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. Case for the Applicant. 6In his statement marked as an exhibit in the proceedings Mr Samra stated that he was born in October 1960 in India and came to Australia in 1986. He commenced employment in 1991 with the respondent then called Fernz Australia Limited He stated that he injured his back in 1996 and had a few days off work. In April 1998 he injured his back at work and was taken to Fairfield Hospital by ambulance. Since that injury he had been performing selected duties as a leading hand. 7In his statement he set out his responsibilities and duties at work. 8In November 2006 he fell down stairs at work on his back. After a few days off he returned to his leading hand duties. 9On 8 February 2010 he injured his right shoulder at work. The injury was diagnosed as a rotator cuff tendonopathy and bursitis. This injury was unrelated to his previous back injury. 10He stated that after he injured his shoulder he continued to work as a leading hand with unchanged duties until about April 2010 when he was directed by the respondent to see a Dr Clarence Foo. 11Dr Foo certified Mr Samra fit for suitable duties with the restriction of avoiding work above chest height with right hand and a lifting restriction of 10kgs below chest height. 12In April 2010 he was advised by a supervisor that he was being transferred to forklift duties as he was pushing himself too hard as a leading hand. 13On 21 October 2010 Mr Samra received a final medical certificate from Dr Foo stating that he had reached maximum medical improvement and that he was fit to perform permanently modified duties, avoiding work above chest height. 14On 26 October 2010 Mr Samra was given the Return to Work Plan 11 and worked in accordance with this plan. 15On 1 February 2011 he was advised at a meeting at work by Mr Govender that he was no longer the leading hand and from that day on he no longer received the leading hand allowance. 16On 10 February 2011 he was directed by the respondent to see Dr McGroder (consultant occupational health physician) who after examining him, advised him that his shoulder was fine and that he would advise Dr Foo. 17On 16 March 2011 he saw Dr Foo again. Dr Foo advised that he had not received any report from Dr McGroder and that he would only write what he wrote in October. 18On 31 March 2011 Mr Samra saw Dr Kodsi at the request of Mr Stephens of Return to Work Coordinator. Dr Kodsi would only give a certificate concerning Mr Samra's back but not his shoulder. 19On 4 April 2011 Mr Samra attended a meeting at work. Present were company representatives, return to work representatives and a union delegate. He was handed a letter of termination. 20It was Mr Samra's view that he had been doing the same duties since he injured his back on 17 November 2006 until he injured his shoulder in February 2010. Since October 2010 he stated that he had not had any problems with his shoulder. Since that date he stated that he was able to perform all the duties he performed before he injured his shoulder. 21In his statement in reply Mr Samra advised that he had carried out the role of the leading hand without complaint about his performance, his treatment of other members of his team or about the lack of rotation. No allegation was raised that he completed his tasks on the basis of his personal wishes or moods. He chose tasks based on operational requirements. He then listed the tasks that he could safely perform. He worked in line with his medical certificates. He stated that at no time did any manager complain about him not pulling his weight or that his restrictions affected their rotation or created an occupational risk. 22In response to Kirsty Hamilton's statement he stated that he only saw her once in 2010 and he did not see her watching him work on that or any other day. She never spoke to him. At that time he was working with restrictions due to his shoulder injury which has since been cleared. He stated that he never refused any task that he was certified to do. He was guided by his lifting and movement restrictions not by his pain levels. He stated that he performed cleaning duties. He stated that in making up batches, which take about six hours he would require assistance for about 20 minutes and would be limited to lifting bags above 20 kgs. The person assisting him could do other jobs and would not have to standby. 23In reply to Darryl Rafter he again stated that he always worked within his lifting restrictions and only asked for assistance when required. 24In response to Edward McHugh statement, Mr Samra stated that he had not been made aware of any complaints from staff that he had not been treating them right and he denied that he had ever asked a fellow worker to pick up a pen on the ground because he could not bend over. He also denied telling Mr McHugh that he didn't want his job back 25In reply to John Murray's statement he stated that he made sure rotation of the heavy work took place and he himself worked with every member of the team within his medical restrictions to finish the work. 26In cross examination Mr Samra stated that post his injury to his back in 1998 he was carrying out selected duties which included some duties as a leading hand. He confirmed that as a consequence of other injuries that he has sustained he continued to carry out selected duties, in accordance with medical advice, up until his termination and it was that injury in 1998 that still restricts him today. He confirmed that he advised Dr McGrouder that he had constant lower back pain that increases and decreases depending on aggravating factors such as bending, lifting and remaining in one position. 27Mr Samra confirmed that he relied on the medical certificates of Dr Kodsi dated 1 April 2011 and Dr McGroder to support his claim for reinstatement. One stipulates a lifting restriction of above 20 kilograms and suggests that insofar as sitting, travelling, walking, standing up or keying is concerned his ability to perform is limited as tolerated by pain. 28Mr Samra recognised that his Return to Work Plan no 11 which he signed on 21 October 2010 stated " Suitable or light duties are not available on a permanent basis." 