Industrial Relations Commission New South Wales Medium Neutral Citation: Terrence Hickey and Coles Supply Chain Pty Limited [2012] NSWIRComm 1010 Hearing dates: 8 June 20119 June 2011 Decision date: 15 May 2012 Before: Tabbaa C Decision: Application for re-instatement rejected; Payment ordered for the period 17 August 2009 to 11 December 2009. Catchwords: Reinstatement of injured worker; unfit for previous employment as Order Picker/Packer; Fit for work with modifications or in an alternate position; Commission asked to exercise discretionary power pursuant to s 243 of the Workers' Compensation Act in favour of the injured employee: reinstate him to available employment that is less advantageous to the employee or employment which can reasonably be made available for the employee Legislation Cited: Workers' Compensation Act 1987 Cases Cited: Therese Smith v State Transit Authority of New South Wales [2010] NSWIRComm 1062; Longbottom v South Eastern Sydney & Illawarra Area Health Service [2009] NSWIRComm 1090; Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of NSW [2006] NSWIRComm 108 Moukahal v Star Track Express Pty Limited [2006] NSWIRComm 1159; Big W Discount Stores v Donato [1994] 58 IR 239 Jones v Dunkel (1959) 101 CLR 298 Transport Workers' Union of New South Wales v Lindsay Brothers (No 3) [2010] NSWIRComm 60 Leticia Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355 Category: Principal judgment Parties: Terrence Hickey (Applicant) Coles Supply Chain Pty Limited (Respondent) Representation: Ms B Obradovic, Counsel (Applicant) Mr J Murphy, Counsel (Respondent) Mr P Anjas Byles Anjos Lawyers (Applicant) Mr T McDonald Moray & Agnew Lawyers (Respondent) File Number(s): IRC 1073 of 2010 Judgment 1The Applicant, Terry Hickey, lodged an application on 24 September 2010 seeking reinstatement to his former position pursuant to section 242 of the Workers' Compensation Act 1987 (NSW) (the "Act"). BACKGROUND 2The Coles Group is comprised of Bi-Lo; Coles Supermarkets; Coles Express; Liquorland; K-Mart; K-Mart Tyre and Auto; Officeworks; Target; 1st Choice and Vintage Cellars. The Respondent is now known purely as Coles Logistics - its branding for supermarket logistics delivering groceries to Supermarkets only. Target, K-Mart, and the remainder of the Group are all run as separate businesses as a result of Wesfarmers separating all of the members of the Group. 3There are three Distribution Centres (DCs) - Smeaton Grange (NSW) - which only supplies the Coles and the Coles Express Stores. It employs between 400 - 430 full-time and part-time employees, including salaried administration staff. There are two shifts that operate at this DC in the usual course - Day shift (5 am - 2.16 pm) and afternoon shift (2.16 pm - 11.31 pm); Eastern Creek (NSW) - which only stores Liquor and supplies Liquorland and Vintage Cellars. It employs approximately 400 full-time employees, and some part-time employees, including salaried administration staff. It is a regional DC and so it has the slow moving lines and it also has a very large mechanisation unit and it has liquor. While there may be some similarities in stock, the merchandise at this DC is, in the main, different, from the merchandise at Smeaton Grange. Liquor boxes are heavier. The mechanisation area has some lighter merchandise. This DC houses the Respondent's customer service area, a phone role to assist the various stores to sort out issues about transport. Goulburn (NSW) - which stores exactly the same range as Smeaton Grange but on a much smaller scale. It employs approximately 200 employees, including administration staff They are all pick and pack DCs. As in all of their DCs, all full-time employees rotate through the forklift role, the mechanisation area, the liquor area and the grocery area. The floor staff are covered by a collective agreement. The administration staff in most of the DCs are on individual contracts and are paid a salary. 4Staff at all the DCs work two shifts per day with more employees rostered on the day shift and less employees rostered on the afternoon shift because there is less picking to be done. 5The Occupational Health and Safety provisions that applied throughout the Applicant's employment were the Occupational Health and Safety Regulations 2001 and the WorkCover publications - Manual Handling Hierarchy of Control (copyright WorkCover NSW 0908 - Sept 2008) and Manual Handling for a Safer Workplace Manual. 6Casual staff are not rotated because they do not work every day of the week and therefore do not need respite. Those who perform 30 hours a week might work one long day, one short day, and may be have a couple of days off in between. Part-time employees who work 30 hours a week are rotated through the tasks because they are engaged on a set timeframe. The Respondent initially engaged its casuals directly. They are now engaged through two agencies to ensure that there is a large pool of casuals in order to rotate them around. 7Full-time employees must pick for a minimum of 20% of their full-time hours. There are differing rostering arrangements. A 4-week roster may include a 27-hour week and a 45-hour week within it. An employee working such a roster would have to pick one day in the 27 hour week and one day in the 45 hour week. The administration staff have to pick one day in five so that they maintain their fitness. All others pick at least 50% of the time. Picking is allocated for full days. Each day is 8.77 hours (9 hours in Goulburn). 8In terms of clerical functions, they were described as "specialised skills" - eg dispatch office - employees are required to have knowledge of the RIS system - the system that runs the whole of the Distribution Centre. That system accepts orders placed by the various stores, files it within the computer, prints out the orders for the people to pick and pack and charges out the order once the order has been picked. In addition, that system allocates where the stock is to be located within the DC, what pick bin it is in, and when a pick bin would need replenishing. 9The Employee Rostering System (the ERS) is another computerised system which contains a list of all the permanent and part-time staff. The first role employees are inducted into is picking and packing. Therefore, the first task set into the system is pick and pack. As employees are inducted into other work, eg forklift driving, the information is fed into the ERS. If the RIS system indicates that, for example, 100,000 cartons are to be picked, that number is put into the ERS system which then allocates the job roles for the day. The ERS system also calculates the number of forklift drivers needed on that day; the number of trucks delivering that number of pallets, and so on. It allocates people to different tasks by name ensuring that all fulltime and part-timers are rotated through all of the tasks in that system that they are capable of performing. Employees engaged on suitable duties as a result of a return to work program have to be suspended within the system otherwise unsuitable tasks would be allocated to them. 10The Respondent is self-insured and " WesSAFE Injury Services" is its insurance division. 11WesSAFE Injury Services is structured in such a way that there is a vocational specialist group of people who tend to those employees requiring redeployment. The injured worker would select a rehabilitation provider who will undertake a vocational (functional) assessment to establish a suitable role for that person's rehabilitation within the Coles Group or external to Coles. As training may be required for the role, the rehabilitation provider would consult with the vocational specialist to receive approval for that training. That process would have been followed with Mr Hickey. 12The DC receives an Injury Management Plan from WesSAFE Injury Services every three months following every claims review. The DC would be advised of what has been assessed as the appropriate vocation and training required by the injured employee. For example, Mr Hickey was required to undertake a gym program to strengthen his shoulder. 13The Applicant commenced employment with the Respondent on or about 16 March 2006 as a casual stock selector at the Smeaton Grange Distribution Centre. He held that position until 20 February 2009. 14Between the period 16 March 2006 and 3 January 2008, the Applicant held the position of Team Member on a limited tenure during the following periods: 13 November 2006 - 09 December 2006 26 February 2007 - 29 April 2007 30 April 2007 - 10 June 2007 23 July 2007 - 02 September 2007 15On 3 January 2008, the Applicant sustained an injury to his right shoulder whilst picking and packing 151 water bottles. The Applicant reported the injury to his manager and attended a physician who declared him as unfit for work. 16On 25 February 2008, the Applicant was cleared to return to work on suitable duties for 8 hours per day, 3 days a week. He was assigned duties in dispatch and receiving which involved minimal lifting, pushing and pulling. Those duties continued until the Applicant undertook corrective surgery on his shoulder under the care of Professor Murrell on or about 1April 2008 when he was, once again, declared unfit for work. 17The Applicant was declared fit to return to work in a reduced capacity on or about 4 June 2008. He was cleared to return to work on suitable duties for 4 hours per day, 2 days a week. 18Suitable duties were withdrawn on 20 (26) June 2008. Thereafter, he was under the care of vocational specialists until the termination of his employment. 19The Applicant's restrictions were upgraded gradually as follow: 02 July 2008: 4 hours per day, 5 days a week 16 July 2008: 5 hours per day, 5 days a week 31 July 2008: Restricted to lifting weights of not more than 5 kgs. 14 August 2008:Restricted to lifting weights of not more than 7 kgs. 27 August 2008:Restricted to lifting weights of not more than 8 kgs. 11 September 2008:Restricted to lifting weights of not more than 10 kgs. 09 October, 2008:Restricted to lifting weights of not more than 12 kgs. 14 April, 2008:Restricted to lifting weights of not more than 15 kgs. 20Professor Murrell reviewed the Applicant on 15 September 2008, six months after performing the arthroscopy and stabilisation. He cleared the Applicant fit for all activities. 21On 10 February 2009, the Respondent terminated the Applicant's employment effective from 20 February 2009 on the basis that he was not fit to resume pre-injury duties. 22Mr Hickey worked at the Blue Lagoon Pool Shop on a casual basis, 29 hours per week, when he was declared fit for suitable duties and such duties were not available at Coles. The duties at the Pool Shop included cleaning pools and carrying 20 kg bags of salt, although not above the shoulder. 