Knox v State Transit Authority [2013] NSWIRComm 1005

Industrial Relations Commission New South Wales Medium Neutral Citation: Knox v State Transit Authority [2013] NSWIRComm 1005 Hearing dates: 19 November 2012 Decision date: 22 February 2013 Jurisdiction: Industrial Relations Commission Before: Stanton C Decision: Application dismissed Catchwords: Unfair dismissal - termination of employment - bus operator - medical retirement - non-compensable injury - fitness for duty - risk of aggravation when performing inherent requirements of position - assessment of risk - whether dismissal was harsh, unjust or unreasonable Legislation Cited: The Industrial Relations Act 1996 Transport Administration (Staff) Regulation 2005 Cases Cited: Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 PSA (on behalf of Peter Riley) v WorkCover Authority of New South Wales (2006) 151 IR 396 Category: Principal judgment Parties: Rail, Tram and Bus Union (NSW Branch) State Transit Authority of New South Wales Representation: Mr C Preston (Union) with Mr C Knox (Applicant) Mr S McLean (Respondent) File Number(s): IRC 797 of 2012

DECISION 1This matter concerns an application by the Rail, Tram and Bus Union (NSW Branch) (the Union) on behalf of Mr Christopher Knox (the applicant) who was medically retired by the State Transit Authority of New South Wales (the respondent) on 18 June 2012. The applicant commenced employment with State Transit as a Bus Operator on 2 March 1992. 2The applicant sought reinstatement to his former full-time position or monetary compensation. 3Mr C Preston, Divisional Secretary, of the Union appeared for the applicant. Mr S McLean, Workplace Relations Consultant, appeared for the respondent. 4The respondent contended the applicant's medical retirement followed his inability to perform his normal full-time duties from September 2010 due to his ongoing shoulder injuries. 5On 26 September 2010, the applicant was involved in a motor vehicle accident while riding a pushbike to work. He reported injuries to his right shoulder, elbow and hip. The respondent subsequently accepted a workers' compensation claim in respect of that injury. 6The applicant underwent surgery to his right shoulder on 28 March and 17 May 2011. He returned to work on 26 July 2011 on restricted duties. 7On 25 October 2011, the applicant reported pain in his left shoulder after operating a yard scrubber, work which was undertaken in accordance with his approved Return to Work Plan. Shortly thereafter on 2 December 2012, the applicant's treating doctor determined he had an "undiagnosed chronic large to massive left rotator cuff tear" and speculated the tear may not be repairable. 8On 21 February 2012, the respondent denied liability for the injury to the applicant's left shoulder. 9A medical Fitness for Duty appraisal to assess the applicant's fitness as a Bus Operator was conducted in March 2012 by Dr Catherine Field, a consultant physician in occupational medicine. Dr Field confirmed the earlier diagnosis that the applicant had an "undiagnosed chronic large to massive left rotator cuff tear" which may be inoperable. 10Dr Field's report indicated the applicant's shoulder injuries and related conditions rendered him unfit to return to pre-injury duties and he was at risk of aggravating his shoulder injuries should he return to bus driving duties. 11Dr Field concluded the applicant's right shoulder injury had largely recovered and, in her opinion, had reached maximum medical improvement. Insofar as the applicant's left shoulder injury was concerned, Dr Field observed: Chronic left shoulder supraspinatus tendon tear and degenerative disease which has recently become symptomatic. This current episode has improved but in my opinion it has not quite reached maximal medical improvement. 12In light of the applicant's shoulder injury, a supplementary medical report was sought by the respondent to clarify issues concerning his "overhead activities and the likelihood of shoulder pain/aggravation" arising from his bus driving duties. Dr Field's supplementary report determined there was a moderate to substantial risk of aggravating his left shoulder should he return to bus driving duties. She acknowledged the risk might be lower with part-time work: Therefore overall for the left shoulder, aggravation of his left shoulder is possible and the consequence could be an important or serious injury, but the frequency of exposure is only occasional. Using the Risk Score Calculator this gives a moderate to substantial risk. 13Dr Field was not required to give evidence. 14The respondent convened a meeting with the applicant and the Union on 21 March 2012 to canvas the prospect of a return to work on suitable alternate duties. 15During a further meeting convened on 26 March 2012, the applicant was told the respondent had reviewed Dr Field's reports and a decision had been made to medically retire him. The respondent's intentions were subsequently set out formally in correspondence provided to the applicant and he was invited to respond within 14 days setting out the reasons why he should not be medically retired. 16The applicant wrote to the respondent on 10 April 2012 opposing medical retirement. He contended the respondent should afford him a gradual return to work commencing with four hours driving per day. The applicant stated the majority of bus driving duties subject to Dr Field's consideration were "carried out very infrequently". He further contended the tasks that Dr Field considered may aggravate his left shoulder were single handed tasks that could readily be completed with his right hand. 17On 23 May 2012, the respondent's General Manager, Northern Region, Mr Craig Webster informed the applicant that following consideration of the medical evidence concerning his left shoulder he proposed to recommend medical retirement: Medical evidence has confirmed that the aggravation to your left shoulder has ceased and that if you were to return to bus driving you would be at significant risk of further aggravation. As State Transit Authority have a duty of care to all staff, I will be recommending that we should proceed with Medical Retirement. My recommendations and associated medical evidence has been forwarded to the General Manager of Human Resources for review. 18The Applicant replied to Mr Webster on 6 June 2012 requesting he be allowed to return to work on alternative duties, including part-time driving duties. Mr Webster wrote to the applicant on 15 June 2012 to advise that whilst consideration had been given to his request, a decision had been made to proceed with his medical retirement. The General Manager, Human Resources approved the medical retirement on 18 June 2012.