrictions. An available position in garbage collection was identified but Ms Grewal did not consider the position appropriate due to the starting time and the requirements of the position. 62 Ms Grewal deposed that at this point she concluded that there were no suitable positions available within Engineering Operations for Mr Azzopardi. 63 Mr Azzopardi was advised by telephone on 4 December that his employment with SCC would be terminated effective on Friday 7 December and this was subsequently confirmed by correspondence dated 5 December. 64 The letter of termination from Mr Peter Evans, Manager - Personnel, on behalf of the General Manager, indicated as follows: "I refer to discussions held with your Manager Manjeet Grewal yesterday in relation to your employment with Council. This letter is to formally notify you of the advice that, given the ongoing medical restrictions you have provided, the reaggravations of your injury to various body parts over the period of your claim, and the inability of the Council to provide due work that does not reaggravate your injury, I regret to inform you that your services with Council will cease effective Friday 7 December 2007." 65 The letter went on to indicate that the Rehabilitation Provider had been asked to liaise with him on further case management of his claim and attempt to find him alternate roles outside of the Council, indicating that "the insurer also expects you to actively participate in finding alternate work that does not re-aggravate your injury" 66 The letter went on to note: "I am sorry that your time with Council has ended in this fashion, however, trust you appreciate the efforts that have been made by Council management to find you alternate roles within its structure, such as the recent Driver/Operator in the Parks section. Unfortunately, this attempt at suitable work led to a further certificate where you are precluded from performing any manual labouring work which makes it difficult for Council to assign new tasks. However, the Rehab Provider has had success in finding alternate work for claimants and I hope this occurs in your situation. I have instructed pay office to calculate your leave entitlements and make these payable in the next available pay period." 67 Mr Azzopardi was not paid any payment in lieu of notice on termination that may have arisen pursuant to either the Enterprise Agreement covering his employment or the Local Government (State) Award. 68 Arising from the conciliation proceedings before Commissioner Connor, two further medical assessments were made by Dr Rosenthal in February and April. 69 The February report (Exhibit 1 - 8) noted that in regards to his overall fitness for work he required ongoing restrictions and needed to avoid any jobs involving recurrent squatting or kneeling, avoiding lifting over 20 kgs on a repetitive basis as well as jobs which involved pressure on his neck such as wearing strapping around his neck. Jobs involving recurrent flexion, extension and rotation of the neck such as sledgehammering should also be avoided. Dr Rosenthal indicated he did not have a job description for the pre-injury truck driving job but said that if he was required "purely to drive the 15 tonne truck then he believed he was fit and capable of doing this", provided that the job fitted within the restrictions that he had mentioned. 70 Dr Rosenthal had been provided with documentation on a range of positions and indicated that there were some jobs that could be performed (casual cleaner, building cleaner, casual driver, casual mechanical broom operator etc.,) but also indicated the jobs that would fall outside the restrictions mentioned and probably not be suitable. He also indicated that "despite his medical conditions he remains fit for a large range of positions." 71 Dr Rosenthal's April report (Exhibit 1-9) addressed specific tasks of the labouring requirements of the Operator/Truck Driver. Some tasks were identified as being within his capabilities subject to certain provisions (e.g. no kneeling) and in summary he indicated as follows;- " Thus, there are some aspects of the labouring activities that cause Mr Azzopardi aggravation to his neck and Knee. It is up to Council to determine whether they can provide work which restricts those activities that are likely to aggravate his neck and knee condition." 72 Mr Azzopardi sought reinstatement to his former position, or alternatively re-employment as a Truck Driver or alternatively monetary compensation of 26 weeks pay in lieu thereof. 73 Ms Grewal deposed that within her direct knowledge there were not any positions the duties of which Mr Azzopardi could perform within his medical restrictions and being aware of the Council's responsibilities within the OH & S Act, "was not prepared to place Mr Azzopardi in a position in which his health and safety might, according to his treating doctors' certificates and reports, be compromised." 74 At the time of his termination Mr Azzopardi was in receipt of workers compensation payments and those payments continued at the rate prescribed by the Enterprise Agreement for the following six months at which time his weekly payments dropped to the statutory rate of $641.25. The Evidence 75 Mr Azzopardi essentially maintained firstly, that he was capable of returning to his pre-injury duties as a Truck Driver and that the alternate injury management placements made by SCC only further exacerbated his condition as the work was heavier or more physically demanding than he had previously undertaken. Secondly, he maintained that when he did carry out those pre-injury duties for the short period of time in March-April 2007 (the one month period) there were no problems and that he should have been left in that position. He was never given any explanation as to why he could not continue in that position, only that they were going to sell the truck and his position wouldn't be required. 76 He maintained that prior to his injury, driving the truck took up 99.9% of his duties. The only labouring work he did was rolling the cover up and undoing the tailgate. The type of labouring duties he did before his injury was not what he would call heavy labouring, it was light labouring. They might get him to put out a couple of barricades or red and white plastic power webbing. 77 He said that when he was driving on construction work he would take material to landfills and bring material back to the gangs. The gangs had two or three labourers. When they were finished they were told not to stand around because ratepayers would ring up the office and say there was a truck that hadn't moved for two or three hours so then he would not work as a labourer but return to the Depot and cart rubbish from Ethel Road to Lucas Heights landfill or Sydney Road to Kurnell landfill. He was a truck driver not a labourer. 78 When Mr Azzopardi provided the medical certificates in May that stated he couldn't use the sledgehammer and the crowbar because it affected his injury, he agreed that at the time he was told he should work at a pace that suited him and didn't need to go at breakneck speed. He said that by then the damage had already been done. 79 Mr Azzopardi was cross-examined about the documents provided to the Workers Compensation Commission in 2008 in support of the claim he was making under the Workers Compensation Act. He ultimately agreed that at that time he said he had a permanent impairment to his knee and neck. That was true at the time but it had now improved. Whilst it was true he had said that he couldn't kneel or fully squat or climb stairs, that had now improved. It had improved slightly in December 2007 compared with October 2007. 80 Mr Azzopardi acknowledged that he had been in receipt of workers compensation payments since his termination - six months at full wages and after that $621.45 per week and that the latter payment was still being made. He said that the reason he did not include that information in his witness statement was because "I wasn't asked." If he had been asked the question he would have said that he was being paid. 81 Mr Azzopardi also disputed that there were four steps to get into the truck, he maintained there were only two. On being shown a photograph of the truck (Exhibit 3) he agreed that built into the moulding of the chassis there was a third step and that it looked like a step. He maintained that he didn't use that step, he would just go "1, 2, straight in, yes". He would use the two handholds near the door to pull himself in. 82 Mr Azzopardi maintained that his work never involved climbing stairs only the steps into the truck and that Dr Marnie misunderstood what he said. 83 Mr Azzopardi also said that there were differences between the jobs involved with the construction crew compared to the maintenance crew. The construction crew was 99.9% driving whereas with the maintenance crew it was 99.9% labouring. He would not be able to do heavy labouring work with the maintenance crew. 84 When he returned to work after his injury he worked at Sydney Road as part of his rehabilitation on light duties. He did not drive a truck then. When he came out of Sydney Road he returned to his pre-injury duties driving the truck with the construction crew. The only two jobs he was offered by Council aggravated his injuries. Those two jobs were maintenance and parks. All he wanted to do was carry out his pre-injury duties and he would have been happy. 85 Mr Azzopardi acknowledged that Council had a responsibility for both his and all employees' occupational health and safety and that the Council has to act on the basis of what the doctors said he could and couldn't do. 86 Mr Azzopardi maintained that what he couldn't understand was that his doctor cleared him to return to his pre-injury duties and if he had stayed on his pre-injury duties he wouldn't be here now, he could carry out those duties. He maintained he never told his doctor he couldn't carry out labouring work but did tell his doctor his pre-injury duties were 99.9% truck driving with a little bit of labouring. 87 He did not consider that Council fulfilled its OH & S obligations when it placed him in the two positions in maintenance and parks. 88 Mr Azzopardi explained that there was some light maintenance duties he could do such as raking the soil, helping form foootpaths up, giving them a hand with forming footpaths. He could measure the width, do a little bit of light screeding of the concrete that type of work but not using a sledgehammer. 89 Ms Grewal's evidence essentially covered the various steps taken by Council to find alternate positions for Mr Azzopardi, the medical reports and certificates and the various restrictions placed on Mr Azzopardi. This has substantially formed the basis of the background and Chronology above. 90 Ms Grewal acknowledged that at the time when Mr Azzopardi had restrictions of driving 4 hours per day on a smaller truck and duties other than driving that he could have undertaken the role of being in a civil maintenance crew. She agreed that four hours continuous driving would not have been required. 