23The Applicant continued to undergo treatment and, on 13 May 2009, his treating doctor, Dr Law, issued a WorkCover medical certificate assessing him as fit to resume his pre-injury employment. Mr Hickey ceased working at the Pool Shop when he received that assessment. 24On 14 May 2009, the Applicant wrote to the Respondent seeking reinstatement pursuant to s. 241 of the Workers' Compensation Act. To date, the Applicant has not received a formal reply. 25The Applicant's nominated treating doctor, on 10 June 2009, declared him fit for pre-injury duties. 26At the request of the Respondent, Dr Donald Faithfull, examined the Applicant on 1 July 2009. His medico-legal report, dated 10 July 2009, assessed him as follows: "Mr Hickey had a full range of movement in the right shoulder. It is my opinion based on this finding that Mr Hickey has 0% whole person impairment." 27On 17 August 2009, the Respondent's insurance division wrote to Mr Hickey advising that, from the information available to it, including the report from Dr Faithfull, it had formed the opinion that there was no permanent impairment in respect of his injury and therefore was unable, pursuant to section 66 of the Act, to make an offer of settlement in respect of the Applicant's workers compensation claim. 28On 26 May 2010, the Applicant's Solicitors wrote to the Respondent requesting a response to the Applicant's request for reinstatement to his employment in accordance with his request of 14 May 2010. The Respondent was advised that if a response was not received within 14 days the matter would be notified to the Commission pursuant to section 242 of the Act. In the absence of a response, the Applicant's Solicitors, on 15 June 2010, wrote to the Respondent informing it that they were finalising instructions from their client to commence proceedings against it. 29The Applicant filed the application for reinstatement of an injured worker on 24 September 2010. 30The Commission, on 9 November 2010, requested an independent medical assessment of the Applicant. The matter referred for assessment was framed as follows with the assistance of the parties' representatives: Whether, having regard to the material provided in the course of these proceedings, the worker is fit for his previous employment as a Storeman with Coles Group Limited. 31On 19 January 2011, Dr Gregory McGroder provided a further medical certificate declaring the Applicant fit for pre-injury duties with modifications (that is, no picking and packing), or in an alternate position. Dr McGroder recommended that the return to work be part of a structured rehabilitation plan. 32The parties were agreed that all of the medical evidence indicated that the Applicant had substantially recovered from his workplace injury. 33The Applicant submitted that the Commission ought to exercise its discretion in favour of the Applicant in making orders pursuant to s. 243 of the Act: (1)Reinstating the Applicant to: (a)employment of a kind that is available and for which the employee has applied and which may be as advantageous or less advantageous than the pre-injury employment; or (b)employment of any other kind that is available and which is no less advantageous to the employee than that employment applied for; or (c)employment of any other kind, being: (i)employment of a kind that is available but that is less advantageous to the employee; or (ii)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). (2)Awarding the Applicant an amount that does not exceed the remuneration he would, but for being dismissed, have received from 14 May 2009 to date; and (3)Making provision for discounting of the amount in Order 2 by discounting the amount of Workers' Compensation paid to the Applicant from 14 May 2009 to date and remitting an amount equal to the discount to the Workers' Compensation insurer. STATUTORY SCHEME 34Section 243 of the Workers Compensation Act 1987 provides that: 243 Order by Industrial Relations Commission for reinstatement (1) The Industrial Relations Commission may, on such an application, order the employer to reinstate the worker in accordance with the terms of the order. (2) The Industrial Relations Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), but only if the Commission is satisfied that the worker is fit for that kind of employment. (3) If the employer does not have employment of that kind available, the Industrial Relations Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being: (a)employment of a kind that is available but that is less advantageous to the worker, or (b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation). (4)If the Industrial Relations Commission orders the worker to be reinstated, it may order the employer to pay to the worker an amount stated in the order that does not exceed the remuneration the worker 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. 35Section 243 provides for four types of orders, with the requirement that the employee is fit for that kind of employment. Such fitness is to be based on medical evidence: Longbottom v South Eastern Sydney & Illawarra Area Health Service [2009] NSWIRComm 1090 at [32] -[34]. 36The power pursuant to section 243 is discretionary. 37The medical evidence established that the Applicant was fit for his pre-injury position with modifications or an alternate position. The medical evidence established that the Applicant was fit to drive forklifts, operate the loading machines, do dispatch work and clerical work. Those tasks were performed by the Applicant during the periods of his limited tenure employment. THE EVIDENCE 38Mr Hickey confirmed that Dr McGroder had performed a physical examination of him and that part of that examination involved resisted movement of the shoulder. He agreed that he experienced shoulder pain with any movement that was greater than 40 degrees away from the body, particularly on abduction and forward elevation. He also agreed that he had admitted to Dr McGroder that he would have difficulty performing some of the duties of a picker packer. 39Mr Hickey acknowledged that there was no on-going limited tenure work. He stated, in cross-examination, that he accepted the limited tenure work to help the Respondent out because he was capable of performing the duties and tasks associated with such work. He said he did not take that work for the money as it involved a drop in pay. He stated that such work was also disadvantageous to him as it locked him into a 5-day week and he could not pick and choose which days of the week he preferred to work. He conceded that he did not have to accept those offers and would not have applied for them if there was nothing to be gained by him. 40He was receiving $29.6446 gross per hour for a 29 hour week as a casual as at December 2006. Whilst on the limited tenure contracts he was paid $23.795 gross per hour for a 38 hour week plus any applicable shift allowances. He recollected that his take home pay was on par between the two positions. He believed that he gained recognition for his reliability and loyalty whilst engaged on those contracts, "just basically kudos". 41During re-examination, Mr Hickey said he had applied for the limited tenure positions because one or two of the line managers had suggested to him to do that because he would be suitable for the roles. He recalled that one of those line managers was Ms Sophia Rouse from the Smeaton Grange facility and the other was Kim (?) who suggested that the business was looking for reliable, experienced team members to take up these limited tenure positions. 42Mr Hickey denied that he had only made two calls to Ms Sylvia Rowe. He agreed that in the first call he had inquired as to how he could go about getting his job back with Coles. He said he was told he had to make a written application. He disagreed that the second call related to how he could get in touch with Ms Sharon Kennedy. 43In relation to the aggravation of the previous injury which occurred on 11 December 2009 whilst employed at Harvey Norman, he agreed that he had consulted Dr Law who referred him to Macarthur Diagnostic Imaging for an x-ray and ultrasound of his right shoulder. 44It was submitted on behalf of the Respondent that one of the fundamental parts of its case is that to accede to this application would obligate the Respondent to employ the Applicant on a basis which no other employee is employed, that is, on a non-rotational basis. The crux of the case is that the Applicant would not be able to rotate through all the tasks, primarily the picking and packing tasks, and that cannot be acceded to. Sharon Kennedy, NSW Injury Management Manager for the Supply Chain since her return from maternity leave in February 2008, gave evidence that it was her responsibility to manage those issues and she had the expertise to give evidence as to how that can or cannot be done. She had worked for the Respondent as a buyer for 10 years between 1990 and 2000 and part of her role was inventory so she had a very good idea of what was on the floor in relation to weights and measures. Thereafter, she was Human Resources Officer at the Smeaton Grange DC between 2001 and mid 2004. 45Ms Kennedy explained that during peak periods such as Easter and Christmas, the Respondent advertises offers of limited tenure contracts. Limited tenure contracts can run on any shift, albeit limited tenure contracts for night shifts are only offered during peak periods such as between mid November to January of the following year. The night shift is the only non-picking shift. If the limited tenure contract is for night shift, it is initially offered to fulltime employees on day or afternoon shifts prior to the offer being made to casuals. Casuals who go on limited tenure contracts become full-time for the period of that contract and are guaranteed 38 hours work per week. Those on night shift receive a 25 per cent loading, sick leave and annual leave entitlements which are paid at the end of the contract. 46Ms Kennedy noted that Mr Hickey was engaged on four limited tenure night shift contracts - one of them being from 30 April to June 2007 and the other from 23 July 2007 to September 2007. She contended that both of those were anomalies. The limited tenure contract undertaken by Mr Hickey at Easter time occurred while she was absent on maternity leave. She did not know why extra shifts had been run that year as, throughout her employment with the Respondent, they have only been run at Christmas time. 47Casuals are on call. The number of casuals called in varies from day to day as it depends on the volume of work. 48Ms Kennedy pointed out that the Respondent had commissioned a risk assessment of the Distribution Centre by a physiotherapist. The assessment revealed that 15 kilos is the average weight picked, 18.6 kilos are picked occasionally and 25 kilos is the heaviest weight picked. 