29He also agreed that work that he could not do, due to his medical restrictions, he would direct another employee to do the work. He also agreed that in percentage terms the leading hand work equated to 10 to 20% and the rest process work and of the process work he could only perform a limited range. Because of this he agreed that he could not participate in the full rotation of duties of a process worker that other process workers were required to participate in. 30He also accepted that the selected duties that he carried out were not a job as defined by the employer but a collection of duties that were made available to him. 31He also confirmed that the Mr Govender's recollection of their meeting on 4 April 2011 was accurate. 32Since his termination he has sought alternative employment but had not been successful. Case for the Respondent. 33Mr Ginters called nine witnesses. He called six representatives of ParexDavco being Mr Sugan Govender, the National Operations Manager; Mr Dean Bermingham, the Supply Manager; Mr Stephen Shackle, the Occupational Health and Safety Officer; Mr Mathew Murray and Mr Darryl Rafter, process operators working with Mr Samra (and under his supervision as leading hand), and Mr Edward McHugh, a storeman/forklift driver. Mr Murray and Mr McHugh are also NUW delegates at the ParexDavco plant. He also called as witnesses, representatives of the rehabilitation provider for ParexDavco- Rehab Options Injury Management (ROIM): Mr Steve Stephens, the Managing Director; Ms Kirsty Hamilton the work co-ordinator /exercise physiologist, Ms Loekie Stevens, the work co-ordinator /posture and movement therapist. 34Mr Stephen Stephens stated that he is the Managing Director of Rehab Options Injury Management Group (ROIM) and has been supplying outsourced Engaged Return to Work Co ordinator services to industry groups since 1989. ROIM has been approved by WorkCover since 1998. 35In 2008 the respondent approached ROIM, for ROIM to explain how their services would provide an improved injury management process for their workers. In March 2009 NSW WorkCover approved the respondent's application to engage ROIM's services. Since that time he stated that ROIM has managed over thirty injuries and claims for the respondent. Currently the handling officers are Kirsty Hamilton (exercise physiologist) and Loekie Stevens (posture and movement therapist). 36On 20 May 2010 he with Ms Stevens spent the whole day with Mr Samra performing a task analysis. In carrying out the task analysis the whole factory was considered. A plan was developed and provided to and signed by Mr Samra and his supervisor Mr Hanson. 37In February 2011 Mr Stephens attended a meeting at the respondent where an issue of a medical certificate issued by Dr Foo was discussed. The issue of maximum number of weekly hours and the working of overtime would be put to Dr Foo. He also got approval from Mr Samra to send him to a Occupational Physician along with the task analysis. On 21 October 2010 Dr Foo supplied a final permanently modified duties certificate for Mr Samra's right shoulder . 38Mr Samra went to see Dr McGroder on 14 February 2011. The report from the doctor stated that Mr Samra complained of constant low back pain with other associated symptoms. He placed a 20kg lift limit and to avoid repetitive bending. A permanently modified duties certificate was provided. Dr McGroder stated in his report that it was appropriate to have Dr Kodsi supply the same permanent restriction for the back injury. 39On 31 March 2011 Mr Stephens attended the surgery of Dr Kodsi along with Mr Samra for an arranged case conference. While waiting in the reception Mr Stephens advised Mr Samra that it appears appropriate for Dr Kodsi to issue him a final permanently modified certificate for his back since there has not been any change in the certificate he has issued in years. 40Dr Kodsi advised in answering a question from Mr Stephens concerning the likely hood of Mr Samra's condition ever improving to the following effect: "No. He could get worse. I am going to see him every month to see how he is going." A progress WorkCover medical certificate issued by Dr Kodsi on 1 April 2011 stated a restriction of 20kgs in lifting, sitting up to, travelling up to , walking up to , standing up to, keying up to as tolerated with pain with no repetitive bending. 41On 4 April 2011 Mr Stephens attended the respondent's factory at the request of Mr Govender indicating that they were going to speak to Mr Samra concerning his ongoing employment considering his current physical limitations. At the meeting were Mr Samra, two union delegates, Mr Govender and Mr Mehanovic . All medical reports and Dr Kodsi's consistently issued medical certificates were discussed. Mr Shamra was advised and agreed that suitable duties on a permanent basis were not available and the need to consider any OH&S concerns during his rehabilitation. Mr Stephens stated to Mr Samra and it was agreed by him that the respondent had looked to place him but were not able to do so within reasonable operating requirements of the company. 42It was at this meeting that Mr Samra was advised that he would be terminated from the respondent. 43In cross examination Mr Stephens stated that written into the return to work policies that his company produces is that suitable duties are not available on a permanent basis. He also stated that when his company was first called in to help with Mr Samra and spoke with him they discovered that he also had a back injury that had occurred prior to his company being involved therefore in developing a return to work plan they took a more holistic approach so as not to aggravate the back injury. 