91 Ms Grewal was not aware of any job description that might have applied to Mr Azzopardi prior to the Driver/Operator job description he signed in 2003. 92 Ms Grewal was not aware of the practice concerning allocating plant. She knew the expectation was that they had a pool of drivers, a pool of plant and a pool of trucks and depending upon the nature and need of the job, a driver, allocator and a piece of plant will be married together to meet those needs. 93 She also maintained that expectations in relation to the labouring duties in both civil construction and civil maintenance would be the same in that you would be expected to do heavy manual work in both. 94 Ms Grewal was not certain just what refuse Mr Azzopardi would collect from their Depots. 95 Ms Grewal also maintained that Mr Azzopardi did not return to his pre-injury duties. 96 Ms Grewal acknowledged that the maintenance crew position that Mr Azzopardi went to in April 2007 was never assessed for suitability for his injuries. At that time they were being guided by the medical certificates and the knowledge of the work by the staff. She considered that he could perform any of the duties of the maintenance crew one. 97 She was not aware of what work he was involved in 2004, she wasn't involved in the department at the time. It was not her understanding that his pre-injury duties would have been associated with working in construction. However she was not aware of what labouring duties he was doing pre-injury. 98 She considered that because Mr Azzopardi had already been trialled in a number of jobs in the Engineering Operations Group, in addition to the WorkCover Certificates, the view was formed that there was no safe employment about that was available to Mr Azzopardi at that time. 99 There was cross examination of Ms Grewal in relation to the medical reports and certificates. She had questioned whether Dr Patterson understood what Mr Azzopardi's pre-injury duties were and therefore whether he could return to them. She agreed she did not send Dr Patterson a job description however he was invited to a case conference in June with other stakeholders and Mr Azzopardi to clarify the issue. Unfortunately Dr Patterson did not attend. They worked on the assumption that he was Mr Azzopardi's treating doctor and that he too would equally ask Council for this information if he felt it was salient and material. 100 In relation to Dr Malone's report she was not aware whether Dr Malone had been given a job description and did not know where the term appearing in the report of "driver/labourer" came from. It was acknowledged that Mr Azzopardi had always described himself as an "Operator/Driver". 101 On the issue of whether an employee only worked in construction or only in maintenance, she indicated that the current situation was that labour was pooled. When working in an area of road making there were large projects and small projects which may occur in construction or maintenance. The skills were readily transferable and resources were therefore pooled. You could work at the job description (Exhibit 4 - E) in construction or maintenance works. 102 Ms Grewal's evidence essentially gave more specific detail in relation to the Background and Chronology above concerning the medical reports and actions of Council arising from those reports and certificates, including the need for further reports to attempt to clarify the situation. 103 She continued to cause reports to be produced and analysed and assessed these against Mr Azzopardi's medical restrictions when the matter came before Commissioner Connor. 104 When considering the decision to terminate Mr Azzopardi, his lengthy service with Council was taken into consideration. Ms Grewal could not say that there had ever been a time when Council had a position which existed and was suitable to Mr Azzopardi subject to the medical restrictions that appeared to be operating on him and that was still the position. 105 Mr Hamilton's evidence went to his involvement with Mr Azzopardi both prior to his injury and in the period of 2007 in relation to WorkCover certificates he was provided by Mr Azzopardi. 106 He deposed that from his observation of Mr Azzopardi over the years he was someone who would not sit still and watch while others worked around him. He had never heard any reports that Mr Azzopardi wasn't pulling his weight or wasn't helping the gang. He was always helping the gang when Mr Hamilton went there. He gave examples of the sort of work he had personally observed him carrying out. One such example was with a crew building a skateboard and ramp up at Engadine and he saw him helping lay the formwork and helping with the concrete. 107 The Driver/Operators were expected to get out and help the crews if they weren't driving their vehicles. 108 Mr Hamilton had been involved in the preparation of the job descriptions and having all staff sign off on them. That occurred in around 2000/2001. That was basically the first real job description that the men he looked after had. The reason was to have a system where the men knew exactly what their role was, what they had to do and was tied up with the performance system. Mr Hamilton carried out a yearly appraisal on the men and if they got over a certain score in the appraisal they received a bonus. The structure started at a Driver/Labourer level and went all the way to a Senior Operator. 109 He maintained that Mr Azzopardi understood that under this classification system he was a Driver/Operator when he eventually signed it. When the job description was first instigated he would not sign it as he didn't see he had to and it took Mr Hamilton three years to convince him there was nothing untoward in it, that it was exactly what they were doing and it was just formalising what they did. When Mr Hamilton did the evaluations Mr Azzopardi scored over the mark he had to get in order to get a bonus. However he told him he would not get a bonus because he hadn't signed the job description and shortly after that Mr Azzopardi approached him to sign it. 110 Mr Hamilton said he sat down with him and they went through each section and he explained each section and they signed off on it. Mr Azzopardi was very cautious about what he signed which was why it took so long to get him to sign it. 111 Mr Hamilton deposed that any drivers in the Civil Operations Division may be allocated to drive any vehicle or operate any plant for which they were appropriately qualified to drive or operate. They were not only allocated to any specific vehicle or plant and regularly drove or operated more than one vehicle or plant at any given time. However from a practical perspective often drivers were allocated a specific vehicle or plant as it resulted, in his experience, in the employee maintaining the condition of the vehicle or plant, keeping it clean, attending to defects etc. To the best of his knowledge Mr Azzopardi was licensed only to drive trucks. 112 Mr Hamilton indicated that the majority of the time Mr Azzopardi worked on construction sites because that was where the majority of the work was. If he wasn't on a construction site he was carting out of the bin down the bottom yard where they kept the road rubbish (collected from street pick ups) or stockpiles placed there by Parks and Gardens. 113 He confirmed that he had instructed drivers on construction that if there was no work at the site and they weren't needed they were to go back to the Ethel Road Depot and take loads to landfill. He said that Mr Azzopardi was one of those drivers who would show initiative and if on a site with nothing to do and not needed, would go down and start carting out one of those various areas. 114 In relation to the issue of selling the truck raised by Mr Azzopardi, Mr Hamilton said that in his position he was always forward planning with plant and equipment. He had had a discussion with the Manager of Civil Works and his own manager (the Fleet Manager) and they were looking at downsizing the fleet because the work wasn't there, budgets had been cut and gang sizes dropped. So there wasn't the work required for trucks. 115 It was his thinking at the time that if they were going to move Mr Azzopardi to driving the smaller truck because of his injury, his comment was that there was an option to get rid of the truck. He meant that they could sell the truck or pick the worst truck in the fleet (although he said he didn't say all this it was only what he was thinking) and there was no impact on the other staff because Mr Azzopardi was moved to another area to drive another vehicle. 116 The truck that Mr Azzopardi drove stayed in the area. He sat down with the Fleet Manager and they went through the maintenance records of all the trucks and that truck wasn't one of the bad ones because it had been looked after. They sold another vehicle and kept L/49. Not long after that they bought a trailer for the mini excavator and it was hooked up to that truck to carry the mini excavator which it still does today. Another worker would operate the mini excavator. 117 He acknowledged that prior to Mr Azzopardi moving into maintenance he drove that truck L/49. 118 The only difference concerning that truck comparing Mr Azzopardi pre-injury job and the current position was that it now had the excavator on the back. They were always changing work practices. They had to move with the times. 119 Mr Hamilton agreed that the majority of the duties of the position would have been driving the truck. In a perfect world it would have been 100% however if that wasn't required and he couldn't find any effective work for the vehicles somewhere else on another site doing something else the men could do labouring duties and that was why it was put in the job description. 120 Mr Hamilton said that to the best of his recollection in April 2007, Mr Azzopardi drove the truck for a period of approximately 1 to two weeks not four weeks that Mr Azzopardi said, however he said "it could have been wrong". After Mr Azzopardi was moved off the truck another driver was put into that position on that truck the next day. 121 In the period that Mr Azzopardi was actually driving the truck Mr Hamilton was not aware of any problems in relation to Mr Azzopardi's performance. 122 Mr Hamilton also gave information and examples about the work performed by maintenance crews and construction crews. He said that in his opinion, based on his knowledge of the work and Mr Azzopardi's restrictions, that on the big truck he could not have done the labouring duties on maintenance because they did not do light work. He was told when he went there to watch his neck he wasn't expected to overdo it. 123 He did not consider that SSC had any jobs now that involved just driving. 