49The task analysis conducted revealed that 20 kilo items are frequently lifted from floor to waist and overhead and between items weighing between 1-20 kilos are carried. In the last twelve months, since that analysis was conducted, there has been created one 25 kilo item as well (a potting mix) resulting in a further risk analysis being conducted in relation to the additional weight. 50A functional assessment of Mr Hickey was sought by the Respondent. The functional assessment was completed by Independent Physical Assessment Services (IPAS) for the purposes of these proceedings. The physiotherapist, Jill Myburgh, conducted risk assessments on every task within all the Respondent's DCs and came up with what the job requirements were. The functional assessment revealed the frequency and the occasion of the weights lifted in the DC. 51Ms Kennedy disagreed with the comment by Mr Hickey that the primary function of a casual team member is to pick and pack. She pointed out that it is the sole task of a casual employee. 52Ms Kennedy confirmed that part-time workers undertake exactly the same work as full-time workers. Both must pick/pack a minimum of at least one day out of five. On other days, they rotate through the following tasks - receiving, unloading, repacking, pallet rotation, dispatch loading, general administration, maintenance (battery changes), cleaning, operating the sit down forklift Pal-O-Matic (which requires induction training only), operating the high reach forklift (providing they possess a forklift licence). Those who do not possess a fork lift licence use other machines as their rotation. She explained: Yes, what happens is we have what's called an employee rostering system.... everybody starts off picking and packing. As you learn each task or inducted into each machinery, that's added to your name. So all permanent and - or full-time, part-time, whichever way you want to refer to them, people, are put into the employee rostering system. In the morning we might have 100,000,000 cartons to pick that day. So what the rostering system does is we key in, we need to pick 100,000,000 cartons. It will say you will need so many forklift drivers to do letdowns, so many to do put always, so many to load and then everybody else goes onto the pick. So it automatically rosters people through the system and then whatever numbers we don't have to complete the pick function, is where we use the casuals....[for example] once you're inducted on the sweeper, which is a cleaning machine, that gets put into your ERS profile and the system automatically rotate you through all of the tasks that you can do. 53In other words, the Respondent inputs into the ERS profile of an employee what that employee has been inducted to do and, in the case of forklifts, what that employee has been licensed to drive. Tasks, with the exception of picking and packing which are mandatory and are automatically added to every employee's profile, can be added or deleted. For that reason, any employee confined to limited duties for whatever reason needs to be suspended from the automatic rostering system and suitable tasks manually created for them on a short term basis only, that is, over 2 weeks but under six months: A. Up until the doctor tells us that they're not going to recover and the WorkCover hierarchy says that when you become aware that the person won't return to pre-injury duties, you should look to vocational re-deployment for them. 54Ms Kennedy said she played a role in managing Mr Hickey's post-injury employment. When she returned from maternity leave in February 2008 she processed the withdrawal of duties and his subsequent termination in 2009. She was the person responsible for ensuring that the Respondent complied with its legal obligations in relation to the rehabilitation of injured workers by making suitable duties available to Mr Hickey. She contended that Mr Hickey was supplied with suitable duties up until the Respondent was informed, through the Injury Management Program, which was co-ordinated with Dr Law, that Mr Hickey would not be able to return to pre-injury duties. 55Ms Kennedy stated that, occasionally there will be the need for a night shift to be run at Christmas. A notice would have been displayed and, had Mr Hickey been at the DC at that time, he would have had the opportunity to apply for the Christmas 2010 night shift. Whether he was successful depended on operational requirements and how many had applied. 56Although she had been aware, at least since September 2010, that Mr Hickey wanted his job back, she said she did not contact him to advise of the limited tenure contracts because he was not their employee at the time. 57The medical certificate from Dr Law dated 13 May 2009 , which stated that he was fit for pre-injury duties, would have been sent directly to the Return to Work coordinator, Sylvia Rowe, and inserted immediately in his injury management file. 58She accepted that he would have forwarded all of his medical certificates to the Respondent in order to have maintained his workers compensation payments. 59The first medical certificate dated 3 January 2008 from Dr Lee stated that Mr Hickey was unfit for work between 3 January 2008 .... he is then declared fit for suitable duties from 18 February 2008. Ms Kennedy stated that he was provided with some suitable duties in accordance with the medical certificates that were provided. He worked eight hours per day for three days a week on restricted duties. He was given essentially administrative tasks to perform as he had a one kilo lifting restriction. He was required to conduct integrity checks (he would be required to walk up and down the isles with a pen and a clipboard to check that the contents of the report on the clipboard is correct, that is if it says that there is dog food on a shelf that the report was correct); stock on hand counts; and assist in the dispatch office with ripping up orders (part of the normal rotation duties). She explained that integrity checks and stock on hand checks (except at stock take time) were token tasks, albeit useful checks, and are reserved for employees on suitable duties. 60In about 1 April 2008 Mr Hickey had surgery and he was off work for about two months. He returned to suitable duties from 9 June 2008. 61Ms Kennedy pointed out that in the previous Injury Management Plan, Dr Law said that Mr Hickey would return to pre-injury duties within six months. She noted that six months' later, a document generated by Megan Sales and contained in Mr Hickey's Injury Management Plan, stated that, as at 20 June 2008: "Dr Law indicated the prognosis for Terry was good and his next suitable duties upgrade should be around 30 June 2008. Dr Law advised that Terry would be required to continue physiotherapy treatment for approximately six months and should be able to commence her (as said) work related activity program in approximately three months. Dr Law indicated he was unsure as to when Terry may be able to return to pre-injury duties." [emphasis added] 62Ms Kennedy made the following file note on 20 June 2008: "I met with Terry to withdraw duties, explained to Terry the following: .... "Explained to Terry that the decision is based on Dr Law being unclear as to when/if would be able to return to pre-injury duties. Also explained to Terry that if his prognosis changed and he became PID he would need to complete FCE [Functional Capacity Evaluation] prior to his returning." 63Mr Hickey did not upgrade from the one kilogram lifting restriction while on suitable duties at the DC prior to those duties being withdrawn on 25 June 2008 during a meeting he attended with Ms Kennedy. Ms Kennedy advised that the decision to withdraw those duties was made after discussions were held with the managers of the DC about the contents of the injury management plan once it was received from injury services. 64Ms Kennedy agreed that his prognosis did change after that assessment: From 31 July 2008 he was assessed as suitable to lift up to five kilos. From 14 Aug 2008 he was assessed as being able to lift up to seven kilos. From 27 Aug 2008 he was assessed at being able to lift up to eight kilos. From 11 Sept 2008 he was assessed as being able to lift up to ten kilos. From 9 Oct 2008 he was assessed as being able to lift up to 12 kilos. He was not asked to complete a functional capacity evaluation because the functional assessment is based on a return to work on pre-injury duties. 65Once his duties were withdrawn on 25 June 2008 and until his termination on 10 February 2009, the DC had nothing to do with him. There was no contact established with him. He would have been wholly and solely looked after by a vocational specialist at Injury Services. 66Ms Kennedy forwarded a letter to the Applicant inviting him to attend a meeting on 10 February 2009. He would have been given a week's notice of the meeting. Mr Hickey was requested to bring along any medical information regarding his long term prognosis. She had not personally spoken to Dr Law or any other treating medical practitioner at that time. Ms Kennedy said she had seen all of the relevant medical certificates, including the one of 10 February which said that he could lift up to 12 kilograms. Nevertheless, she terminated his employment as at 20 February. 67Ms Kennedy could not recall Mr Hickey saying to her during that meeting words to the effect "I intend to return to work as soon as I'm able to" or asking Mr Kahn who was also at that meeting "You'll take me back when I'm fit won't you?" . She had kept notes of that meeting. She denied that Mr Hickey had made it known to her during that meeting that he had made substantial improvement since his operation in April 2008. She said he showed by the certificates that his lifting capacity was up to 12 kilos but he informed them that he was having a lot of trouble with his left shoulder. He was experiencing a lot of pain in his that shoulder because he was using his left arm to overcompensate for the right arm. She recalled that he made the comment that he would have trouble lifting a milk carton out of the fridge because if he held out his arm he would not have the strength to hold it up. She denied that he told her that he was coping very well. 68Ms Kennedy confirmed that Mr Hickey was not given the opportunity of applying for any alternate roles within the Group at that meeting. Nor did she offer to provide him with more time to gather medical evidence to suggest when he might be fully fit for work. 69Ms Kennedy recalled that she received a telephone call from Mr Hickey after his February 2009 termination and after he received his pre-injury duty certificate asking her what he needed to do if he wanted to apply for his job back. She said she had referred him to Peter Stine, the HR Manager, as employment issues were not within her jurisdiction. 