44Mr Sugan Govender stated that he was the National Operations Manager for the respondent having commenced in May 2010. In his statement Mr Govender outlined the duties of a process worker at the factory. He stated that Mr Samra was appointed a Liquids Plant leading hand/ process worker in 1998. At the time he was on restricted duties because he suffered from a back injury. There were 9 employees in this section but it fell to 8 due to one redundancy in late 2010. It was his view that the leading hand role is about 10% leading and 90 % hands on, doing the process worker's tasks. The respondent has a practise of rotating employees through the heavy work so as workers were not doing heavy tasks each day. He stated that he was advised by other workers that Mr Samra's injuries were preventing him from doing the full role of the leading hand and did not rotate through the duties but only did light duties. The extent of the light duties varied according to the pain tolerance each day. 45He stated that he was requested by his General Manager on or around May 2010 to get involved in attempting to see what could be done to rehabilitate Mr Samra. He sought the involvement of Mr Stephens from RIOM to look at holistic injury management ( shoulder and back ) and also his restrictions. He also spoke with the Production Manager Mr Stephen Shackle as to what duties Mr Sharma did and did not carry out in his leading hand/process workers position. 46Mr Govender also recounted a conversation with Mr Samra in mid November 2010 seeking his desire to return to the leading hand position in the Liquids Plant. Mr Samra was advised by Mr Govender that as he still had some medical restrictions with respect to his back, Mr Govender would want more information prior to returning him to that role. 47Mr Govender recounted a meeting held on 31 January 2011 where Mr Samara was advised he would not be returning to the leading hand position because the tasks required will transgress the limitations on his recent medical certificate. He was told he would loose the leading hand allowance and that he would not be able to do any overtime. In February 2011 the overtime component was recommenced without Mr Samra having to work any additional hours. 48Mr Govender also detailed a meeting held on 4 April 2011 where Mr Samra was terminated. At that meeting Mr Govender outlined the restrictions Mr Samra had and the period of time that he had had them existing. Mr Govender stated that an attempt to find alternative employment had taken place without success. 49Mr Govender did not agree with Mr Samra's view that he could do all the duties he was performing prior to his shoulder injury. The final WorkCover certificate from Dr Foo stated that Mr Samra had "reached maximum medical improvement and is fit for permanently modified duties from 21 October 2010." Also that the worker must " avoid work above chest height." 50Mr Govender stated that it was the report of Dr McGroder in February 2011 that Mr Samra did not have restrictions on his right shoulder but did have restrictions to his back. It was also after having discussions with the Company's previous OH&S Co-Ordinator and with ROIM that Mr Samra had suffered work related back injuries between September 1993 and April 2008 which meant that he had worked with restricted duties on a regular basis during the entire time. It was Mr Govender's evidence that Mr Samra had delegated jobs that he could do, to other staff or get them to assist him. 51He also stated that after discussions with union delegates and other employees, that the employees on site did not want Mr Samra to return to work in the factory as they did not like the way he worked as a leading hand and that he only carried out the light work with the rest of the team doing the heavy work. Mr Govender had a concern that if other employees are doing more of the heavier work than there existed a risk that such employees may injure themselves. The respondent has a job rotation programme that could not operate to its fullest if an employee was on permanent selected duties. 52Mr Govender stated that prior to making a decision about Mr Samra's employment he spoke to the respondent's Human Resources Manager and the Rehab Options to determine whether there were any other roles or duties that Mr Samra could carry out taking into consideration his medical restrictions. He was advised that there were no viable or suitable positions in the organisation. 53The duties Mr Samra carried out were created as part of a return to work plan and were never intended to be permanent duties. Mr Samra understood that they were temporary tasks assigned to him as part of his return to work programme. Even then he had to have other employees assisting him. 54Mr Govender stated that there was no available work for him and that the respondent would have to create a role for him with very limited functions. Another person would have to be employed and assigned to Mr Samra so as he could work in accordance with his restrictions. He believed such a cost in total productivity losses would be $93,640. He also stated that there had been a productivity increase of 8% since the appointment of Darryl Rafter to the Leading Hand position. 55Mr Govender stated that the respondent could not support restricted duties over prolonged periods because of the negative impact on productivity, particularly in circumstances where there is no prospect of the employee returning to pre-injury duties. 56In cross examination Mr Govender stated that the reasons that Mr Samra was terminated was of his inability to carry out the tasks that were due to his medical restrictions and secondly based on the fact that there were no positions available to cater for those limited and restricted duties. He also stated that it was also based on the findings of Dr McGroder's report and Dr Kodsi's inability to give a clearance on Mr Samra's medical condition. 57He stated that he asked for a task analysis to be carried out on 20 May 2010 by Mr Stephens of Rehab Options on all the tasks at the liquids plant as a consequence of being asked by the General Manager to get directly involved in Mr Samra's situation. The information was used to gain an understanding of the tasks in the factory so that there was no re-injury to either his back or shoulder. 58The work of charging of 20 and 25 kg bags into the mixer is an ongoing business activity throughout the shifts. He stated that it would not be viable for an employee to have another employee standing by on an ongoing assistance to lift bags for another employee. That Mr Samra could not do such work Mr Govender could not say from a medical perspective, whether it was his pain limit that avoided him from carrying out certain tasks including charging or whether it was just a medical restriction. 