124 At the time of Mr Azzopardi's employment he thought that Council had eight 8 tonne trucks, two or three baby tippers and a couple of five tonne trucks. 125 The Commission made observations to Mr Hamilton about Mr Azzopardi's height and slight build. Mr Hamilton said that generally it would have rarely happened that sledgehammers would be used to get footpaths up. That would be done by mini excavators or backhoes. It might only be where there was a small patch of footpath that a sledgehammer would be used. He said it was "all about match fitness more than size. If you'd been doing a job for years and you know how to do it properly, you know what precautions to take and how to protect yourself." 126 Mr Mathis has been with SCC for 27 years and has observed many Driver/Operators and Driver/Labourers perform their work. The difference between the two classifications was that the position of Driver/Operator allows the person to operate plant in addition to driving vehicles if the appropriate licence or ticket is held. 127 He deposed as to the range of duties to be performed by Driver/Operators including how loads were covered on both the larger and smaller trucks. He indicated that the physical requirements included entry and exit of the cabin of the vehicle. In relation to the 8 tonne truck the driver would need to climb 4 large steps. The first step is about 600mm from the ground and the steps thereafter are about 20mm each. 128 All drivers were required to carry out labouring tasks in addition to their driving duties and those duties constitute part of, or all of, the day, depending on the truck driving requirements of the division. He gave examples of such labouring duties - erection or demolition of traffic control signs, barricades and barrier tape, raking, shovelling, digging with a shovel, or mattock, erection and demotion of concrete formwork, placing, levelling and screeding concrete, laying of turf, cleaning out surface drainage pits and laying stormwater pipes in trenches. 129 He agreed that a person with a restriction of not lifting more than 10 kgs and not being able to do any heavy labouring work that may well affect the capacity to do the job. 130 Mr Mathis deposed that in his view and based on his knowledge of the physical requirements of the jobs in his unit (the Civil Operations Unit) at SSC, it would be impracticable to reinstate Mr Azzopardi to any position within that Unit given his current medical status. Additionally it would be impractical to create or amend an existing position in the Unit so that it encompassed only driving duties. This was because the Unit needed a multi-skilled workforce able to both drive any vehicle or operate any plant and perform labouring duties as required in order to function efficiently, economically as well as operate in an economic and efficient manner. It would not be economic to have employees performing either only driving or labouring duties, as at any given time there may be a need for more of one skill than the other. 131 There was currently no position that required a person to drive a truck all day with no labouring duties. There may be occasions where the person allocated to a position of Driver/Operator or Driver/Labourer was required to drive a truck continuously for one or two days per week however when doing so the driver would need to exit and re-enter the truck on a number of occasions during the course of the day in order to load and unload materials. Depending on the size of that truck this work may be physically demanding. 132 Mr Mathis had made his own inquiries as to whether he could possibly find a spot for Mr Azzopardi and in the end agreed that he had to say to Ms Grewal that they didn't have any driver only or any other positions that would suit a person with those restrictions. 133 Mr Mathis denied telling Mr Azzopardi at any time that the vehicle he had most recently been operating was to be sold and that his position would no longer exist. He explained to Mr Azzopardi that his medical restrictions precluded him from driving large vehicles and that at that time there was no need for a driver of a large truck. In such circumstances such a driver is allocated to another vehicle. He maintained he said words to the following effect: "Simon, your current medical status means that you cannot drive larger vehicles and in fact it would be (un)safe (sic) for you to do so. As you know, drivers can be allocated to any vehicle". 134 He deposed that the decision not to allocate him to an 8 tonne truck resulted because that the time there was no requirement for the use of such a large truck but there continued to be a requirement for smaller trucks. At all times, Mr Azzopardi as a driver, like every other driver, was expected to drive any vehicle allocated to him and for which he had the appropriate licence or ticket. 135 He deposed that at the time of the meeting referred to by Mr Azzopardi, Civil Operations division was trying to reduce the number of trucks operational within its fleet and was taking steps to allocate existing drivers to other vehicles and plant. 136 Mr Mathis also deposed as to his minor involvement in the Background and Chronology outlined above. 137 He also acknowledged that Mr Azzopardi had generally driven the 8 tonne truck L/49 before his injury. 138 On being shown the photograph of L/49 (Exhibit 3) Mr Mathis agreed there were only three steps but maintained that you would not use only two steps as you could see the scuff marks on the third step leading into the cabin. He acknowledged that the scuff mark could be the mark of someone stepping out of the truck. He considered going from the cabin straight to the first step would a hazardous way of doing it. The safe work method would be to use all the steps. 139 There was cross-examination about checking of the loads on a truck with Mr Mathis agreeing that a driver would stand on the ground beside the truck to wind the crank to move the cover across the top of the truck and it wouldn't be necessary to climb on the truck to do this. However in checking the load (because he was the operator of the vehicle and responsible to make sure it was loaded correctly) he would need to climb onto the body of the truck and have a look that would necessitate taking two or three steps. There was a ladder on the side of the body of the truck. 140 Mr Mathis considered that a restriction of 10 kgs would prevent Mr Azzopardi from moving small items around a site such as a whacker, a vibrating plate, or something like that, that he might be asked to relocate. There would be some construction work, some formwork where he might have to lift but he would not think that would be over 10 kgs, but it would be close to it 141 He agreed that in his experience the great percentage of the work of the 8 tonne construction trucks was delivering or transporting material off site and to site, with labouring of some description ancillary type work on the site. He also agreed that an alternate source of work for the trucks, if there was no work on those construction sites, was that they would go to the Ethel Road Depot or the other depot and be loaded with other material which they took out to landfills. Submissions 142 Mr Golledge, for the USU and Mr Azzopardi, briefly outlined the history of Mr Azzopardi's employment, his injury, and return to work, submitting that he had no problems when he was allocated duties in the store. Dr Patterson issued a certificate for him to return to pre-injury duties in March 2007 and this he did without complaint or injury to his knee for four weeks. 143 No explanation was given by Ms Grewal for his subsequent transfer to the Maintenance and Restoration team. At a meeting with Mr Hamilton and Mr Mathis he was told that the truck he had been driving was going to be sold and his job was gone. A new Operator/Driver has since been appointed to drive the truck Mr Azzopardi was driving. 144 It was submitted that Mr Azzopardi's appointment to the maintenance section was a disaster for the continued rehabilitation of his injuries. The duties he was expected to perform and did perform were in part using a sledgehammer and crowbar to break apart concrete pathways - heavy labouring. 145 It was further submitted that there were any number of reasons why Mr Azzopardi shouldn't have been doing this type of heavy labour not the least of which was his age and the injuries he sustained to his neck, knee and arm. This would have also applied to the parks' job carrying a heavy brushcutter via a strap crossing the neck, shoulder and chest causing aggravation to the neck and shoulder injury. 146 Mr Golledge referred the Commission to the e-mail Ms Bowerman sent out on 8 October 2007 (Exhibit 4 - X) and submitted that it summed up Council's attitude toward Mr Azzopardi's future employment opportunities. 147 It was submitted that the restrictions mentioned were clarified to Council via a supplementary report from Dr Marnie but to the USU's knowledge there had been no retraction of this e-mail and Mr Azzopardi was never considered for a position in administration doing anything. 148 It was submitted that it almost defied belief that an organisation the size of Sutherland Shire Council employing approximately 1000 people could not find a position for an injured employee that had a certificate saying he could return to his pre-injury duties. 149 Mr Golledge relied on the decision of the Full Bench in IGA Distribution Pty Limited (No. 2) [2002] NSWIRComm 96, upholding the re-instatement of an applicant dismissed because he was not fully fit to undertake all the duties comprehended by his Storeworker position. The Commissioner had found the employer undertook little, if any, assessment and consideration of the impact the applicant's incapacity had upon the sufficient performance of adapted duties. Instead the employer's consideration was on a "simplistic basis" which did not go beyond the fact that as the applicant could not resume all his pre-injury duties there could be no accommodation made for his condition. 150 Having regard to Qantas Airways v Christie (1998) 193 CLR 280 the Commissioner went on to find that "it was incumbent upon an employer to establish, after proper investigation and consideration, that a worker's incapacity represented an inability to discharge the employment obligations relevant to the employee's position before such incapacity could be used as a proper justification for dismissal". The Commissioner considered, based on the evidence before him, that there was suitable employment for the applicant within the respondent's workforce and he was re-instated to a light duties position. 151 Parallels were drawn between that decision and the termination letter to Mr Azzopardi which indicated that because of his ongoing medical restrictions, the re-aggravations of his injuries over the period of his claim and the inability of Council to provide work that did not re-aggravate his injuries, he was to be terminated. 