70Ms Kennedy claimed that she saw the letter from Mr Hickey dated 14 May 2009 (in which he sought reinstatement to his old position of casual stock selector as he was certified fit for pre-injury duties) for the first time the previous night when she got home from work and checked her emails. 71Ms Kennedy pointed out that when Mr Hickey commenced employment on 16 March 2004, the Respondent had a pool of about 120 casual employees. As at the time of the hearing, there were only about 8 casual employees at Smeaton Grange. The number of full-time and part-time staff have also decreased. 72Mr Hickey was assessed as working approximately 29 hours per week at $29.64 per hour and his worker's compensation payments were based on that assessment. He was never on a roster but was on a call in basis albeit he would have worked every week for about the 27 to 29 hours every week or thereabouts. 73Ms Kennedy pointed out that the crux of the Respondent's evidence was simply that Mr Hickey cannot be employed because he cannot pick and pack. To accommodate Mr Hickey would result in the company having to change all of the system of rostering and having a special system for Mr Hickey alone. A short term system is available whereby handwritten duties are handed out every day to workers who are on alternate duties. Ms Kennedy gave evidence that "...there would be a lot of repercussions to have that on a long term basis. The first one would be there would be union issues within the...warehouse as well" notwithstanding the fact that Mr Hickey was a union member at the time because the Union members were "very strong on rotation". 74Ms Kennedy explained that if Mr Hickey was provided with a part-time role, his duties would have to be adjusted manually. Another worker, scheduled to drive the forklift, would have to miss out on respite time because Mr Hickey was given that role. In addition, Mr Hickey would not be unable to perform the lifting component on the forklift and therefore a second person would have to be engaged on that shift to assist him to undertake the lifting work. 75Dr McGroder agreed with the assessment conducted by the physiotherapist - Jill Myburgh - that Mr Hickey was not suited to the role. Dr McGroder noted: "She did not comment on alternative work but concluded that if he did not have the capacity to return to his pre-injury duties in an unrestricted manner, I would agree with the findings and the conclusions as have been outlined in this functional assessment." 76The letter noted that the Functional Capacity Evaluation (FCE) results indicate that Mr Hickey is able to work at the medium physical demand level on a full-time basis, provided overhead work and the work at the outer range of the shoulders is minimised. That indicated that there was full-time work which Mr Hickey could meaningfully do subject to that restriction. 77Ms Kennedy agreed that there were no tasks listed in relation to SMG1 which Mr Hickey would not be able to do. There were no actual weights on that task analysis but denied that it was because there would be no weights to be lifted unloading. 78Ms Kennedy agreed with Mr Thornell that Mr Hickey would be of little utility to the Respondent because it takes a million cartons out of that DC a day so the majority of the work involves picking and packing and they need to have all of their full time employees able to do all of the tasks as per the EBA. The following exchange took place during cross-examination: Q.But Ms Kennedy they can't do all of the tasks because not all of your workers are for example licensed to drive a forklift? A. That is correct. Q. So they can't do all of the tasks? A.They have to be physically able so as they go through their training to get a forklift license they would be able to do that. Q. Are you suggesting that there is a plan in place for all 400 workers at Smeaton Grange to be licensed to drive a forklift at some stage? A. I don't know what their eventual numbers are. There's an ad up at the moment for expressions of interest for anyone that would like to... 79The Respondent provides ongoing training to its staff. It is not a requirement of employment, for example, that somebody be able, and licensed, to drive a forklift because the main tasks are picking and packing and everyone must be able to do that except for injured workers who are required to pack and picking becomes part of their return to work plan. 80Ms Kennedy agreed with Mr Thornell that picking and packing constitutes approximately 50 per cent of the rostered hours of full-time employees because they are required to pick a minimum of once a week. "...When you look at the ratio of how many boxes that we picked to the number of staff,... there would be no one that only picked once a week, except for a few". ....our rostering system bases it on the exact number of people which, .... we have X number of full-time people, they'd become rostered out and then that's backfilled with agency casuals. So if you calculated that it took 200 people to do this number of tasks, no matter which tasks Mr Hickey was doing, if there was one component of it that he can't do, somebody else would have to do it, it would be an extra person because it calculates exact to what you need. She disagreed with the proposal that Mr Hickey could do at least half of the tasks contained in the task analysis pointing out that he cannot undertake receiving and unloading duties and cannot operate the high reach forklift because they involve some lifting. In addition, he cannot undertake cleaning duties as those would require lifting of 20 kilo weights. He can, however, do pallet rotation, operate the sit down forklift, general administration, maintenance and cleaning tasks. 81Nevertheless, Ms Kennedy still believed that there was lifting involved in all of the tasks that the Respondent provides. She pointed out that it was nothing personal and that the Respondent would not create a role for anybody, not just Mr Hickey. She agreed that when there was a shortage of staff to do the picking packing, casuals were employed to undertake that work. The Respondent would have to take him out rotational roles because he would not be able to pick (the main function of the warehouse) and that would result in the Respondent taking away respite jobs of others. 82It was put to her that a casual could be employed to do the chores he cannot do on his shift. She responded that employing him on that basis would be akin to him "taking away a role of one of our other full-time workers". 83There are no roles for employees designated as clerical employees. Not everyone of the 200 team members have computer skills. Therefore there is a smaller rotation pool for clerical functions. The majority of the functions of those with computer skills is clerical although all team members must pick pack at least once a week and operate forklifts. Therefore, in her opinion, if Mr Hickey was employed in a clerical function, then someone else would have to be moved out of their position in the clerical function to perform another task. The clerical role would have to be created for Mr Hickey so that he would not have to do picking packing duties. 84It was suggested to Ms Kennedy that a full-time role can be split between Mr Hickey as a part-time employee, working 3 days out of 5, and a casual undertaking two days' work. For example, if Mr Hickey was employed on a part-time basis, 3 days out of 5: ..... So say for example Monday he's in the office, Tuesday he's in the office, Wednesday he's driving around in the forklift, right? Thursday, Friday would be his packing days, picking packing days. He can't come in on Thursday and Friday because he can't pick and pack so instead of having Mr Hickey come in what you do is you get a casual to come in and do those two days worth of work? A. So again I'm creating a role where he would be the only person in the warehouse employed for a casual that isn't required to pick and pack. 85When questioned as to why she had not offered Mr Hickey a full-time position after he provided a pre-injury duties certificate to her in May 2009, Ms Kennedy replied that she was not aware of any application by the Applicant for a full-time role. The only role he had asked for was his pre-injury position as a casual selector as set out in his letter. If he had asked for a full-time position he would have been required to undergo a functional evaluation. 86During re-examination, Ms Kennedy gave evidence that some of the tasks that are allocated to those on suitable duties, for example, integrity checks, are tasks that are not necessary to be done. There was no one on permanent light duties and if the Respondent was to have Mr Hickey on permanent suitable duties, that would impact upon its capacity to provide suitable duties to those who suffer workplace injury and are placed on a return to work program. 87Ms Kennedy pointed out the Respondent commences to assess the situation at around the six month mark to establish whether an injured employee is able to be rehabilitated or to try and establish some timeframes. 88Ms Kennedy stated that at no time prior to, or since filing the application, did Mr Hickey, or indeed anyone on his behalf, take any action or raise any issue with the company as to its non-fulfilment of its obligations pursuant to the various worker's compensation legislation. 89Mr Sam Thornell has been engaged by the Respondent as Day Shift Manager at the Smeaton Grange DC since 4 January 2011. 90Mr Thornell pointed out that since the Applicant's termination, there has been a significant increase in the volume and the range of the lines that the Respondent has in the DC. For that reason, the dynamics in the operation has changed a little bit since that time in that there has been a considerable addition to the migration of the lines or the products that have been added to the business. That change has impacted upon the weight that picker and packers are required to lift in that the average weight has increased from 8-10 kilos to 10-15 kilos. 91He pointed out that if Mr Hickey returned as a casual, all he would be doing is picking and packing. If he were to return as a full-time employee, he would still be required to do some picking. Therefore, there was no job that Mr Hickey could do that would assist the Company. 