59Mr Mathew Murray stated that he has worked for the respondent for about four years located in the liquids plant all the time. He is the union delegate for the NUW. He stated that whilst working under Mr Samra as leading hand, Mr Samra did minimal work. He found that Mr Samra gave out the orders and all the staff did the heavy work. It was his experience that even the work Mr Samra did do was "light" manual work. There was never any rotation of work when Mr Samra was in charge. He stated that the way Mr Samra ordered employees to pick things up for him was very disruptive. 60In contrast the new leading hand shares out all the work and the staff appreciate the work rotation and all jobs are shared around. When job rotation was not in place he felt that it created extra OH&S risks. 61In cross examination Mr Murray stated that he believed that Mr Samra made the most of his injury to do as little as work as possible. He also stated that if Mr Samra was reinstated then his workload would probably triple and the job rotation would cease and everyone would be getting all the heavy stuff, as it was before. 62Mr Dean Bermingham filed a statement and was subject to cross- examination. He stated that he commenced with the respondent in 1993 as a process worker and was promoted to Supply Manager in 2007. He advised that he became aware of Mr Samra's restricted duties when he took on the role of Assistant Production Manager in October 2003. He stated that between 2004 and 2007 he was approached on many occasions by staff who worked under Mr Samra complaining of Mr Samra's inability to perform the heavy tasks. It was his view that Mr Samra only did particular light work which did not constitute a job or position. Such work was the work he only liked doing. Work that was allocated to him but he did not complete was because his back or shoulder was sore. The appointment of Mr Darryl Rafter as the new leading hand meant that Mr Rafter could do all the work required and work in with all the staff. In his view this has led to greater productivity and has lifted morale. 63Mr Bermingham stated that he was part of a team that was asked by Mr Govender to conduct an analysis of whether or not the Company could gainfully employ Mr Samra considering his work restrictions and the Company's duty of care to the rest of the staff. After looking at the restrictions and available work the agreed outcome was that there were insufficient tasks that he could do that were available considering the exposure to co-workers of the repetition of heavy lifting arising from Mr Samra's restrictions plus also the financial costs and dislocation that were being incurred by the Company. The team also considered if there were any administrative position for him but concluded that there were none. 64He stated that he was shown a task matrix by Mr Govender and Rehab Options who prepared the document. In his view the tasks that Mr Samra could do were unable to be put into any sustainable job position. 65In cross examination it was Mr Bermingham's view that Mr Samra did not perform certain duties because he didn't want to. Complaints he received from fellow workers about Mr Samra were passed on to Mr Shackle. He also believed that there had been an increase in productivity with the appointment of Mr Rafter to the position of leading hand, not only on the basis of his having no work restrictions but also because the workforce has pulled together under his leadership. 66Ms Kirsty Hamilton filed a statement and was required for cross- examination. She stated that she holds the position of Engaged Return to Work Coordinator/Exercise Physiologist with Rehab Management " ROIM". 67In her statement she provided her academic qualifications and advised that she completed the WorkCover " Approved Return to Work Coordinator's" course in July 2010. This means that she is approved by NSW WorkCover to provide Return to Work Coordinator services. In February 2011 she at the request of Mr Govender of the respondent went to their offices to review the medical reports and certificates held in Mr Samra's file in relation to a continuing back injury. She reviewed the medical certificates and the restrictions that applied. It was her understanding that as a leading hand requires about 10% leading hand work and about 90% hands on process work. Mr Samra's back injury prevented him from fulfilling the full requirements of the leading hand role. When he was a leading hand he would perform only about 10% of the hands on role. The rotation system by the workers and leading hand could not include Mr Samra resulting in the other staff doing the heavy work. 68In her statement Ms Hamilton went through the history of Mr Samra's injuries and medical certificates and his work restrictions. She recounted the visits she took to the respondent's premises and her observations of the work Mr Sambra could do and work he could do with assistance. It was her observations that Mr Samra would only do the work he felt he was capable of doing on that day. It was her view that the tasks that Mr Sambra stated he could do and what in her opinion he could safely perform was in reality a collection of various tasks from around the factory which he had performed during the different stages of his rehabilitation. 69From an occupational point of view, it was her view that it is not practical to have Mr Samra in various locations performing only restricted and limited duties. In her view this would be disruptive to the work force. Also some of the tasks that Mr Samra stated that he could do are duties that are ad hoc in nature, that is , they are only required as and when the need is there. Also other tasks nominated eg. packing liquids, would require another worker to be there to carry out the heavier container lifting. 70In her opinion if Mr Samra performed anything other than minimal and limited work, there is a risk he will re injure or further aggravate his back injury. 71Mr Samra was removed from the leading hand job because of his restrictions and the limited work he could perform. The medical certificate from Dr Foo dated October 2010 noted permanent restriction certificate which ruled out "work above chest height." 