152 It was submitted that there was no accommodation made for Mr Azzopardi's condition. Mr Azzopardi was cleared for his pre-injury duties, he was taken off those pre-injury duties and given duties which in no way reflected the duties he undertook before his injury. 153 Mr Azzopardi has limited restrictions placed on him as detailed in the medical reports however he had a capacity to return to his pre-injury duties without modification and had produced doctors' certificates that testify to that. He had also produced doctors' certificates that require some modification to other duties that would then fit his restrictions. It was submitted that most of these had been ignored or exaggerated by Council depending on what fitted their current circumstance. The truck Mr Azzopardi drove still remained in operation doing similar work. 154 Finally it was submitted that for those reasons an Order for reinstatement of Mr Azzopardi was sought however if for any reason this was not considered appropriate and re-employment was not suitable, the maximum compensation available (that is $20,196.80) should be awarded pursuant to sections 89 (1) (2) and (3). 155 Mr Newall for SCC submitted that the only matter before the Commission was whether, on the 5 of December 2007 - and not at any other time - when Mr Azzopardi was advised that his employment was terminated, that termination at that time was harsh, unjust or unreasonable in terms that are generally meant by this Commission. It was emphasised that this was not a case brought pursuant to s. 241 of the Workers' Compensation Act, the old s.92 of this Act or anything similar where significantly different criteria applied. The onus remained on the applicant to show that the termination was harsh, unjust or unreasonable. The mere fact of losing one's job, even after long service, did not make Mr Azzopardi's termination harsh, unjust or unreasonable. 156 It was submitted that for three and a half years Council had made efforts to deal with medical restrictions that were imposed on Mr Azzopardi as a result of his injury in the middle of 2004. Efforts had been made to place him in different places and employed in different tasks that he could do. However at none of them was he able to carry out the duties of the position within the limitations that were imposed on him. 157 Further, Council was not obliged to keep their organisation frozen in time to accommodate Mr Azzopardi and were entitled to make decisions about reallocating trucks and plant. That didn't make a decision to terminate 6 or 12 months later unfair. 158 At the time of Mr Azzopardi's termination, Council was in the position that he was not and was never going to be fit for any position that Council had available. The term "available" did not mean "vacant", it meant available in the sense that the term was used in Riley v WorkCover Authority (NSW) [2006] NSWIRComm 108. It was not a question of creating such a position, whether vacant or not, that was not the test. The test was that there was not a single job, whether filled or unfilled, that Mr Azzopardi could do. 159 Mr Newall during the course of his submissions, took the Commission in some detail to the evidence of Ms Grewal, Mr Hamilton and Mr Mathis and to the efforts made by Council over the relevant period of time to put Mr Azzopardi into different kinds of jobs that might accommodate him. The issues raised in the various medical certificates and reports were also canvassed, including what resulted from Mr Azzopardi's workers compensation proceedings on October 2007. It was submitted that it was perfectly clear that Ms Grewal made the effort to properly apprise herself of the factual situation surrounding both Mr Azzopardi's limitations and health and the factual circumstances of the job that might be done. Enquires were conducted right across the board. 160 It was emphasised that positions were the issue, not creation of work. It had clearly been established by the decisions post Effem Foods t/as Uncle Bens of Australia v Urban (1998) 81 IR 341 that it was not the case, as may have been suggested in Effem Foods, that a job had to be vacant. However it was still the position that it was not required for an employer to make up a job to fit a person's abilities. 161 It was submitted that this matter was not a case anything like IGA v Moses where the employer had simply said the employee had some limitations and that was the end of it, termination. That case showed what you don't do. In contrast Council had been a model of what should be done. There was an employee with limitations and Council strenuously tried to find employment for him subject to his limitations in what ever area that employment could be found. 162 The reason a job couldn't be found was because it just was not there. Whilst Mr Azzopardi had said that his job was really a driver only position and that all he did was drive a truck 99% of the time, that was not the true position. The Commission was taken to the evidence of both Mr Hamilton and Mr Mathis as to what Mr Azzopardi did do, the relevant job description and what was required particularly in relation to labouring duties associated with the position. In doing so it was conceded that Mr Hamilton went so far as to say that Mr Azzopardi had a good reputation for pitching in and doing work wherever it was that he drove to and assisting with the gangs as he was required to do. The evidence was also that there were no driving only positions at Council. 163 Again, contrary to what was expressed in IGA v Moses, Council had respect for Mr Azzopardi's work ethic, and respect for his length of service. That did not mean that a person had a sinecure for life and unfortunately in this case there wasn't work that he could properly do. 164 It was submitted that there was nothing unfair in this case in having tried Mr Azzopardi in a range of jobs for three and a half years and having strenuously tried when the last restrictions came in at the end of November 2007 and saying how could they accommodate him in the various areas based on those restrictions. 165 Council was bound to act on the various medical reports that were provided as to Mr Azzopardi's restrictions or it was in flagrant breach of the Occupational Health and Safety Act and its common law duty, which it could not do. The Commission was taken to the relevant medical reports and actions by Council in considering those reports and its attempts to find suitable jobs. 166 Mr Azzopardi's lengthy service was taken into account at the time the decision was made and it was not a matter of dealing lightly with someone who had given the Council long and valuable service. It was a matter of saying there simply wasn't any work that he could be given and he had to be let go. That was not an unfair decision to make in December 2007. The Commission had not been shown any basis upon which that decision would be unfair and the onus fell on the applicant to show that to the Commission. 167 It was submitted that the proper course for the Commission was to dismiss the application because ultimately the decision that was taken by Council was not harsh, unjust or unreasonable within the meaning of the Act and the law. 168 The idea of compensation was unsound because Mr Azzopardi received full wages after the time he was terminated. He went on receiving that for another 20 odd weeks and continues to receive money to this day at the 80% rate. There was no economic loss arising out of the termination of his employment. Further nothing at all had been said about any efforts made by Mr Azzopardi to mitigate his loss. Compensation just did not arise in circumstances where someone had gone on being paid their wages. 169 In relation to reinstatement, it was a case of reinstatement to what. The applicant had not been able to say to the Commission "here was the job description of the position in which I want reinstatement or re-employment". The Commission was not in a position to pull together a kind of job made of bits and pieces and put Mr Azzopardi into it, that was just not available. 170 Consideration had to be given to the common law duty of care to the worker and the OH&S duty of care to the worker. It wouldn't be in anyone's interest to put a man back in employment which was bound to cause injury or which was beyond his capacity to do. Indeed if the worker was not fit for the kind of work that the employer had available, an employer would be in breach of its duty of care if it kept him on. In that regard reliance was placed in the recent decision of Connor C in Diaz v Sydney South West Area Health Service [2008] NSWIRComm 1034. 171 It was submitted that that was exactly the circumstance in which Council found itself in December 2007. The worker was not fit for any kind of work that the employer had available. To keep him on would have been a breach of Council's duty of care to him therefore the decision was made that Council couldn't keep him on. That could not be unfair when to do or otherwise, on the authorities, would be a breach of Council's duty of care and contrary to law. 172 Reliance was also placed on Riley v Workcover which held that the onus was on the applicant in seeking reinstatement or re-employment to show that there was work that he could do that was available. As previously submitted it was accepted that that didn't mean vacant as was said in Riley v WorkCover but it must be a position both suitable and available. The situation for Council was that there wasn't a position that was suitable and available which was why the decision to terminate was not unfair. 173 Even if the Commission was against Council's submissions and formed the view that the decision was unfair there couldn't be any conception of reinstatement because there wasn't a suitable position available and under the Act there must be such a suitable available position or a person could not be reinstated or re-employed. 174 It was further submitted that just because Council was a large enterprise with a thousand employees did not mean that there must be a job somewhere. The onus was on the applicant to identify the job that he wanted to be reinstated or re-employed into and then Council could see whether it could be done or not. That had not been done and the reason it had not been done was not the fault of those representing Mr Azzopardi, they did their best, but if the job wasn't there you could not show that it was. 175 On the issue of notice payment raised by the Commission, that was a separate issue to the question of compensation for any unfairness. It was not suggested that the Commission couldn't, ancillary to the matter before it, consider that issue. The Commission's accrued jurisdiction would allow it to deal with such a question. However it was Council's submission that payment in lieu of notice didn't apply in this case given the circumstances. Mr Newell also indicated that it was common ground that given Mr Azzopardi's age should the question of notice be agitated notwithstanding Council's submissions, then be relevant period would have been four weeks plus one week equalling five weeks. 