92He confirmed that both full-time and part-time DC staff rotate through a range of tasks which include picking and packing, unloading and receiving - all of which require some sort of movements of cartons to and from pallets and use of a high reach forklift. 93During cross-examination, Mr Thornell advised that he has not met Mr Hickey and does not know anything about him or his restrictions nor had he read Dr. McGroder's report. 94The full-time employees rotate over a three-week cycle and approximately 50% of their time is spent on picking packing duties. 95He agreed with Ms Kennedy's evidence that all staff must pick at least once a week, which is one out of five days. Nevertheless over a three-week cycle they will spend an average of about 50 per cent of their time on picking and packing. He agreed that they can accommodate people who do not have forklift licences into other duties so long as they can pick and pack. Therefore, if a worker cannot pick and pack they are "pretty much" completely useless to the company. Administrative staff fall outside the EBA which prohibits anyone not covered by that agreement from picking and packing. Casual employees are not rotated through other tasks and are required to do picking and packing for 100 per cent of their hours, somewhere between 20 and 30 hours. He explained that the permanents take preference over casuals in that they "get the higher functions before the casuals do, that's, that's the law of the shed" . In other words, the hierarchy that exists requires full-time employees to be at the top of the feeding chain. Full-timers and part-timers are split amongst all the rotations, for example, forklift driving, working in the office, receiving, despatch, unloading the trucks, to ensure that they are not injured. The casual employees are essentially at the bottom of the feeding chain and they undertake all of the picking and packing. He said that Smeaton Grange is a highly-unionised workplace and warned that there would be industrial consequences in that "the boys would be on the grass pretty quick" if a casual was put on the forklift. 96Mr Thornell said he was not aware that Mr Hickey has a forklift licence. 97As there is an obligation to rotate employees and to assign one function or one role to any employee, not only would the Respondent be in breach of the EBA but to do otherwise would neither be feasible nor reasonable. For example, if Mr Hickey was given a full-time role of receiving/unloading which does not require lifting, then someone else would have to do the lifting. The work done by high reach fork lift is reserved for permanent staff. He stated that if Mr Hickey cannot pick and pack, then there is little utility in employing him. 98Drivers of the High Reach Forklifts are required to frequently lift between 1 to 20 kilograms. 99Mr Thornell pointed out that it was not feasible to have someone engaged to undertake only two tasks - receiving and unloading from pallet rotation and nothing else. Q. And then we have general admin. So if I ask you this generally that - in this task analysis would it be feasible in your view as the shift manager to create a job for an individual - one individual, that only involved those tasks that don't have lifting as a component? A. No it wouldn't. 100Mr Tudor Douglas Stephens is employed as Injury Services Manager by WesSAFE Injury Services. 101Mr Stephens identified a file note that he had typed straight onto his computer during a discussion he had with Mr Hickey on 18 December 2009. As Team Manager, a call was transferred to him from Mr Hickey in the absence of the assigned Case Manager. Mr Hickey provided his claim number which Mr Stephens brought up on the computer system. He noted that the system indicated that the claim had been closed in September 2009 because Mr Hickey had been certified as fit for pre-injury duties by his nominated treating doctor in June 2009. Mr Hickey advised that he had been with his new employer (who he did not identify) for about 12 weeks and had injured himself. Mr Hickey said that he had been told fairly recently that QBE Insurance had rejected his claim. He had attempted to obtain more information from Mr Hickey but was advised that the latter had not been provided with a claim number or any documentation. Mr Stephens said he advised Mr Hickey to seek legal advice as another injury had occurred with another employer and to lodge a claim with CAS of WorkCover because QBE had failed to follow due process and make a determination of liability within 7 days and notify Mr Hickey in writing. 102During cross-examination, Mr Stephens confirmed that he had noted in that file note that QBE may well have been correct in its determination that the claim should be lodged with Coles - not because it was an aggravation of an existing injury (which would be considered a new injury) but because it was a recurrence. He explained that the law stipulated that whoever the claim was lodged against was the leading agent and that Insurer must follow a full process of investigation and liability determination on either acceptance or rejection. QBE had not done that and hence his advice to Mr Hickey to seek legal advice and consult CAS. As far as he was aware, no further claim was made on Coles following that conversation. SUBMISSIONS 103Ms Obradovic submitted, on behalf of the Applicant, that the proceedings were brought pursuant to s 243 of the Workers' Compensation Act 1987. It was pointed out that the statutory procedural process that is required to be applied in such applications was recently set out by Macdonald C in Therese Smith v State Transit Authority of New South Wales [2010] NSWIRComm 1062 (3 December 2010). It was submitted that the Applicant satisfies the criteria set out in the Act: (a)the injured worker is one who receives an injury for which the worker is entitled to receive compensation under the Workers' Compensation Act 1987: Section 240(2). It was submitted that the applicant is an injured worker within the meaning of 240(2) and therefore satisfies that criteria. (b)The injured worker was dismissed because he/she was not fit for employment arising out of the workplace injury: Section 240(1). It was submitted that it is abundantly clear that all of the evidence before the Commission satisfies that criteria. (c)The injured worker is to apply to the employer for reinstatement to "employment of a kind": Section 241 (1). Mr Hickey gave evidence that he telephoned Ms Kennedy and asked how would he apply for his job back. At least that part of the evidence is confirmed by Ms Kennedy. There was no evidence that the letter the Applicant sent on 14 May 2009 and the two letters forwarded by his Solicitors on 26 May and 15 June 2010 seeking reinstatement were not received by the Respondent. (d)The Injured worker is to produce a medical certificate to say that he/she is fit to undertake the work/role (employment of a kind) being sought: Section 241 (3). The Applicant provided the Respondent on 13 May 2009, and again on 10 June 2009, with medical certificates certifying that he was fit to undertake his pre-injury duties. It was submitted that the Applicant has satisfied that criteria in that, at the time that he applied for reinstatement, he was certified fit for pre-injury duties. (e)The applicant's application for employment of a kind was rejected by the Respondent. This entitled the Applicant to make an application to the Commission for a reinstatement order: Section 242 (1). In his statement evidence, Mr Hickey said he sent a letter on 14 May 2009 to his employer seeking reinstatement to his previous position as a casual at the Smeaton Grange distribution centre. Also in evidence were two letters from Triumph Legal Services to Coles Myer Group dated 26 May 2010 and 15 June 2010 respectively seeking the reinstatement of Mr Hickey. It was submitted that the fact that the Respondent did not reply to any of the requests for reinstatement meant that his application was rejected and he was therefore entitled to make the application to the Commission for a reinstatement order. Therefore, that criteria also is satisfied. 104It was submitted that s 243 of the Act provides that four types of orders are open to the Commission to make (per Macdonald C in Longbottom v South Eastern Sydney and Illawarra Area Health Service): 1.Employment of a kind that is available for which the employee has applied and which may be as advantageous or less advantageous than the pre-injury employment; 2. Employment of any kind that is available and which is no less advantageous to the employee than that employment applied for; If the above are not available, then the Commission is empowered to make the following orders: 3.Employment of a kind that is available that is less advantageous; or 4.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. 105It was submitted that the onus in respect of the orders under 243(3) fall squarely upon the shoulders of the Respondent. It is up to the Respondent to prove to the satisfaction of the Commission that these types of roles are either not available or that it is not reasonable for the Respondent to make them available: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of NSW [2006] NSWIRComm 108 (Wright P, Boland J and Connor C). 106In Moukahal v Star Track Express Pty Limited [2006] NSWIRComm 1159, Connor C summarised the position with claims brought on behalf of injured workers. He noted that the employee should be given proper rehabilitation and a chance to be integrated into the workforce where their state of health permits it. He referred to the overriding common law duty to provide a safe working environment. The Commissioner held that the degree of injury may dictate whether an employee may resume work; whether an employee is capable of performing the bulk of the work required of him and whether it may be possible for him to resume work in that capacity with some additional assistance to him. Connor C held that if other work is available for an injured worker to perform, then it would constitute an unfairness to the injured worker if he is not given the opportunity to perform such work and an employer may still be able to accommodate an injured worker in employment with some medical restrictions or performance. The Commissioner stated that the test under part 7 is not whether the injured employee is the best person for the job but simply whether he's suitable for it at all. The Commissioner went on to refer to the Full Bench decision in Big W Discount Stores v Donato [1994] 58 IR 239 where the Commission dismissed an appeal by an employer against an order of reinstatement at first instance for an employee injured at work but nevertheless, in the opinion of the Member hearing the matter, capable of performing the bulk of the range, but not all, of the duties of the position. 