72She stated that with the appointment of a new leading hand there was an increase in the work of the team due to the rotation of all the work through the team. 73Attached to Ms Hamilton's statement, was a Task Matrix which detailed the work Mr Samra could and could not do. Even with the clearance of any restrictions with respect to his shoulder injury she confirmed in examination in chief that the Task Matrix would stay the same having regard to the back injury. 74Mr Darryl Rafter filed a statement and was required for cross examination. He has worked for the respondent since 2002. Since commencement he was aware of Mr Samra restrictions and the requirement for other staff to do more heavy lifting. He stated that he would be regularly interrupted at whatever doing by Mr Samra to assist him to move a 25kg pail or a drum for him. In his statement Mr Rafter expressed exactly what work Mr Samra would do and work he would not due to his restrictions or pain levels. He stated that since his appointment, the staff have worked with him and productivity has risen by 10%. 75In giving evidence he confirmed that the task analysis that was prepared for the respondent was accurate in its description of the work carried out and the required physical demands. He provided evidence of the physical activities required in the cleaning of pumps and filters which is part of the process workers responsibilities. This was work that Mr Samra was unable to do. He also stated that he never saw Mr Samra do the charging of the batches. He stated that if you can not tip the bags into the mixer you can not really do that job as it is a one man job. The lifting of 40 times a 25 kilos bag into the mixture may take place on average twice a day. He also stated that whilst when Mr Samra was the leading hand he reported him to Mr Shackle for not pulling his weight. It was his view that for the leading hand position the split was 20% to 80% administration to physical work and about 5% to 10% of that would be organising and informing the team of the job to do. 76Mr Stephen Shackle filed a statement and was subject to cross examination. He is currently employed by the respondent as the OH & S officer, which he commenced in March 2011. He commenced with the respondent as the Production Manager in September 1996. In that position he was in charge of processes and controlling the productivity quality and safety of all employees. He recalled Mr Samra injuring his back in 1997-8 which resulted in him being unable to perform heavy lifting work. When Mr Samra was placed in the leading hand role in the Liquids plant, he only performed a limited range of the duties normally expected of a leading hand. In the Liquids plant rotation of work took place with the employees from the heaviest to lightest work. Because Mr Samra could not carry out the heavy work and such work fell on the other employees this caused unrest with those workers. The lighter tasks carried out by Mr Samra did not constitute a stand alone job. 77He stated that he was aware that Mr Samra re-aggravated his back slipping on stairs. He is also aware that Mr Samra injured his shoulder in 2010. As a consequence this resulted in further restrictions which resulted in him not being able to carry out the leading hand role. As a result Mr Darryl Rafter was appointed which resulted in the staff being a lot happier. 78With respect to the limited duties that Mr Samra completed he would do those that he felt capable of doing on the day given his back problems regardless of the set tasks that were on his return to work plan and what was required of him. This resulted in restrictions on productivity and meant other workers had to do extra work as well as their own to cover for Mr Samra. 79He understood that Mr Samra had recovered from his shoulder injury by the end of 2010 but that he remained on permanent restrictions. 80A task analysis was carried out to determine all the physical expectations of the various roles with the respondent. As Mr Samra was still doing selected duties an additional casual employee was employed to assist with the work that Mr Samra could not do. This had a negative impact on the respondent's operations. 81Mr Shackle stated that when the medical evidence stated that permanent restrictions would be necessary he was required by Mr Govender to investigate whether a suitable role existed that met operational needs and its OH &S responsibilities to the entire workforce. After careful consideration he determined that there was not such a position where Mr Samra would be gainfully employed that was productive and met the respondent's operational needs. Also the respondent would have to employ an additional person to do the work that Mr Samra could not carry out. He also did not believe that Mr Samra had the skills for any administrative role. 82He stated that the matrix tabling document that outlined the duties that Mr Samra believed he could do and the respondents comments as to whether he could do them was accurate. 83Mr Edward McHugh stated that he has worked with the respondent for about 18 years as is currently holds the position of Storeman/Forklift driver. He is also the local union delegate and stated that he received complaints from staff telling him that Mr Samra was not treating them right. Complaints ranged from moving a bucket from one place to another to having to pick a pen up of the ground because Mr Samra could not bend over. 84The issue of Mr Samra not being able to carry out any of the heavy lifting resulted in other staff having to do it without them doing the light work. Morale with the workers in the liquids plant is far higher with the new leading hand with the heavy work being shared around. Workers had stated to him that they do not wish to work again under Mr Samra. 85Ms Loekie Stevens filed a witness statement but was not required for cross examination. Ms Loekie stated that she is employed by Rehab Options Injury Management (ROIM) since January 2010 as an Engaged Return to Work Coordinator/ Posture and Movement Therapist. She has completed the WorkCover Return to Work Coordinators Course. 