Chau v Visy Board Pty Ltd [2012] NSWIRComm 101

Industrial Relations Commission New South Wales Medium Neutral Citation: Chau v Visy Board Pty Ltd [2012] NSWIRComm 101 Hearing dates: 28 August 2012; 29 August 2012 Decision date: 07 September 2012 Jurisdiction: Industrial Relations Commission Before: Boland J, President Decision: (1) Visy Board Pty Ltd shall reinstate Bien Chau in full time employment as a machine operator on and from the date of this decision, subject to a direction to Mr Chau that he avoids repetitive and awkward lifting and not lift more than 20kg in a static lift or 16kg in a dynamic lift. Mr Chau shall at all times comply with the direction. (2) Whilst Mr Chau has been reinstated as a machine operator and he shall be paid as such, the employer is at liberty to require Mr Chau to perform the work of assistant machine operator from time to time subject to the lifting restrictions identified in order (1) hereof. (3) For the period from the date of his application, namely, 20 October 2011 to the date of this decision (excluding the period 30 July 2012 to 28 August 2012), Visy Board Pty Ltd shall pay to Mr Chau an amount equivalent to what he would have earned if he had been paid at the rate of his ordinary weekly rate of pay less any amount Mr Chau received by way of workers' compensation payments. Catchwords: REINSTATEMENT OF INJURED WORKER - machine operator - applicant terminated on basis that he was unsuitable for the inherent physical requirements of his former role - medical assessment found him fit - reinstatement and lost remuneration orders made Legislation Cited: Workers Compensation Act 1987 Cases Cited: Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355; (1999) 130 IR 1 IGA Distribution Pty Ltd v Moses (No 2) [2002] NSWIRComm 96; (2002) 114 IR 307 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm 108; (2006) 151 IR 396 Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Limited [2008] NSWIRComm 157 Category: Principal judgment Parties: Bien Chau (Applicant) Visy Board Pty Ltd (Respondent) Representation: Mr A Britt of counsel (Applicant) MN Compensation Lawyers (Applicant)