107Connor C noted that the Respondent in Moukahal had a workforce in excess of 1000 employees which gave it more scope to accommodate an injured worker than would be the case for a smaller establishment. Ms Obradovic pointed out that the bulk of this Respondent's employees are employed in the Sydney metropolitan area (400-430 at Smeaton Grange and 400 at Eastern Creek) and therefore the task of accommodating an injured worker would be much less onerous than for an employer who has a very small workforce. 108Ms Obradovic submitted that, contrary to what Ms Kennedy understood, the position that Mr Hickey applied for does not need to be a vacant position, it is simply a position that is available with the respondent. If other suitable work is available for an injured worker to perform, it would constitute an unfairness to the injured worker if they are not given an opportunity to perform such work. If some retraining is required they should be given that retraining to assist them in meeting the requirements of that job. 109Mr Hickey did not accept the Respondent's evidence that another employee would have to be displaced to accommodate him. Ms Obradovic argued that the Applicant can be accommodated in a large workforce such as this where the work is available, albeit a restricted role. It was suggested that the Applicant can work four days out of five and a casual employee can be engaged to undertake the other 20% of the picking/packing work that he is not able to do. It was pointed out that the Respondent had admitted that not all of the employees do all of the tasks as tasks are allocated in accordance with whether particular people have licenses to undertake particular jobs. It was submitted that it would be nonsense to suggest that Mr Hickey would require someone to follow him around all day to perform the tasks he would not be able to perform or that it would cost the Respondent $1000 a week to have someone assist the Applicant. 110It was also submitted that the evidence in relation to the incident at Harvey Norman in November 2009 noted a complaint of an aggravation of a previous injury. It was pointed out that it should be read in conjunction with the results of the scan. The Applicant insisted that he had never seen that document before and that document noted that it was a complaint of an aggravation of a previous injury but, importantly, it also noted that he did not have any time off work. It was stressed, nevertheless, that: firstly, the Applicant did not have any time off work; secondly, the scan, taken in December 2009, showed that there were absolutely no abnormalities despite the fact that Mr Hickey, as at October 2009 and up until March 2010, and as noted by Dr McGroder, was engaged by Harvey Norman in moving very heavy electrical and kitchen appliances. Mr Hickey resigned that employment because he was aggravating his shoulder injury. Yet Dr McGroder, despite having access to that information, did not make any finding that the reason why Mr Hickey was unfit to undertake 100% of his duties was because of the injury that may have occurred in or about November 2009 when Mr Hickey was working at Harvey Norman. 111The Commission was reminded of the evidence of Ms Kennedy that tasks are allocated, not only in accordance with whether particular people have licenses to do particular jobs, but also as to whether or not they have been inducted to do particular jobs. It was argued that merely because the major task involves picking and packing does not mean that that task cannot be job shared whether it be a parttimer or whether it be a full-timer or whether it be a casual. It was also submitted that it would be nonsense to suggest that it would cost the company a thousand dollars a week to have someone follow Mr Hickey around all day to assist him to perform the tasks that he would not be able to perform. 112Ms Obradovic submitted that Dr McGroder's evidence must be read together with the medical certificates provided by Dr Law, the evidence given by Dr Faithful and the report from Professor Morrell. Dr McGroder had disagreed with the conclusions drawn by all three in terms of the ability of Mr Hickey to carry out his preemployment duties. He agreed with the functional assessment and conclusions drawn by the physiotherapist, Ms Myburgh. Dr McGroder concluded, based on his own assessment, that Mr Hickey was not suitable to return to his pre-injury duties as he would not be able to perform picking and packing as that task involved reaching into shelves, lifting or dragging objects and some overhead work. Dr McGroder is still of the opinion that Mr Hickey would not be able to perform some of the tasks associated with his pre-injury role. The Commission was asked to assume that the tasks are those identified by Ms Myburgh in the functional assessment she undertook. Dr McGroder agreed that Mr Hickey could drive forklifts, operate the loading machines, do dispatch work and clerical work - duties previously undertaken by Mr Hickey although not classified in the pre-injury duties of order picker packer. 113Dr McGroder disagreed with Dr Faithfull because the latter did not comment on fitness to work. He also disagreed with Dr Law's assessment. He pointed out that Prof Morrell may well have provided a different opinion had he been provided with a job description. He agreed with the findings and conclusions of Jill Myburgh as outlined in the functional assessment. Based on all of that, Dr McGroder came to the conclusion that Mr Hickey would be a suitable candidate for rehabilitation with the aim of returning to work with the same employer in an alternate position: "I feel that Mr Hickey is unfit for his previous employment as a storeman if it involves work as an order picker packer. I conclude that he is fit for work with modifications or alternate work only." It was concluded that, in other words, in Dr McGroder's opinion, Mr Hickey is fit for employment. 114Ms Obradovic concluded, therefore, that the only medical evidence that was available to the Respondent as at the time of Mr Hickey's application (May 2009) and as at the time of his application to the Commission for an order for reinstatement (September 2010) was that Mr Hickey was fully fit for pre-injury duties - according to Dr Law and Dr Faithfull, the doctor the respondent's insurer sent him to. The Insurer cancelled his workers' compensation payments because he was held to have zero per cent whole person impairment and was fit for pre-injury duties. 115In relation to the application for an order under s 243(2), Ms Obradovic submitted that Mr Hickey is fit for employment of the kind that he applied for, with modifications. It was submitted that, if the Commission finds against Mr Hickey on that submission, then pursuant to s 243(3) there is less advantageous employment that can reasonably be made available by the Respondent and in those circumstances the Commission ought to exercise its discretion and order reinstatement. 116Ms Obradovic acknowledged that Mr Hickey might have some restrictions in relation to some tasks which can be performed by other employees and, in particular, casual employees who, on the respondent's evidence, are only employed on picking and packing. On that basis, it was submitted, it would not require any particular accommodation to the way that the business is organised at the present time except that it may require some sort of re-programming of the RIS system which provides a printout every morning as to who is going to do what job. 117It was pointed out that even on that RIS system, not everyone does all the jobs. The evidence of Ms Kennedy indicated that some employees can be suspended from that system and allocated tasks manually. There was no evidence before the Commission as to how or why it would not be possible to modify the system to enable the number one task of picking and packing to be taken out of the duties to be allocated to a particular employee. The Commission was invited to make a Jones v Dunkel inference in relation to that. 118It was submitted that the cost of the modification would neither be unreasonable nor additional nor would it involve a doubling up of the work. Mr Hickey can undertake the majority of the tasks associated with the role, tasks that are both useful and necessary and are normally carried out by full-time, part-time and casual employees. 119The Commission was reminded that Ms Kennedy gave evidence that the casuals and part-timers are not rotated despite some being required to work up to 30 hours a week. On that basis, there is absolutely no evidentiary reason as to why Mr Hickey cannot be accommodated or why a position in which he can be gainfully employed cannot be made available to him. 120Mr Hickey calculated in accordance with the rates in the EBA that he would have earned a total of $138,541.49 over the period from 4 June 2008 to 8 June 2011. The calculations were based on the restrictions on the medical certificates and for the periods where there were no restrictions on the medical certificates; the loss was calculated on the average of 29 hours per week, which are the hours that the Respondent calculated for the purposes of workers compensation payments as well. 121It was acknowledged that in Transport Workers' Union of New South Wales v Lindsay Brothers (No 3) [2010] NSWIRComm 60, Justice Boland [at 39] noted that the onus was on the Applicant to prove that such full-time employment was available throughout the relevant period and that he was capable of performing that work prior to an order being made providing compensation for the relevant period. It was submitted that the onus has been met by the Applicant. The employment of a kind was certainly available and Mr Hickey was certainly fit for the employment of a kind for which he applied from 13 May 2009 up until the medical assessment of Dr McGroder dated 19 January 2011. 122It was stressed that a physiotherapist is not a medical practitioner. The evidence must be medical evidence. In that regard, the Applicant relied on the judgment in Lindsay Brothers in which his honour, the President, made an order for compensation for a period of close to two years - from the time that the injured employee was fit for fulltime employment subject to restrictions. 123Mr Murphy submitted, on behalf of the Respondent, that the compensation order that is quantified in the Applicant's reply statement is clearly not available. Subs (4) of s 243 of the Act clothed the Commission with the discretion to order the employer to pay the worker an amount that does not exceed the remuneration a worker would, but for being dismissed, have received after the making of the application to the employer for re-instatement. On that basis, one cannot backdate the claim before the application for re-instatement was made (14 May 2009). 