176 Mr Golledge in reply acknowledged that Council had made "some attempt" to find Mr Azzopardi some work but the positions that Council put him in, particularly the maintenance job as well as parks and gardens job, exposed him to heavy labouring as opposed to the job that he was suitable for that is his pre-injury duties where he went back for some four weeks, was exposed to the full gamut of the job, suffered no recurrence of injury, made no complaint and was able to do that job. 177 It was submitted that Mr Azzopardi is now and was, on a number of occasions, fit to return to his pre-injury duties and for the reasons outlined in IGA v Moses some accommodation could be made for him by Council. The evidence of Mr Hamilton was referred to where he agreed that the greatest percentage of the job was simply driving a truck with some associated labouring duties. Mr Mathis also gave evidence about a number of associated labouring duties giving examples and when asked whether that was heavy labouring over 10kgs, he said no, it would be close, around that. 178 It was submitted that there was nothing stopping Council, OH&S Act included, from returning Mr Azzopardi to his pre-injury duties even if they were a little bit different now when towing an excavator or digging implement behind the truck. That position wasn't seen as being any different really to the job Mr Azzopardi was doing. The only two jobs Mr Azzopardi had a problem with involved heavy labouring. Only a minor accommodation needed to be made, if that, and Mr Azzopardi would be performing his duties. 179 For that reason the USU submitted that Mr Azzopardi should be reinstated. If not reinstated to exactly the same job then re-employed in a similar position where he was able to drive trucks and do light labouring duties which the USU was sure was available at the Council. If not he should be provided with the maximum compensation available. It was a matter for the Commission to discount, for any reason, any ongoing payments. 180 The termination was unfair because Mr Azzopardi sought any number of times to return to his pre-injury duties and was not able to do them, when he was able to do that he was sent somewhere else and that was unfair. It was unfair that Mr Azzopardi was given no opportunity for the most part to perform those pre-injury duties and show Council he could do the duties. In fact he did show that he could do those duties for four weeks without injury or complaint and was removed for an unknown reason. It was not properly explained to Mr Azzopardi or the USU why he was removed to do the maintenance job. It was mooted that he might be moved because there was a downsizing or a change but for the USU that was patently unfair because the job was still there it had not gone away. The operator and the construction job still remained all that was different was the towing of the vehicle. Consideration 181 I have carefully considered the evidence and the submissions of the parties. 182 I acknowledge at the outset that there is no doubt that SCC during 2007 did expend considerable efforts to attempt to find a suitable position for Mr Azzopardi to accommodate his on-going employment with SCC as can be readily seen from the above Background and Chronology. 183 It seems to me however that the crux of this matter is just what exactly were Mr Azzopardi's pre-injury duties and whether or not he was ever given the opportunity of returning to those duties and if not whether his subsequent termination could be considered harsh, unjust or unreasonable as a consequence and sufficiently so to warrant the intervention of the Commission. 184 Procedural issues will also be of relevance for the same consideration. 185 Mr Newall submitted that the only matter before the Commission is whether or not at the date of termination (being the 5 December 2007) that termination, at that time, was harsh, unjust or unreasonable. 186 That is a somewhat simplistic approach which, whilst correct to a degree, ignores the fact that any termination must be considered in the context of the events leading up to it not to mention the reasons for the termination. 187 Indeed s. 88 sets the parameters for the Commission's consideration of an application for relief made pursuant to s. 84 as follows: "In determining the applicant's claim, the Commission may, if appropriate take into account: a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and b) if any such reason was given - its nature, whether it has a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and c) whether a warning of unsatisfactory performance was given before the dismissal, and d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and e) whether or not the applicant requested reinstatement or f) re-employment with the employer, and g) such other matters as the Commission considers relevant" 188 Certainly s.88 focuses attention on the termination itself and obviously that attention is focussed at the point in time of the termination except for consideration of any prior warnings. However s.88 (f) clearly allows scope for the broadening of any consideration to be undertaken. 189 It would also be impossible to consider, under s.88 (b), whether any reason given had "a basis in fact" without going into the background surrounding that reason (or reasons). That would certainly require consideration of events/conduct prior to the actual date of termination. 190 It is also a well-established principle in unfair dismissal cases that a termination can be both substantively and procedurally unfair. Byrne & Anor v Australian Airlines (1995) 61 IR 32 being the standard authority applied in countless cases before this Commission. 191 It is not possible therefore to simply look at the termination of the 5 December without considering that termination in its proper context and that requires a consideration of the events leading up to the termination. 192 That brings me back to the crux of this matter of just what were Mr Azzopardi's pre-injury duties and at all that flows from that. 193 At the outset I have to take issue with both the evidence of Ms Grewal and the submissions of Mr Newall that Council had made efforts for "three and a half years" to accommodate the medical restrictions imposed on Mr Azzopardi. 194 One of the reasons it is my standard practice to set out a detailed background and chronology is that it is only as a consequence of carrying out that exercise am I able to establish the framework, as it were, for the jigsaw puzzle that is always an unfair dismissal application. Once that exercise is carried out the pieces of the jigsaw puzzle start to fall into place in a logical sequence which can reveal details that never really surfaced during the course of an unfair dismissal hearing. 195 It is apparent from Mr Azzopardi's evidence, supported by the evidence of Ms Grewal and in particular the report she was considering in January 2007 concerning employees currently on workers compensation in the Civil Operations unit (Exhibit 4 - A), that the following can be established: · 28 June 2004 - Mr Azzopardi's injury. Report only made. · Mr Azzopardi had only "minimal time off work", · 8 February 2005 - claim lodged, · Mr Azzopardi continues working despite difficulties with his knee, · November 2005 due to pain and discomfort he seeks specialist assessment and operation recommended, · 1 March 2006 he ceased work - first operation on his knee, · 27 March 2006 - second operation on knee. · 18 April 2006 return to work on light duties - Sydney Road project. · No evidence as to any problems at Sydney Road where he continues to work until 23 March 2007. 196 I note that in spite of WorkCover certificates from 14 July 2007 which indicated that he was fit for modified duties driving a small truck 4 hours and stores work, Mr Azzopardi maintained that in fact he never drove a small truck but directed traffic at the recycling centre. This was confirmed by the evidence of Ms Grewal. 197 Mr Azzopardi did not go off work until March 2006, he returned in April 2006. A very short time off work. Until he went off there is no evidence that his injuries caused any inconvenience to anyone except Mr Azzopardi and required no management by the Council until he returned on light duties. 198 Those light duties were carried out as is customary (insofar as outdoor workers are concerned I suggest) at the Sydney Road project. Despite any subsequent WorkCover Certificates providing for modified duties he continued to work at Sydney Road until 23 March 2007. Ms Grewal however maintained that was due to logistical difficulties. 199 Again there is no evidence that this caused any problem. 200 However Ms Grewal deposed that in considering the report she had received (which is undated but refers to "weeks w/comp: 8.16") - "I noted that Mr Azzopardi had been having ongoing medical conditions throughout the past three years and there had been difficulty in finding him suitable work within SSC" (emphasis added). He might have had "ongoing medical conditions" for three years but Council had not been placed in any position of difficulty in what work to provide for him for that entire period. 201 I also note that Ms Grewal's meeting notes of 9 May 2007 (Exhibit 4 - M) indicate "Simon's medical restrictions have been on-going for more than 3 years". That clearly was not the correct case and presents a misleading and frankly exaggerated picture of the position in relation to Mr Azzopardi. I do not know whether that was a genuine mistake on the part of Ms Grewal or just her misunderstanding of the situation. 202 The reality is that the Council had only had to deal with medical restrictions arising from Mr Azzopardi's condition from 1 March 2006 when he went off work on workers compensation to have the first operation on his knee and returned on light duties on 16 April 2006. 203 There is no evidence whatsoever that prior to I March 2006 there were any medical restrictions imposed on Mr Azzopardi and what work he could carry out. The claim was lodged in February 2005 but does not appear to have been acted on in any way that caused any inconvenience to Council. Mr Azzopardi carried on with his normal duties relying on medication, physiotherapy and a gymnasium program. (Exhibit 1). I acknowledge that once the claim had been made in 2006 that any medical expenses may have been claimed via workers compensation. As a self-insurer this would have involved costs for SCC. The evidence from both Mr Azzopardi and Council is silent on this. 204 It concerns me greatly that Mr Azzopardi's situation has been apparently built up by Council to be more of a problem over a lengthier period of time than it truly was. 205 This may seem a trivial point to be taking but it does contribute to the overall impression that has slowly but steadily consolidated into my final consideration in this matter. 