86She said that she met Mr Samra on 20 May 2010 when with others she was required to write a detailed return to work plan and conduct a task analysis for Mr Samra. This was done with Mr Stephens, Mr Rafter and Mr Samra. This exercise resulted in a task analysis document which was provided to the respondent. 87In her statement she went through the medical certificates issued by Dr Foo culminating on 21 October 2010 when the doctor issued the final permanently modified duties certificate indicating that Mr Samra had reached maximum medical improvement and is fit for permanently modified duties with respect to his injured right shoulder, which was to avoid work above chest height from that October date. 88She also stated that Dr Foo told Mr Samra that he was prevented from lifting by his existing restrictions for the back injury which had a 20 kg lifting limit. She was presented at that meeting and denied the version of the meeting given by Mr Samra as expressed in his statement. 89She also attended a case conference with Mr Samra with Dr Foo on 16 March 2011. She stated that Dr Foo when asked about Dr McGroeder's report on Mr Samra's shoulder, he said that if he wanted to obtain a clearance on his shoulder he would have to see his treating specialist. Consideration and Decision. 90The jurisdiction in this matter is found in the Workers Compensation Act, 1987(WC Act). In terms of S241 of the WC Act: "(1) If an injured employee is dismissed because he or she is not fit for employment as a result of the injury received, the employee may apply to the employer for reinstatement to employment of a kind specified in the application. (2) The kind of employment for which the employee applies for reinstatement cannot be more advantageous to the employee than that in which the employee was engaged when he or she first became unfit for employment because of the injury. (3) The employee must produce to the employer a certificate given by a medical practitioner to the effect that the employee is fit for employment of the kind for which the employee applies for reinstatement." Further, s.242 provides as follows: "(1) If an employer does not reinstate the employee immediately to employment of the kind for which the employee has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the employee), the employee may apply to the Commission for a reinstatement order. (2) An industrial organisation of employees may make the application on behalf of the employee. (3) The Commission may not make a reinstatement order, except in special circumstances, if the application was made more than two years after the injured employee was dismissed." And in terms of s.243: "(1) The Commission may, on such an application, order the employer to reinstate the employee in accordance with the terms of the order. (2) The Commission may order the employee to be reinstated to employment of the kind for which the employee has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the employee), but only if the Commission is satisfied that the employee is fit for that kind of employment. (3) If the employer does not have employment of that kind available, the Commission may order the employee to be reinstated to employment of any kind for which the employee is fit, being: (a) employment of a kind that is available but that is less advantageous to the employee; or (b) employment of a kind that the Commission considers that the employer can reasonably make available for the employee (including part-time employment or employment in which the employee may undergo rehabilitation). (4) If the Commission orders the employee to be reinstated, it may order the employer to pay to the employee an amount stated in the order that does not exceed the remuneration the employee would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission." The word "reinstatement" in that context has a wider meaning than is given it in proceedings initiated under Part 6, Unfair Dismissals [Ss.83 to 90] of the Industrial Relations Act 1996, which deals with claims of unfair dismissal. By virtue of s.240(1) of the WC Act, a "reinstatement" is expanded to include "re-employment" (provided that, in terms of s.241(2), the position for which the injured worker applies is not more advantageous than the position he had formerly occupied). The onus of proof is reversed by s.244, ie it is presumed that the employer dismissed the injured worker because of the injury unless the employer satisfies the Commission that the injury was not a substantial and operative cause of the dismissal, viz: "(1) In proceedings for a reinstatement order under this Part it is to be presumed that the injured employee was dismissed because he or she was not fit for employment as a result of the injury received. (2) That presumption is rebutted if the employer satisfies the Commission that the injury was not a substantial and operative cause of the dismissal of the employee." 91In seeking to be reinstated under this section of the WC Act I accept the submission of Mr Ginters for the respondent that for the Commission to make an Order in favour of Mr Samra then Mr Samra would have to satisfy section 241(2) and section 241(3) of the WC Act. This principle is expressed in Cansino v South Western Sydney Health Service. (6) "Employment of a kind" refers to the work as specified in the application. The kind of employment applied for cannot be "more advantageous to the employee" than the work in which the person was engaged when he or she first became unfit for employment because of the injury: s 92(2). What is " more advantageous " may be open to debate having regard to remuneration, general working conditions , status and the like; such debate does not arise in these proceedings. However, the kind of employment for which the employee applies for reinstatement may indeed, at his or her election, be less advantageous to the employee than the pre-injury employment, so long as it is not more advantageous. (7) It is necessary for the person to " produce" (that is ,show) to the former employer a certificate from a medical practitioner. The effect of the certificate, that is its general thrust, must be that the employee is fit to undertake the work as described by the employee when making application for reinstatement 92Mr Samra was a long term employee of the respondent commencing in 1991 and who as a consequence of work place injuries( injured his back in 1996, injured his back again in 1998, injured it again in 2006 falling down stairs and injured his right shoulder in early 2010) had never carried out his substantive position of leading hand/process worker without having restrictions in place. His appointment to the position of leading hand in 1998 took place on the basis that his work restrictions were not permanent. He was taken off this leading hand position in April 2010 and carried out work according to his medical restrictions. Mr Samra had therefore been working under medical restrictions since 1998. During that period he had never worked carrying out the full duties of a process worker. 