124Mr Murphy distinguished some of the authorities cited by the Applicant in support of his case. He pointed out that the Full Bench decision in the Riley appeal is authority only for the proposition that "available" does not mean "vacant". The matter was then referred back to the Commissioner, who had dealt with it at first instance, to deal with it on that basis. The Respondent did not demur from that. Donato was an appeal from Commissioner McKenna in an unfair dismissal matter in circumstances where the worker had restrictions. Donato had been integrated into the workforce of Big W and had been working in a capacity over an extended period of time. The decision was based on the proposition that, having accommodated him over that period of time, it was unfair to later dismiss him for not being able to do the full range of storeman duties. It was pointed out that that type of consideration does not arise in this case. The statute under which Mr Hickey seeks relief is quite different and questions of unfair, harsh or unjust do not arise. 125Mr Murphy pointed out that the size of the workforce is irrelevant as there was clear evidence before the Commission that the vast majority of the worker hours performed by that workforce involves picking and packing work which, on any view, the Applicant cannot do. 126It was pointed out that the alternative submission made on behalf of the Applicant that he can be accommodated in the administrative area for 4 days a week is not available to him to make as he has neither applied for a part-time job nor applied for a position in the administrative area. The application, up until this hearing, has always been for his pre-injury job of a casual team member (casual stock selector). Despite the Respondent being a large employer, the evidence indicates that there are a small number of employees engaged in that capacity exercising specialised skills. There was simply no evidence before the Commission that the Applicant possesses, or could posses, the specialised skills required to perform that work. Apart from that, those administrative employees, like all other employees, are required to pick and pack. In addition, Ms Kennedy gave clear evidence that if Mr Hickey was to be placed in an administrative position without the requirement to pick and pack, then one of the current administrative staff would have to be moved out. 127The application before the Commission is confined to the issue of reinstatement of an injured worker and that is the extent of the jurisdiction. Mr Murphy raised a grave concern about the injury sustained on 11 December 2010 while the Applicant was employed at Harvey Norman. A serious legal question arises as to who is the appropriate employer to be the subject of any proceedings as a result of the aggravation of the injury. This is so particularly if it is correct that Mr Hickey was fully fit back in May/June of 2009, he then aggravated his injury in December and now the most recent medical evidence indicates he is unfit. However that issue is not required to be resolved by these proceedings. 128Mr Murphy pointed out that any complaint regarding the cancellation of the Applicant's worker's compensation payments should be pursued elsewhere and ought not to arise in these proceedings. 129It was argued that there is no less advantageous work that the Respondent can make available to the Applicant that is less advantageous than his pre-injury work as a casual team member. 130Mr Murphy pointed out that the only other work identified by the Applicant is clearly more advantageous as it would involve either a permanent full-time position or a permanent part-time position with modification to remove any requirement from both of those forms of employment of having to undertake picking/packing - a large proportion of the work on the floor but a smaller proportion of the work in the dispatch office. Mr Hickey is not therefore permitted to apply to the employer for a part-time job in the dispatch office. The relevant provisions in the Act is about protecting injured workers, not promoting them into high level positions. 131It was pointed out that there is no known precedent where an application such as has resulted in someone "effectively riding the elevator from the lowest level of the feeding chain, as my learned friend has characterised it, namely the casual picker packers, up to the highest level of the feeding chain, namely the permanent workforce". Mr Murphy argued that the provision is not about putting someone in a more advantageous position than they were at the time of their injury. It is about attempting to restore the situation as far as that can be done, consistent with the capacity of the applicant to perform the work. It was pointed out that an examination of the documents tendered by Ms Kennedy will reveal the fluctuating amounts Mr Hickey earned as a casual. That evidence, it was submitted, will clearly reveal that Mr Hickey will be greatly advantaged working as a 4 day part-time employee. It was also pointed out that the real test is whether the Applicant can perform the majority of the tasks associated with the positions he is applying for. It was submitted that it is clear that Mr Hickey cannot perform the majority of the work 132Mr Murphy noted out the application for reinstatement was made to the Respondent in May 2009. The application to this Commission did not occur until September 2010. It was pointed out that there has been no attempt to explain that delay given that the Applicant says he was fully fit for pre-injury duties throughout that period. Nevertheless, the Respondent questioned the contention by the Applicant as to his fitness given Dr McGroder's examination and subsequent report. Mr Murphy submitted that the unexplained delay of in excess of one year is a very pertinent consideration in relation to any claim for back pay. 133It was noted that in his application of 24 September, Mr Hickey sought a re-instatement order as a casual team member, picker and packer. The Applicant relied on the medical clearance for full duties by Dr Phillip Law and the fact that he was ready, willing and able to resume his pre-injury employment. 134In relation to the order that the Commission can make, Mr Murphy submitted that the Commission cannot possibly uphold the proposition by the Applicant that he can undertake his pre-injury duties. As part of its processes, the Commission sent a question to an independent medical specialist, Dr McGroder, seeking a response to the question as to whether the Applicant can undertake his pre-injury work. The answer was a resounding "No" The Commission therefore cannot consider an order to re-instate him to employment of the kind for which he has applied or to any other kind of employment that is no less advantageous to the worker. 135The only other kind of employment that the Respondent can offer also involves picking and packing. The evidence on that is clear and undisputed and he is not fit for that kind of employment. Mr Murphy argued that the Respondent "does have employment of that kind available" - the Applicant's pre-injury employment is still available; employment involving picking and packing is still available; the work for which the Applicant applied to the Respondent in May 2009; and the kind of employment he applied to the Commission for Orders in September 2010. That employment is still available, albeit the number of positions are greatly reduced as there are less casuals directly employed now. The problem is that Mr Hickey cannot undertake that work and therefore the gateway to Section 243 (3) remains firmly closed because it only opens if the Respondent does not have employment of the kind to which he has applied available. 136Mr Murphy conceded that if that gateway was opened to the Applicant, then the Applicant is fit to undertake certain duties. Nevertheless, despite some observations made by Dr McGroder, that was not the question put to him and therefore there is no probative evidence that he is fit to undertake these tasks because Dr McGroder was not asked to make that assessment and that was because the Applicant's claim has always been for reinstatement to his pre-injury duties. 137Mr Murphy relied on the authority in Cansino in which a Full Bench held that an employer, regardless of size, is not required by these provisions to create a position consistent with the restrictions of the applicant. What can be reasonably made available does not extend to that level. 138Mr Murphy insisted that his client was entitled to organise its business in the way that it does and that requires everybody to rotate through all of the functions for which they're trained and for which they're licensed with the focus being on the core function of the business - picking and packing - and everything else being ancillary to that 139Mr Murphy pointed out that it cannot reasonably be made available because it will require significant disruption to the manner in which the business. It was submitted that the Commission is being asked to create a situation where light duties that are used for people who are returning to work on a return to work plan, after a workplace injury, be made a permanent feature of the industrial landscape in this company where it has never been. CONSIDERATION 140Mr Hickey was injured on 3 January 2008. He went off work on worker's compensation. He returned to work on restricted duties on 25 February 2008. On 1 April of that year he had an operation on his shoulder and he was again off on worker's compensation. On 2 April 2008, there was an injury management plan : "Terry had advised Professor Morrell had reviewed him before his discharge from hospital and said he would need to be in a sling for about 2 months". Ms Kennedy gave evidence that Mr Hickey was reviewed by Professor Morrell and he needed to be in a sling for about 2 months and should be able to return to his pre-injury duties in approximately 6 months. 141Mr Hickey, on 4 June 2008, returned on light duties. There was a further injury management plan on 20 June 2008 and in that plan the estimate had gone from 6 months as to when he should be able to return to pre-injury duties to Dr Law being unsure as to when he may be able to return to pre-injury duties. 142On 25 June the light duties were withdrawn and Mr Hickey was placed into vocational retraining on worker's compensation. It is noted that no action was taken on behalf of Mr Hickey at that time. From then on, he continued to provide medical certificates which indicated that he was still only fit for restricted duties and that continued right through into 2009. 