206 On March 24 2007, Mr Azzopardi essentially received the "all clear" as it were from Dr Patterson to return to "normal truck driving duties" - his pre-injury duties - which he said he did for some four weeks. There were no restrictions whatsoever imposed on that return to normal work. 207 Notwithstanding the evidence of Ms Grewal about discussions with Mr Mathis there appears to have been no attempt to carry out any assessment of the implications of Mr Azzopardi carrying out his pre-injury duties. There was an assessment of an alternative position carried out within the maintenance and restoration team. 208 It seemed clear to me from the evidence of Ms Grewal that she did not really have any knowledge of just what Mr Azzopardi did do pre-injury. It is all very well to say there was a job description for the Operator/Driver position which certainly specifies at "(h) Carry out any labour tasks as directed" and that that would have meant any labouring required in association with the sites he was making deliveries to with his truck. The reality however appears to be that any labouring duties he was doing were what could only be described as "light labouring". 209 Regardless of what both Mr Mathis and Mr Hamilton deposed in their respective witness statements, in their oral evidence, as far as I'm concerned, they confirmed just the sort of duties that Mr Azzopardi said he carried out including taking loads of various material from Ethel Road to landfill sites when the truck wasn't actually occupied in making deliveries to construction sites. It was also confirmed that indeed Mr Azzopardi did drive the 8 tonne truck L/49 for the majority of his working day. 210 What is still totally unclear to me (and I share Mr Golledge's bemusement) is why on earth Mr Azzopardi wasn't just left driving his truck when he returned to it in March 2007. 211 Now maybe it would not have worked out as time progressed and a re- aggravation of his injuries may still have occurred even as a result of driving the truck and carrying out what he said were his pre-injury duties. However in that case I feel sure that Mr Azzopardi would have in fact accepted the inevitability of the position that was just not going to be possible to carry on working for the Council. Mr Azzopardi would not have had any reason to feel aggrieved or unfairly treated if in fact his request to return to pre-injury duties had been granted but had just not worked out. 212 The decision to remove him from those pre-injury duties in March 2007, (for which he had a WorkCover Certificate with no medical restrictions) appears to have been based on the workers compensation report Ms Grewal had received together with her discussions with Mr Mathis. I can find no evidence indicating any other basis. 213 There is of course always the issue of being able to reduce the eight 8 tonne trucks Council had by one, namely truck L/49 driven by Mr Azzopardi. Despite the protestations of Mr Mathis and Mr Hamilton, there was clearly consideration given, and indeed acted upon, of reducing the fleet, due to reduced need it would seem. The fleet was reviewed and one truck got rid off but not truck L/49. Something must have been said to give rise to Mr Azzopardi's belief that his truck was to be sold and he wouldn't have a position even if he misunderstood exactly what was said or the fact that it was only something being floated at that time. 214 There was no workplace assessment of this pre-injury duties undertaken nor was there any alternative medical opinion sought by Council arising from the 23 March WorkCover Certificate saying he was fit for pre-injury duties. I note that further alternate medical reports and assessments of specific positions only occurred subsequent to his transfer to the alternate position in the maintenance and restoration section resulting in a re-aggravation of his injury and the further WorkCover Certificate of 31 May indicating a restriction on lifting up to 10kg and " cannot do concreting ok to drive". 215 Dr Patterson issued two further WorkCover Certificates (29/6/07 and 9/8/07) indicating "pre-injury duties were those of truck driving/construction work" again with no other restrictions imposed. 216 Evidently he also returned to his pre-injury duties in June, albeit as a Driver/Labourer rather than an Operator/Driver (and it is unclear whether he was driving L/49), as indicated by the Rehabilitation Closure Report of 24.08.2007 (Exhibit 4 - V) which states inter alia: Current Status: Mr Azzopardi is currently certified fit for pre injury duties per treating physician Dr Patterson as indicated in the final WorkCover medical certificate dated 09.08.2007. He was monitored for 1 month (emphasis added) performing his normal role between 25.06.2007 - to 25.07.07. Mr Azzopardi reports experiencing no significant symptoms related to the workers compensation injury and maintains an increased awareness of potential hazards in the workplace." 217 The Report went on to note under "Summary of Progress" that Mr Azzopardi indicated "there were no concerns regarding my physical injury" and "was to obtain a final pre-injury certificate at his next medical review on 9 August". Which he subsequently did (see above). The Report also indicated that Mr Mathis "has expressed no ongoing concerns in relation to Mr Azzopardi's performance or ability to manage at work in terms of the workers compensation injury." 218 The Report then concluded with: "No further time loss or treatment is anticipated in relation to Mr Azzopardi's neck and left knee strain sustained on 28.06.2006. As discussed with all relevant parties, Rehabilitation Services will cease involvement with Mr Azzopardi successfully maintaining his pre-injury duties at Sutherland Shire Council. 219 However notwithstanding the Report and the WorkCover certificates certifying his fitness for pre-injury duties, during this period he appears to have been allocated duties under the supervision of the maintenance foreman in the role of third person on a two-man crew driving trucks and light labouring duties rather than driving L/49 and the duties associated with the construction crew. Mr Azzopardi maintained that the majority of the work involved labouring rather than driving which was not his pre-injury duties. 220 Again it appears totally unclear to me why he could not have simply been put back driving L/49 unless of course it was that the work he formerly did just was not there any more because, notwithstanding that L/49 had not been sold, another 8 tonne truck had in fact been sold and there simply wasn't a position for him. It is unclear from the evidence just when the eighth truck in the 8 tonne fleet was sold. 221 From March 2007 all the problems seem to have arisen as a consequence of attempts to place Mr Azzopardi in alternate positions that were unsuitable due to the nature of the work involved or because it was work which he wasn't prepared to countenance because it wasn't driving the truck. As was the case with the data entry position suggested which resulted in Mr Azzopardi going off on sick leave due to reportedly "suffering a nervous breakdown". 222 Indeed between June and December 2007 there were at least two occasions when Council deemed there was no suitable work available and Mr Azzopardi was sent home on pay. 223 The significant event that did occur in early October was the issue of the workers compensation claim made by Mr Azzopardi's Solicitors and the basis for that claim, namely that he had "a permanent compensable impairment" with a range of activities he would not be able to do (heavy lifting, walking up and down stairs etc.). 224 This seems to have effectively (and not unreasonably from Council's point of view) scuttled any possibility of Mr Azzopardi returning to his pre-injury duties as far as Council were concerned, notwithstanding subsequent medical reports he obtained seeking to clarify what was meant by walking up and down stairs and that it did not mean he could not climb the steps into the truck. 225 I have to say that I accept that on the evidence there were only three steps into the truck and not four as maintained by Mr Hamilton. Whilst it was clear from the photograph of the truck (Exhibit 3) that the scuff marks on the top moulded step would indicate that there was use of this step, whether that was for the purpose of entry into or exit from the cabin is not known. It was however obviously used sufficiently to cause the scuff marks on the painted surface. 226 However it does not seem to me, by any stretch of the imagination, that three steps can be equated to stairs and therefore also were affected by any perceived inability to walk up and down stairs on a frequent basis , as indicated in the medical reports. 227 Whilst again this may seem a trivial point, at this stage of the unfolding events of 2007, this perceived inability to climb stairs assumes considerable significance particularly in relation to driving the truck, in the light of the evidence of Mr Mathis. 228 Mr Azzopardi is correct in saying that none of the medical reports subsequent to October 2007 actually precluded him from returning to truck driving. There were only restrictions imposed that related to any associated labouring tasks. I include in this consideration the report of Dr Bodel on 7 November (Exhibit 1 - II). 229 Another significant factor in all of this that I must comment on is a consideration of Mr Azzopardi from a physical point of view. He is a slightly built, small man (Dr Marnie's report says 5 foot 6 inches tall and weighing 73 kgs) in his early sixties. He hardly fits the picture of a typical outdoor Council worker. I have had the opportunity of observing any number of such workers from a variety of classification in the various disputes and unfair dismissal applications that have come before me in the Local Government industry over the years. Whilst I appreciate that I am making a generalisation, I was particularly struck by this aspect of Mr Azzopardi (and made similar observations during the hearing) and the resulting conclusion that he seemed to be one of the last individuals one would consider for any kind of constant or heavy labouring duties. 230 In response to question from the Commission, Mr Hamilton commented, quite rightly, "It's all about match fitness more than size. If you've been doing a job for years and you know how to do it properly, if you know what precautions to take and how to protect yourself." 231 This would certainly be the case in such an individual who was used to doing that type of work and over the years had come to know how to do the job and what precautions to take etc. However the relevant point here is, that based on the evidence, Mr Azzopardi had not carried out a job with Council that was substantially labouring and or carried out duties that could be termed heavy labouring. He had spent the majority of his time driving a truck and doing light labouring tasks. He was not accustomed to the type of work he was given in 2007 and I consider it was quite unrealistic in terms of his age, physical make up and work experience, to have expected he would have made a ready transition to such work without problems ensuing which of course is what happened. 