93I accept the submission of Mr Mueller for the applicant that this matter is not a popularity contest and that the evidence of some of the respondent's witnesses with respect to their negative attitudes towards Mr Samra and his abilities as a leading hand/process worker should not be considered. 94I accept the evidence given by many witnesses that the position of leading hand/process worker is made up of between 10 to 20% leading hand work and the rest process worker work. I accept that the work is labour intensive and much of it is dirty work. All of the functions in the liquid plant, to varying degrees, involve much physical work, constant standing , bending twisting , pulling lifting etc.. I also accept that the duties of each of the process worker positions is defined. The desire of the respondent is to rotate each process worker through each position thereby allowing each process worker to experience each position. This results in an even spread of the heavy and light work throughout the workforce. This clearly results in the respondent meeting its occupational health and safety obligations in providing a safe environment for their employees. As there are only eight employees in this area flexibility is limited. 95Much was stated in this case with respect to the situation that because of the medical restrictions placed on Mr Samra, that such a rotation could not take place to the desired degree and as a consequence the sharing out of the heavy work could not occur. Mr Govender had been made aware that Mr Samra's injuries were preventing him from performing the full range of duties in his role. Mr Samra did not rotate through the duties but only performed light duties. Mr Govender had been advised by other employees that the extent of those light duties which Mr Samra performed actually depended on his tolerance to pain each day. What duties Mr Samra could not carry out would be done by other employees. 96It was accepted by Mr Samra that the selected duties he carried out did not constitute a job or position with the respondent. He also accepted that the duties that he carried out had been identified for the purposes of attempting to rehabilitate him. He also accepted that the duties he carried out was not an option that was going to be available on a permanent basis. 97At the point of termination in accordance with his medical certificates Mr Samra was carrying out selected duties. This had been the case since 1998. 98The respondent had carried out a task analysis within the respondent's factory in May 2010 which identified the task description and the physical demands of each job. Mr Govender also had an examination of the work carried out in the factory and in administration to ascertain whether an alternative position could be found for Mr Samra. No alternative position was found. I accept this evidence. 99The medical evidence of Mr Samra that was placed before the Commission was dated prior to his termination. No current medical certificate was placed before the Commission. 100Dr McGroder report dated 14 February 2011 cleared Mr Samra with respect to his right shoulder. With respect to his back injury he stated that " Mr Samra complains of constant low back pain radiating to his left leg with a feeling of parasthesia in the back of his leg." He also stated that: " he should avoid lifting 20kgs absolute but avoid repetitive bending to lift. He should avoid the maintenance of fixed or awkward positions of the back. Permanently modified duties certificate with the above restrictions for his back would I feel be appropriate." 101The WorkCover Medical Certificate from Dr Foo marked 'Final' and dated 21 /10/10 stated that under the sub heading -Fitness for Work: The worker has reached maximum medical improvement and is fit for permanently modified duties from 21 October 2010. It stated to Avoid work above chest height. 102The medical certificate from Dr Kodsi dated 1 April 2011 stated under the sub heading of Diagnosis: Low back pain & anxiety. A 20 kgs lifting restriction and lifting, sitting, travelling, walking, standing and keying as tolerated with pain, and no repetitive bending. This certificate provided by Dr Kodsi was the same certificate he had been issuing for a number of years. Dr Kodsi responded to a question from Mr Stephens at a meeting on 31 March 2011 and it was accepted by Mr Samra who was present at the time Mr Stehens "Will Mr Samra's condition improve?" Dr Kodsi " No. He could get worse. I am going to see him every month to see how he is going." 103Other than the weight restriction, Mr Samra's working day in what he could do would be governed by " as tolerated by pain" and "without repetitive bending." 104It was the submission of Mr Gieters that Mr Samra had not in accordance with section 241(3) produced a medical certificate to the effect that the employee is fit for employment of the kind for which the employee applies for reinstatement. In that he had not produced such a medical certificate then the Commission does not have jurisdiction to find in favour of Mr Samra. 105It was Mr Mueller's submission that Mr Samra is able to perform almost all tasks as required and the small parts that he can not perform, then assistance can be called for. 106The evidence from the respondent's witnesses in my view told a different story. 