143On 10 February 2009, effective from 20 February, his employment was terminated on the basis that he was unable to return to his pre-injury duties, just over a year after the initial injury. He continued to provide medical certificates which indicated he was only fit for restricted duties up until 13 May 2009 when he provided a certificate from Dr Law, which declared him fit for pre-injury duties, a certificate which Dr McGroder, on a more detailed consideration of the situation of the Applicant, disagreed with. 144On 14 May 2009 Mr Hickey faxed a letter to the Respondent making application for his casual position as a casual stock selector. There was a dispute as to whether or not that letter was ever received. In any event, he only applied for his previous casual position of casual stock selector. 145On 17 August 2009, his worker's compensation payments ceased on the basis, according to the evidence, of the certificate of Dr Law declaring him fully fit for pre-injury duties. 146On 11 December 2009, Mr Hickey aggravated his previous injury whilst employed by Harvey Norman. 147On 24 September 2010, almost a year later, he filed the current application before this Commission. 148On 14 October 2010, he undertook a functional assessment. Ms Obradovic submitted that little or no weight should be given to that assessment because it is not medical evidence. As Mr Murphy correctly pointed out, that the assessment was "adopted and embraced and endorsed" by Dr McGroder and that is medical evidence. The functional assessment stated as follows: "The results of the functional capacity evaluation revealed that Mr Hickey has a significant functional strength deficit, 49%, when comparing with results of tests that stress(?) his shoulders compared to non-injured body parts. He did not demonstrate the capacity to perform his pre-injury duties as a store person at Coles without restrictions. Mr Hickey demonstrated the capacity to work in occupations with a medium job demand on a full-time basis but with restrictions on material handling overhead or at outer range. Based on the results of the functional capacity evaluation Mr Hickey's pathology and Mr Hickey's mechanism of injury it is my opinion that he would be a moderate to high risk of re-injuring his right shoulder were he to recommence his pre-injury duties at Coles Distribution Centre et cetera. In addition he would be at moderate risk of sustaining a similar injury." 149I accept the submission put on behalf of the Respondent that were it to ignore the assessment and reinstate the Applicant based on Dr Law's report from 2009, and were the Applicant to re-injure himself, the Respondent would leave itself wide open to not only workers' compensation proceedings but possibly a WorkCover prosecution for breaching the Occupational Heath and Safety Act by creating a known risk to the worker's health and safety. 150The Applicant was examined by Dr McGroder on 14 January 2011. In his assessment dated 19 January 2011, Dr McGroder stated that he based his assessment on the Applicant's file review, his investigation findings and his history in response to examination. He also based his opinion on the fact that, as an Occupational Physician, Dr McGroder had occasion to visit various distribution warehouses and has seen the type of work that was performed as an Order Picker/Packer. 151Dr McGroder concluded that: Based on my assessment today I would conclude that Mr Hickey is not suitable to return to his pre-injury duties at Coles if this involved working as an Order Picker/Packer. One of the major tasks involved in this job is reaching into shelves to either lift or drag objects and this requires using the right arm away from the body with some degree of force. The work also involves some overhead work. Based on my examination findings today Mr Hickey would be unable to perform some of these tasks and to do so would put him at risk of further damage to his, at this point reasonably repaired, right shoulder. To do further damage may result in further shoulder surgery and under these , circumstances a not favourable prognosis. Mr Hickey himself admits that he would have difficulty performing some of the work as an Order Picker/Packer. He does however feel that he could perform some of the alternate tasks that are performed at Coles and that he has done before as a limited tenure employee. I would agree that he could drive forklifts, operate the loading machines, do despatch work and clerical work. Whilst he had previously done these duties my understanding is that they are not classified as his re-injury duties and if pre-injury duties are as an Order Picker/Packer he is unsuitable to return to this type of work.... I do feel however that he would be a suitable candidate for rehabilitation with the aim being to return to work with the same employer in an alternate position.... ....I feel that Mr Hickey is unfit for his previous employment as a Storeman if it involves work as an Order Picker/Packer. I conclude that he is fit for work with modifications or alternate work only. 152Dr McGroder went on to comment on the other medical opinions and findings submitted by the parties and provided reasons why his opinion differed: Dr D Faithfull, Orthopaedic Surgeon, submitted a report on 10 July 2009. Dr Faithfull outlined the successful surgical procedure that had been undertaken by Mr Hickey. Dr Faithfull was asked to assess impairment. He noted on that day a full range of movement of the shoulder and based on this he did not feel that Mr Hickey had any impairment according to AMA 5 Guidelines. I did find some restriction of range of movement today but if Mr Hickey were assessed under AMA5 Guidelines this would be only a small result. The fact that this man has a significant functional deficit of his shoulder however would suggest that he has a greater amount of impairment which demonstrates the limitations of the AMA5 Guidelines. Dr Faithfull does not comment on fitness for work. Dr P Law, Mr Hickey's treating GP, submitted a WorkCover medical certificate dated 10 June 2009 outlying that Mr Hickey is fit for his pre-injury duties. I disagree with this for reasons outlined above. Professor G Murrell, Orthopaedic Surgeon, submitted a report dated 15 September 2009. In this assessment Professor Murrell outlines a good result to the surgery and he has cleared Mr Hickey for all activities. I would venture that had Professor Murrell received a job description of the work as an Order Picker/Packer he may well have changed his opinion with regard to this. Gill Myburgh, Physiotherapist, submitted a functional capacity evaluation report which was performed at Independent Physical Assessment Services in Surry Hills on 14 October 2010. Ms Myburgh's findings were similar to my own with some mild restriction of movement of the shoulder and some weakness of the shoulder muscles. Ms Myburgh concluded that Mr Hickey was unsuitable to return to work as an Order Picker/Packer. She did not comment on alternative work but concluded that he did not have the capacity to return to his pre-injury duties in an unrestricted manner. I would agree with the findings and the conclusion as have been outlined in this functional assessment. 153Dr McGroder stated that Ms Myburgh's timings were similar to his own and he agreed with the findings and conclusions outlined under the heading conclusions/opinions in the Functional Assessment - "The results of the functional capacity valuation revealed that Mr Hickey has a significant functional strength deficit, 49%, when comparing the results of tests ..(not transcribable).. compared to non-injured body parts, he did not demonstrate the capacity to perform his pre-injury duties as a store person at Coles without restrictions".... "based on the results of the functional capacity evaluation of Mr Hickey, pathology and Mr Hickey's mechanism of injury, it would be my opinion that he would be a moderate to high risk of re-injuring his right shoulder where he had to recommence his preinjury duties at Coles". 154It is obvious from his report that Dr McGroder clearly had a thorough grasp of what the work involved. He also took into account in his recitation all of the work undertaken by the Applicant in other employment. His report was very detailed and very thorough. His conclusion was that the Applicant is unfit for his previous employment of if it involves work as an order picker packer which it clearly does. 155The question posed to Dr McGroder was prepared with the assistance and consent of the parties. 156I agree with Mr Murphy that the only position sought by the applicant at all times was that of casual stock selector. The assessment undertaken by Dr McGroder was in relation to that position only and any other comments made by him were mere observations. 157I accept that all the positions offered by the Respondent involve picking and packing tasks which the Applicant cannot undertake given the medical assessment of Dr McGroder. 158There are no other less advantageous positions to place Mr Hickey in - all positions involve picking and packing and, in addition, the role of casual stock selector is at the bottom of the chain. 159Mr Hickey cannot safely be re-instated to his former position. 160Nevertheless, there is a period of time between when he was declared fit for pre-injury duties on 17 August 2009 as a result of a report from Dr Faithfull causing his workers' compensation payments to cease and the aggravation of his injury on 11 December 2009 while working at Harvey Norman. 161I consider that given the lapse of time and in the absence of any conflicting assessment, Dr Faithfull's assessment must be accepted. 162I also consider that there is a legal issue concerning which employer is to be held liable for the aggravation of the injury which occurred whilst employed by Harvey Norman. The only other medical assessment after that injury was that of Dr McGroder who disagreed with the assessment of Dr Faithfull but who embraced the functional assessment undertaken after the aggravation. 163On that basis, I consider that the Applicant is entitled to payment for the period between 17 August 2009 and the aggravation of his injury on 11 December 2009. ORDERS 164The Respondent is to pay to the Applicant a sum that does not exceed the remuneration he would, but for being dismissed, have received from 17 August 2009 to 11 December 2009. 165The Application for reinstatement is rejected. 166The payment is to be made within 21 days of the date of the Order. I Tabbaa AM 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. Decision last updated: 16 May 2012