232 There was no evidence as to the nature of other Operator/Drivers with Council or what work they may have performed in contrast to Mr Azzopardi. I just do not believe that over the years Mr Azzopardi was ever expected to do the type of labouring duties that he was assigned in 2007. 233 I also note, that the job description for an Operator/Driver (Exhibit 1 - D) had as essential requirement, in addition to a Class MR Licence, "Backhoe (Class 17 or LS) Skid Steer (Class 18 or LS) ticket (or on agreement to obtain within the probation period). Mr Azzopardi only held an MR Licence he had no other licences or tickets for any of the plant operated by Council. Notwithstanding this deficiency he had been classified as an Operator/Driver when the new job descriptions were implemented. This no doubt resulted from his lengthy and entirely satisfactory service as a truck driver with Council. 234 On the 5 November Mr Azzopardi was assigned to the position of Driver/Operator within the Parks Operations, however as a consequence of using a brush cutter he exacerbated his neck condition and went off work again on 15 November. From the 15 November to the 30 November 2007, Mr Azzopardi was covered by Workcover Certificates indicating he was unfit for work suffering "exacerbation to a cervical spine condition". He was due for further review on 29 November. 235 On the 29 November Dr Patterson issued a further WorkCover Certificate indicating that Mr Azzopardi was fit for suitable duties from 3/12/07 to 31/12/07 with capabilities for "USUAL hrs/day - USUAL days/week" , the only restrictions noted were lifting up to 10 kgs and "No heavy Labouring work". I take this to mean he was fit for his pre-injury duties of truck driving. There was to be a further review of his fitness to work on the 31 December 2007. 236 I now turn to a consideration of the circumstances of the actual termination as it occurred in early December 2007. 237 It is first necessary to "backtrack" to 22 November and the exchange of e-mails concerning Mr Azzopardi, between Ms Grewal, Mr Coombs (SCC's Workers Compensation Officer) and Mr Evans (SCC's Personnel Manager) (Exhibit 1- HH) . 238 On the 22 November Mr Coombs sent the following e-mail to Ms Grewal: "Simon's latest certificate arrived this morning indicating he is unfit for work until 29.11.2007. Simon has said that his doctor has indicated that even if he is fit to resume work after 29.11.2007 he is not to work in Parks Operations. We have also received the medico legal report. Part of the doctor's opinion can be summarised as:- - the worker is fit for pre-injury duties as a driver at unfit for unrestricted work. I think perhaps all the doctors are missing the involvement of the left knee in climbing in and out of the truck and clutch usage. There will also be an amount of neck usage. I have advised Keith of this and suggested that a case conference would appear appropriate." 239 Ms Grewal responded ( and copied to Mr Evans) as follows: " Taking all conditions/restrictions into consideration, we simply don't have work for Simon that involves driving a truck with no steps (as no such truck exists) and the work is that of driver/operator or driver/labourer. As such Engineering Operations have no suitable work in a safe work environment that it can offer Simon and this ends our involvement in trying to assist Simon find suitable employment. Personnel may wish to place a bulletin out to all SCC managers and directors once more to see if there is suitable permanent work for Simon taking his restrictions and skills into consideration. Case conference may be useful between Personnel and Simon with Keith Agnew if you think it has merit." 240 Mr Evans responded as follows: "If that is the final medical assessment, then Council will need to severe (sic) employment ties with Simon and asked Keith to manage the remainder of the process as Rehab Provider. Max, can I have your confirmation that this is a final certificate of fitness. If so, then Krsitie (sic) can you and Manjeet meet with Simon and his support person to indicate there are no duties available in Council and his services are terminated due to inability of Council to find him work permanently having regard to his restrictions. I would take Manjeet suggestion and do the SCC Managers e-mail indicating the permanent fitness of Simon, his skills etc and whether any Unit can accommodate him before the employment is terminated." 241 The WorkCover Certificate referred to was not a final medical assessment and as indicated above, a further WorkCover Certificate was issued for the period from 3/12/07 to 31/12/07. That also was not a final medical assessment but was to be further reviewed on 31/12/07. 242 It was Mr Azzopardi's evidence (Exhibit 2) that the truck he drove had "air assisted clutch and is not difficult to drive. As for my neck I have no difficulty in driving the truck, the truck has mirrors which we are meant to use when driving". 243 He also maintained that his restrictions didn't say he couldn't walk up steps and that that "was nonsense" He relied on Dr Marnie's supplementary report of 19 October (Exhibit 2 - D) qualifying what was meant by his comments about walking up and down stairs (referred to above). 244 Once again it comes back to the issue of Mr Azzopardi never being put in the position of returning to his pre-injury duties, albeit with some restrictions as to heavy labouring and lifting up to 10 kgs., which I have already canvassed extensively above. 245 Mr Azzopardi did actually return to work on Monday 3 December, but was sent home as it was considered there was no suitable work available. 246 After further unsuccessful attempts to find suitable employment within her Group, on Tuesday 4 December Ms Grewal telephoned Mr Azzopardi to advise him that he was terminated as Council could no longer find suitable work for him due to his medical restrictions. The termination letter from Mr Evans (see above) of the 5 December gave the termination date as of Friday 7 December. In other words he was terminated with immediate effect. 247 I can appreciate that by this stage SCC considered that it had no option, having exhausted all possibilities it considered available, other than to terminate Mr Azzopardi. The problem is that whilst I also appreciate the not inconsiderable efforts that Ms Grewal expended in relation to Mr Azzopardi between January and December I consider that Council never really implemented the return to his actual pre-injury duties for which his WorkCover Certificates made provision. 248 I have no doubt whatsoever that if Mr Azzopardi had in fact been put back on his pre-injury duties (including the type of labouring work he was accustomed to and did perform) as he had clearly worked pre-March 2006 then all the subsequent difficulties/medical reports/alternate placements would not have been necessary. Further, if in fact for some reason a return to those pre-injury duties had not proved successful and there had been any exacerbation of any of his medical conditions, then I am sure Mr Azzopardi would have accepted that such a return was not in fact going to be possible. 249 In that event, given Mr Azzopardi's clear and unequivocal unwillingness to really engage in alternative work, I do not think he would have stayed in Council's employment and probably would have sought to retire. I accept that that is speculation on my part but I have formed that view in relation to Mr Azzopardi as a consequence of very careful consideration of all the evidence before the Commission. 250 I also acknowledge Mr Azzopardi's unwillingness and indeed totally blinkered approach to a preparedness to engage in any alternative work. He remained as fixated on returning to his job "driving his truck" post termination as pre-termination. There is no evidence that he has sought any alternative employment since his termination. 251 I accept that this would also have been in large measure part of the problem confronting Council during 2007. However there was always a simple solution available, that for reasons quite beyond me, was never followed, that is returning him to his pre-injury duties. The only vague reasons that appear to have been percolating beneath the surface were the desire to reduce the fleet of 8 tonne trucks and possibly the way work may have been able to be more flexibly organised in 2007. Mr Azzopardi may not have been able to be used as flexibly as now required (compared to pre-2006) given his age and lack of holding any other tickets/licences apart from his MR Class licence. Again I accept that there was no real evidence as to this. 252 Overall, notwithstanding Council's efforts, I can understand Mr Azzopardi's sense of the unfairness of it all and why he feels so aggrieved at his treatment. I also consider that Council was "unfair" in not returning him to his pre-injury duties and giving him a decent go at those duties. I consider that too much has been made of the perceived difficulties in returning him to such duties. 253 In December 2007 the fact is that Council did not have a final medical report as to Mr Azzopardi's condition. They did have a Workcover Certificate stating he was fit for suitable duties (albeit with some restrictions). However I accept that whilst ever he was not returned to his pre-injury duties there was always going to be an ongoing problem with Mr Azzopardi and any alternate placement. 254 Whilst I accept the relevance of the decisions in Riley v WorkCover and Diaz, I remain unconvinced that Council did not have an "available" position for Mr Azzopardi namely his pre-injury duties. It was not a case of creating a position. 255 I remain unconvinced that Mr Azzopardi was ever properly returned to his pre-injury duties. I remain unconvinced that such duties did not exist. There was never any formal assessment of such duties. I remain unconvinced that he could not have been successfully returned to such duties even if that had only been for an appropriate trial period. 256 Further, notwithstanding the efforts that had been expended by Council, after 28 years unblemished and entirely satisfactory service, I would not have expected, in the circumstances, an employee to be simply terminated effective immediately as Mr Azzopardi was terminated and essentially bundled out of the place, without being given the proper notice in accordance with the Enterprise Agreement covering his employment conditions. 257 I have long held the view that the manner in which a termination is actually effected can of itself be harsh, unjust and unreasonable in the circumstances. Indeed, it has been my observation that, in countless unfair dismissal applications that have come before me, a good proportion of those have been as a result of the actual manner in which the termination was effected rather than merely the substantive reasons involved. 