107In her evidence Ms Hamilton an Engaged Return to Work Coordinator/Exercise Physiologist, considered what duties Mr Samra had stated that he believed he could do. Annexure 3 to her statement outlined in her view the tasks Mr Samra could and could not do. In her view the limitations identified in annexure 3 would not change with the clearance of Mr Samra's shoulder injury. This was not challenged in cross examination. 108It was her view that the tasks Mr Samra had stated he could do, were a collection of various tasks from around the respondent's factory. These tasks were from different sections of the respondent's factory. In her view these tasks were a d hoc in nature, that is they were only performed when the need was required. I accept this evidence of Ms Hamilton. Her personal observations were that Mr Samra did what he felt he was capable of on any particular day, regardless as to what the tasks for that day were. 109Mr Shackle stated that he was confident that he could not find a position in which Mr Samra could be gainfully employed in a way that was productive and met the Company's operational needs. He also accepted the matrix raised by Ms Hamilton as being accurate based on his knowledge of the roles and his experience of Mr Samra performing light duties. Similar evidence was given by Mr Bermingham with respect to the work carried out by Mr Samra did not constitute a job. He also participated in trying to find alternative gainful employment for Mr Samra. Both Mr Shackle and Mr Bermingham are long term employees of the respondent with a great deal of experience on the factory floor and I accept their evidence. 110I note the Full Bench's comment in Riley v WorkCover Authority at pt.112: We shall look at each of the options in turn but we note that whatever kind of employment is to be considered for the purpose of reinstating the employee, the employee must be fit for the employment. 111Mr Mueller in his final verbal submissions sought an Order for Mr Samra to be reinstated back to his position as a process worker/leading hand. The written order sought was of a general nature without identifying a designation, covering all six sections of the respondent's factory at Wetherill Park. The Commission Orders, pursuant to section 243(2) of the Workers Compensation Act, that ParexDavco (Australia) Pty Ltd reinstate the applicant to employment in connection with the Wetherill Park Facility. This employment may include , but not be limited to work in the following areas: a) Liquids Department: b) Outside Liquids Department; c) Storage; d) Solvent Plant: e) Building 2; and f) Maintenance Department. Other Orders were sought seeking reinstatement within 21 days, back pay less any payment received from workers compensation or other employment and continuity of service. 112Mr Ginters for the respondent stated that the duties that Mr Samra could perform did not constitute the expected duties of employment as a process worker/leading hand, nor are they duties of a position at the respondent's factory. It was his submission that they are an amalgam of duties which can and did require the need for a second worker to assist when Mr Samra could not carry out a particular task. I accept this submission of Mr Ginters. 113It is therefore my finding that Mr Samra has not produced a medical certificate(s)( as required by s.241(3) of the WC Act ) that has the effect that the employee is fit for employment of the kind for which the employee applies for reinstatement. 114I also accept the submission of Mr Ginters with respect to s.241(2) of the Workers Compensation Act. Mr Samra seeks employment which is more advantageous to him then what he carried out when injured back in 1998 as a process worker performing the full range of duties of that position. The position Mr Samra seeks as a leading hand/process worker is premised on Mr Samra being subject to weight limitations, not performing repetitive bending work and otherwise only working" as tolerated with pain". It is therefore my finding that Mr Samra has sought a position that is more advantageous to him. 115Taking into consideration my findings with respect to sections 241 (2) and 241 (3) I find that the Commission does not have the jurisdiction to make the Orders sought by Mr Samra. 116If I were to find that the Commission did in this case have jurisdiction, I note the comments made in Cansino v South Western Sydney Health with respect to the requirement of management to create a position. We are quite unable to construe the relevant provisions as requiring the respondent in some way to create or fashion a job or position to accommodate the circumstances of the appellant. If there be no employment of a kind for which the employee has made application for reinstatement as supported by appropriate medical evidence then in our view the Commission is required to embark upon the inquiries inherent in considering the matters referred to in s 94(3), the nature of which we have earlier referred to. As we have indicated , this requires an examination of the kind of employment available or which can reasonably be made available by the employer. 117I have accepted the evidence of Ms Hamilton, Mr Bermingham and Mr Shackle that there does not exist a job that Mr Samra could do taking into consideration his medical restrictions. It would therefore require the respondent to manufacture a job that does not currently exist. Taking into consideration the desire by management to rotate the heavy work, the added cost of employing an extra person to assist ( Mr Govender's evidence of $93,640), the worth or value of the manufactured job to the respondent and the limited degree of flexibility the respondent has with their small work force I do not think it would be reasonable for the respondent to be required to create such a position. I note also that s. 243(3) is expressed in terms of "may", therefore not making it a requirement of the Commission to make an Order if it did not see fit. 118I dismiss this application. This matter is now concluded. D.RITCHIE COMMISSIONER Amendments 23 February 2012 - The "Before" details "Connor C./ Ritchie C.", amended to read as "Ritchie C" Amended paragraphs: Coversheet 07 March 2012 - Inserted the word "not". Amended paragraphs: 115 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. Decision last updated: 07 March 2012