NUW (on behalf of Samra) and ParexDavco [2012] NSWIRComm 1000

Industrial Relations Commission New South Wales Medium Neutral Citation: NUW (on behalf of Samra) and ParexDavco [2012] NSWIRComm 1000 Hearing dates: 01/09/11,03/11/11,04/11/11,05/12/11 Decision date: 16 February 2012 Jurisdiction: Industrial Relations Commission Before: Ritchie C Decision: Catchwords: Application for reinstatement of injured employee. Back injury sustained at work in 1998. Re injured at work on a number of occasions in preceding years. On selected duties from 1998 as a leading hand/process worker up to 2010 then worked as a process worker on selected duties up to his termination. Applicant claimed he could carry out most of the duties, respondent did not agree. Found that applicant sought to be reinstated to a kind of employment more advantageous(s.241(2)) and that he did not produce medical evidence to the effect that he was fit for the kind of employment for which he applied(s241(3)). Application dismissed. Legislation Cited: Workers Compensation Act 1987 Cases Cited: Cansino v South Western Sydney Area Health Service.[1999] NSWIRComm355. Riley v WorkCover [2005] NSWIRComm1025. Category: Principal judgment Parties: National Union of Workers, New South Wales Branch and ParexDavco (Australia) Pty Ltd. Representation: Mr B Swebeck of Hicksons Lawyers for respondent File Number(s): IRC 709 of 2011

DECISION

Background 1On 5 May 2011, the National Union of Workers New South Wales Branch filed an Application for Reinstatement of Injured Worker on behalf of its member Mr Pavitar (Peter) Samra. Mr Samra had been employed as a process worker then a leading hand /process worker and then a process worker by ParexDaveco (Australia) Pty Ltd (the respondent) at its Wetherill Park location. He was terminated on 4 April 2011. The application was for a reinstatement order under section 242 of the Workers Compensation Act, 1987. 2This application was originally allocated to Connor C who carried out two preliminary hearings before the hearing date of 1 September 2011.The applicant proposed to call one witness. The respondent had filed and proposed to call nine witnesses. Prior to commencement the parties set another date for hearing to complete the case. Both parties were aware of Connor's C. imminent retirement from the Commission. 3At that hearing, Mr Samra completed his evidence and the applicant union completed their evidentiary case. The respondent's first witness Mr Stephens had part completed his evidence when proceedings were halted. 4Connor C. then made a Decision dated 1 September 2011. In this Decision he stated: 7. The hearing then commenced and Mr Samra gave evidence and was subject to extensive cross-examination by Mr Ginters. However, when Mr Ginters called his first witness, Mr Mueller raised in issue for the first time whether or not the type of work to which Mr Samra( and presumably the other workers of ParexDavco), chiefly the lifting of weights, was inconsistent with the employer's responsibilities under the Occupational Health and Safety Act 2000, suggesting to me that he is proposing by making that claim that ParexDavco may, in fact, have left itself open to prosecution in that respect. Naturally enough , Mr Ginters objected to that evidence being admitted, arguing that it was not reflected in the evidentiary material provided by Mr Meuller and therefore not something his client had actually addressed in preparing its own evidence. He described that type of evidence as an ambush: I believe that there is some substance in that accusation by Mr Ginters. 8. I therefore indicated that I was not prepared to admit that evidence to be led in the proceedings unless Mr Ginters was at least given the opportunity to consider the matter further and, if necessary, provide his own evidence in response to that serious allegation. I gave Mr Mueller the opportunity to consider his position in that respect but he continued to press that he lead that evidence. That left me with no alternative but to abandon the proceedings. Because of my intending retirement, I am not able to accommodate further days and I must refer the file for reallocation to another member of the Commission. I believe that I have no other course. It is a matter of regret that I find myself in this position, wasting a day that had been set down for hearing but it appears to me to be the only course available. 5The matter was reallocated to myself and a mention of the matter took place on 23 September 2011. On that day further hearing dates were provided and the parties agreed that the evidence that had already been heard by the Commission before Connor C. would stand before this reconstituted Commission. At that mention I also directed Mr Mueller to file and serve an outline of contentions by close of business 14 October 2011 with respect to Ex 4 or its updated substitute.