258 Council did not give Mr Azzopardi any notice of his termination as it was required to do. Mr Newell argued that this was because he was on workers compensation and already receiving payment and to have received a notice in lieu payment would have been a double payment. 259 That is simply not the case and clearly wrong. Mr Azzopardi was entitled to be given notice as per his Agreement or be paid in lieu thereof. Indeed Council could have very simply avoided any notion of a double payment if they had simply given him the appropriate time notice. He then need not have been required to serve out that time or indeed could have simply remained at home on pay until the notice period had expired. Immediately prior to his termination he had in fact been sent home on pay (on the 3 December). Workers compensation did not kick in, my view, until after his termination and as a consequence of there being no suitable work available. In no way should that have impacted on any notice payment entitlement. 260 The USU did not seek any Order for notice payment pursuant to s.380 of the Act which could have been dealt during proceedings upon application pursuant to s.379. 261 The Commission raised the issue of whether or not any payment in lieu of notice had been paid. There was debate on the issue with Mr Newell who assisted the Commission by subsequently indicating that should I be against his submission that I had the jurisdiction to make an order for any shortfall in the notice payment further indicating that it was common ground that five weeks rather than four weeks would be the appropriate standard due to Mr Azzopardi's age. 262 The Commission may, pursuant to s.162 (2) (j) of the Act "on its own initiative, inquire into any industrial matter." 263 The Sutherland Shire Council Employees Core Enterprise Agreement EA05/38 between SCC and the USU (and other relevant Unions) provides at 4.18 as follows: "The council shall give to an employee a period of notice of termination in accordance with the Local Government (State) Award". 264 The Local Government (State) 2007 Award (364 IG 491) provides at Clause 33, Termination of Employment, as follows: "(iv) the council shall give to an employee a period of notice of termination in accordance with the following scale or by payment in lieu thereof: Employee's Period of Continuous Service Period of Notice ................................ 5 years and beyond At least 5 weeks. (emphasis added) 265 Clearly given the summary nature of Mr Azzopardi's termination, he had an Award entitlement to be paid at least 5 weeks' pay in lieu of notice. Indeed given his satisfactory service of 28 years it would have been entirely appropriate for Council to pay an amount in excess of 5 weeks' notice. 266 I propose to remedy this issue in the Orders I intend to make in this matter. 267 I turn now to the well established authorities upon which I am required to rely. 268 In relation to procedural fairness Byrne & Anor v Australian Airlines has also been relied on in numerous decisions of this Commission including Wang v Crestell Industries Pty Ltd (1997) 73 IR 454; Rapp v Wauchope RSL Club (1998) 81 IR 434; Burke v McGirr (1998) 87 IR 54; Busways v Johnson (1994) 55 IR 255 and Antonakopoulos v State Bank (1999) 91 IR 385. 269 The expression "harsh, unjust or unreasonable", was also considered in Byrne (also at p.72). The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 at p.182. Essentially, those cases hold that is not necessary that a termination be found to be harsh and unjust and unreasonable. It can be one or any or all of those three. 270 The meaning of those individual terms was been considered in detail in Sams v Contact Point International [2001] NSWIRComm 18 and that decision has been applied in numerous other decisions of this Commission. I also adopt those considerations. 271 Bankstown City Council v Paris (1999) 93 IR 209, is authority for the necessity of the Commission making a positive finding as to whether the terminations were harsh, or unjust, or unreasonable (or any combination thereof) and the grounds upon which the Commission so finds. 272 This approach was reiterated by the Full Bench in National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at paras [64] and [65]: 64 Finally, we stress the importance of a Member of the Commission at first instance in s 84 proceedings dealing expressly and specifically with the tripartite statutory test. As the Full Bench observed in Outboard Marine Pty Ltd T/As Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183, in order to avoid the possibility of misunderstanding or error, the tribunal should state explicitly the basis upon which it is considered that a dismissal was unfair or not unfair. That is to say, with the dismissal was or was not harsh, unreasonable or unjust. 65 In the present case, Cambridge C found that the dismissal of the applicant was not harsh, unreasonable or on just and we consider an examination of the Commissioner's reasons support his conclusion. It would have been preferable, however, if the Commissioner had spelt out in clear terms wide, under each limb of the tripartite test, the dismissal was not an "unfair dismissal". 273 In this matter, based on the evidence and submissions before me and my consideration of that evidence and those submissions, I find that the termination of Mr Azzopardi was unjust and unreasonable. 274 I do so firstly on the basis that he was never permitted to properly return to his pre-injury duties when in my view this could have been readily facilitated and I can find no substantive reasons to justify this failure to return him to such duties. Indeed there was no subsequent return to those duties when issues that might have prevented such a return were subsequently clarified by further medical reports. 275 Secondly, the manner of Mr Aazzopardi's immediate and quite summary termination given the circumstances of his lengthy and satisfactory service was entirely unwarranted particularly the failure to pay him his Award entitlement of payment in lieu of notice. 276 I hasten to add that if Council had indeed initially tried Mr Azzopardi out in his pre-injury duties or come up with some good and cogent reasons why he couldn't return to such duties (again I emphasise that this was simply absent in my view) and if they had given appropriate notice or payment in lieu on termination, then I would not have come to the view that the termination was unjust and unreasonable. 277 Mr Azzopardi sought re-instatement. Sympathetic as I am to Mr Azzopardi's desire to simply go on working driving his truck, it is abundantly clear to me that this will simply not be possible given Council's views on this issue. I just don't consider it practicable to return Mr Azzopardi to his former position. That would be dependent on Council organising such work to take into account those restrictions Mr Azzopardi does still have and I just don't believe that would ever happen. It may also be that, as Council indicated, they are always moving forward with the nature of the work evolving accordingly and Mr Azzopardi is unsuited to participating in that evolutionary process. 278 If the Commission was not minded to order re-instatement then the USU sought the maximum amount of compensation available on his behalf. 279 There are no provisions in the Act as to what is the appropriate amount to be awarded in compensation where a termination is found to be harsh, unjust or unreasonable (or any combination thereof) and reinstatement is sought but is held by the Commission not to be practicable. 280 In terms of Section 89 (5) the upper limit for monetary compensation is set at "an amount of compensation not exceeding six months remuneration of the applicant at the average rate received over the period of six months immediately before being dismissed". Section 89.5 is concerned essentially with the loss of earnings. Section 89.6 provides as follows: "When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration that would have been payable if the applicant has succeeded in obtaining alternate employment". 281 However, in D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 the Full Bench commented at page 363 that: "The power in the Commission to make a money order subject to the limitation on the quantum of compensation and the matters required to be taken into account by Section 89.6, is nevertheless within the Commission's discretion whilst the Commission is required to take into account the matters identified in Section 89.6 those matters are not necessarily to be reflected in any particular arithmetic or definitive way in the money order for compensation made". 282 Therefore, as is my customary practice, I set out below the factors that I have taken into account (not necessarily in any order of priority), in determining the Orders to be made in this matter: · I have found the termination of Mr Azzopardi to be unjust and unreasonable for the reasons set out above. · I have found that it would be impracticable to re-instate Mr Azzopardi to his former position. · Mr Azzopardi had 28 years of unblemished and satisfactory service with SCC. · Mr Azzopardi is 63 years of age and his employment opportunities in the future may be limited. · There is, however, no evidence that Mr Azzopardi made any attempt to find alternate work following his termination. · Mr Azzopardi suffered no real economic loss following his termination as he received workers compensation payments at his appropriate Agreement rate for at least the following 20 weeks, thence dropping to the statutory rate. · In accordance with the Sutherland Shire Council Employees Core Enterprise Agreement (EA05/38) and the Local Government (State) 2007 Award, Mr Azzopardi, having more than five years service, was entitled to "at least five weeks notice or payment in lieu thereof" (emphasis added) on termination. · Mr Azzopardi received neither at least five weeks' notice of termination nor any payment in lieu thereof. 283 Given that Mr Azzopardi continued to be paid workers compensation following his termination, it is the intention of the Commission that the Orders to be made are to redress the failure of Council to pay an appropriate payment in lieu of notice as prescribed by the relevant Award and Agreement listed above. ORDERS 284 Pursuant to s.89 (5) of the Industrial Relations Act 1996, the Industrial Relations Commission Orders that: 1. Sutherland Shire Council shall pay to Simon Azzopardi an amount of compensation equal to six weeks remuneration at the rate applicable to him prior to his termination. 2. The amount of compensation specified above shall be paid within 21 days. 3. The above orders take effect on and from today's date. Elizabeth Bishop 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.