Industrial Relations Commission New South Wales Medium Neutral Citation: Hickey v Coles Group Supply Chain Pty Limited [2012] NSWIRComm 124 Hearing dates: 8 November 2012 Decision date: 14 November 2012 Jurisdiction: Industrial Relations Commission Before: Boland J, President, Walton J, Vice-President, Bishop C Decision: (1) Leave to appeal in respect of the orders in [164] and [166] of the Commissioner's decision of 15 May 2012 and the decision in respect thereof is granted. (2) The Commissioner's orders at [164] and [166] of her decision are quashed. (3) Leave to appeal in respect of the order at [165] and in respect of the remainder of the Commissioner's decision is refused. Catchwords: REINSTATEMENT - Application by worker seeking reinstatement under Part 8 of Workers Compensation Act 1987 - Application refused at first instance - Compensation ordered in respect of a period when the worker was declared fit to resume pre-injury duties - APPEAL - Application for leave to appeal and appeal by worker - Leave to appeal refused except in relation to compensation order in respect of which leave granted and order quashed Legislation Cited: Workers' Compensation Act 1987 Cases Cited: Terrence Hickey and Coles Supply Chain Pty Limited [2012] NSWIRComm 1010 Category: Principal judgment Parties: Terry Hickey (Appellant) Coles Group Supply Chain Pty Limited (Respondent) Representation: Ms B Obradovic of counsel (Appellant) Mr J Murphy of counsel (Respondent) Byles Anjos Lawyers (Appellant) Moray & Agnew (Respondent) File Number(s): IRC 640 of 2012 Decision under appeal Citation: Terrence Hickey and Coles Supply Chain Pty Limited [2012] NSWIRComm 1010 Date of Decision: 2012-05-15 00:00:00 Before: Commissioner Tabbaa File Number(s): IRC 1073 of 2010 DECISION OF THE cOMMISSION 1This is an amended application for leave to appeal and if leave is granted, appeal, by Terry Hickey from a decision of Tabbaa C in which the Commissioner rejected an application by Mr Hickey that he be reinstated in his employment with the respondent, the Coles Group Supply Chain Pty Limited, pursuant to s 243 of the Workers' Compensation Act 1987 (the "Act"): Terrence Hickey and Coles Supply Chain Pty Limited [2012] NSWIRComm 1010. 2The appellant commenced employment with the respondent as a casual team member on 16 March 2004 at the respondent's Smeaton Grange Distribution Centre. In 2008 he sustained an injury to his right shoulder and was declared unfit for work. He underwent surgery in April 2008. The appellant 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 four hours per day, two days a week. 3Suitable duties were withdrawn in mid-June 2008. Thereafter, he was under the care of vocational specialists until the termination of his employment on 20 February 2009 on the ground that he was not fit to resume pre-injury duties. 4On 14 May 2009, the appellant wrote to the respondent requesting that he be reinstated to his employment. The letter stated, "My doctor has certified me fit for pre-injury duties and therefore I wish to return to CML (sic) in my old position of casual stock selector." On 26 May 2010, the appellant's solicitors wrote to the respondent requesting that the appellant be reinstated in his employment. On 24 September 2010, the appellant filed his application for reinstatement of an injured worker. On 15 May 2012, Tabbaa C rejected the application. In doing so the Commissioner made the following orders: (1)The 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. (2)The Application for reinstatement is rejected. (3)The payment is to be made within 21 days of the date of the Order. 5When the matter came before the Full Bench for hearing on 8 November 2012 the parties were requested to address the issue of leave as a threshold question. Having heard the parties, the Full Bench granted leave in respect of the first of the orders made by the Commissioner and quashed the order and the decision relating to it. In respect of orders (2) and (3) and the remainder of the decision, leave was refused. In that respect, there was a slip. The orders should have been that leave was granted in respect of orders (1) and (3) and the orders and decision relating to them quashed and leave refused in respect of the second order and the remainder of the decision. Reasons follow. 6In respect of the first and third orders, there was no power to make orders for compensation in the absence of an order reinstating the appellant: s 243(4) of the Act. As no such order had been made it was not open to the Commissioner to make orders (1) and (3). 7In respect of the second order, it was not apparent to the Full Bench that there was any error on the Commissioner's part in rejecting the claim for reinstatement. The findings made by the Commissioner were reasonably open to her. Moreover, the appeal did not raise a matter of such public importance that leave should have been granted. 8The Commissioner found, based on medical assessment, the appellant could not undertake the work in which he was engaged when he first became unfit for employment because of his injury and, therefore, could not "safely be re-instated to his former position." We can see no indication of error in that respect. 9Reinstatement orders may be made in accordance with s 243: s 243(1). Section 243(2) of the Act provides: (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. 10Assuming, but without deciding the matter, that s 243(2) enables an order to be made that reinstates a worker to any kind of employment that is more advantageous, as well as employment that is no less advantageous, we have considered the evidence in the context of leave and determined that there is no prospect of the appellant being successful under s 243(2). 11Section 243(3) provides: (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). 12We take the same view in respect of s 243(3)(a) as that expressed in respect of s 243(2). As for s 243(3)(b), that provision is wide enough in scope to have enabled the Commissioner at first instance to have ordered reinstatement of the appellant. However, it is our opinion there is no prospect of the appellant successfully contending on appeal that the respondent could reasonably have made available employment for the appellant given the nature of the respondent's operations in the distribution centre and in circumstances where the medical evidence was that the appellant was restricted in his capacity to perform certain physical tasks. Orders 13The Full Bench confirms the following orders: (1)Leave to appeal in respect of the orders in [164] and [166] of the Commissioner's decision of 15 May 2012 and the decision in respect thereof is granted. (2)The Commissioner's orders at [164] and [166] of her decision are quashed. (3)Leave to appeal in respect of the order at [165] and in respect of the remainder of the Commissioner's decision is refused. ********** 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: 15 November 2012