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. The Evidence Applicant 19In a statement filed on 12 September 2012, the applicant set out a chronological history commencing from 26 September 2010 when he suffered the injury to his right shoulder following a motor vehicle accident while riding a push bike to the respondent's Mona Vale depot. 20The applicant deposed he underwent surgery on 23 March and 17 May 2011 and was off work until 26 July 2011 when his treating doctor, Dr Hanna, determined he could commence restricted duties at the Mona Vale depot. In September 2011, Dr Hanna determined he was able to perform suitable duties for six hours per day. 21On or about 25 October 2011, the applicant was directed to commence work at the respondent's Brookvale depot on the grounds there were insufficient suitable duties available at the Mona Vale depot. 22On or about 1 November 2011, Dr Hanna determined the applicant was fit to perform mixed duties, including bus driving and other suitable duties. 23On or about 17 November 2011, the respondent advised him to: Go home and do not report back to work until you can drive 4 hours straight. STA cannot accommodate the restricted hours that Dr Hanna has advised. 24On or about 1 March 2012, the applicant was directed to attend an appointment with Dr Field. On 9 March 2012, Dr Hanna determined the applicant was able to return to full-time work comprising suitable duties and four hours of bus driving per day. 25On 26 March 2012, the respondent wrote to the applicant to advise "it would commence a process to medically retire" him. The balance of the applicant's statement deals with correspondence between the respondent and himself concerning the respondent's decision and his objection to medical retirement. 26The General Manager, Human Resources' approval for medical retirement was conveyed to the applicant in correspondence dated 25 June 2012. 27Dr Hanna determined the applicant was fit to perform pre-injury duties on 14 August 2012. 28In the course of his statement, the applicant referred to six Return to Work plans covering the period 26 July to 28 November 2011 following injury to his right shoulder on 26 September 2010. 29In a Statement in Reply filed on 17 October 2012, the applicant set out a detailed response to Dr Field's findings concerning the applicant's risk of injury when undertaking the following tasks: * Adjusting the steering wheel column. * Operation of the electronic destination display. * Adjusting the overhead rear facing mirror. * Operation of the two way radio. * Inserting or removing his MOT driver's authority card. * Adjusting the bus seat weight dial. * Operation of the manual wheelchair ramp. * Operation of the emergency bus door release. * Emergency response activities. 30The applicant set out the following response with respect to Dr Field's findings regarding risk of injury concerning identified bus driving tasks: * He would adjust the steering wheel column two or three times per week with his right hand "with no effort". * The electronic destination display was operated by a digital pad which required little effort. He would change the destination display "up to half a dozen times a day". * The overhead rear facing mirror requires manual adjustment. The mirror was usually "set". If adjustment was required, he would use his left arm. * The operation of the two-way radio was a simple one using a push button and a small lever. He would use his right arm to operate the radio if and when required. * The insertion and removal of the MOT driver's authority card was conducted at "head height" twice per day. It was a simple operation to slide the card in or out of the operating device and he would use either arm to complete the task. * The bus seat weight dial required winding a screw mechanism "probably every second trip". It was a simple task and he would use his right hand to adjust the seat. * The operation of the manual wheel chair ramp was "more of a reach than weight" and the task was undertaken from outside the bus: "(you) lean in and you pick up - it would be more on the right hand side". The ramp is also used for prams. The task would be undertaken "twice a week...if you're lucky". * Operation of the internal emergency bus door release would be required "a couple of times per week" and required the driver "to stretch with your right hand to access the air control valve. There were also buttons on the outside of the bus to control the doors. This is a simple operation". * There were two emergency response tasks. The first required a switch button to be activated with the left hand "at hip height". The second response was a foot operated switch. 31The applicant referred to surgery performed by Dr Graham McDougall, orthopaedic surgeon, in relation to his right shoulder rotator cuff repair and bicep operations in March and May 2011 and noted Dr McDougall had stated: I recommend a non-operational treatment of his left shoulder as he has been very diligent in gym activities and ocean swimming to restore function. He now has a full range of movement with good functions although there is some weakness as a result of cuff pathology. 32In cross-examination, the applicant disagreed that his medical retirement was due to his left shoulder injury. 33In further cross-examination, the applicant agreed that five of his six Return to Work Plans concerned the injury to his right shoulder. However, he failed to agree that his Return to Work Plans suggested that he was unfit for pre-injury duties. 34The applicant strongly disagreed with Dr Field's assessment of the risk of further injury associated with bus driving duties. Respondent Jay Zmijewski 35In a statement filed on 10 October 2012, Mr Jay Zmijewski deposed he commenced work with the respondent in 2000 and had been employed in a variety of positions including Cleaner, Bus Operator, Operations Standards Officer and Depot Manager. Mr Zmijewski had relieved in the positions of Bus Operator Trainer Level 2, Operations Manager and General Manager Northern Region and was conversant with the respondent's operations, business records, systems and practices. 36In January 2012, Mr Zmijewski was appointed Depot Manager, Mona Vale Bus Depot. Shortly thereafter, he became aware of the applicant's ongoing medical conditions which prevented him from undertaking normal duties as a Bus Operator. Accordingly, a decision was made to have the applicant medically assessed as to his Fitness for Duty and he was subsequently referred to Dr Field for assessment on 1 March 2012. Dr Field's report was attached to Mr Zmijewski's statement. 37On 15 March 2012 the respondent wrote to Dr Field requesting a supplementary report concerning the applicant's fitness based on the Bus Operator's position description and a detailed list of Bus Operator manual tasks and duties. The list of manual tasks was accompanied by relevant photographs of the actual tasks that required Dr Field's assessment. 38On 15 March 2012, Dr Field provided the supplementary medical report concerning the applicant's Fitness for Duty. A copy of Dr Field's supplementary report was attached to Mr Zmijewski's statement. That report concluded the applicant was only fit for part-time driving with restrictions. The applicant was assessed as having a moderate to substantial risk of aggravating either shoulder, but particularly the left shoulder, when performing the inherent tasks required of a Bus Operator. 39Following a request by the Union, a meeting was convened on 21 March 2012 between the applicant, Union representatives and the respondent concerning the respondent's "reluctance" to return the applicant to part-time bus driving duties. Mr Zmijewski deposed he advised the Union he was currently reviewing Dr Field's Fitness for Duty reports and a further meeting would be convened within seven days to communicate the respondent's position. 40The meeting reconvened on 26 March 2012 when the applicant was informed that Dr Field's report determined there was a moderate to substantial risk of injury or aggravation to his left shoulder. Mr Zmijewski informed the meeting the respondent was considering medical retirement. The applicant was subsequently given copies of Dr Field's reports and invited to provide the respondent with submissions setting out why medical retirement should not proceed. 41In correspondence dated 10 April 2012, the applicant set out reasons why he should not be medically retired. Mr Zmijewski deposed he wrote to the applicant on 16 April 2012 and advised him that following consideration of his submissions he proposed to proceed with the medical retirement recommendation. Copies of the relevant correspondence were attached to his statement. 42On 24 May 2012, Ms Kara Hillier, the respondent's Regional Health Services Officer, prepared a report that recommended the applicant be retired on medical grounds in accordance with Clause 27 of the then Transport Administration (Staff) Regulation 2005. Mr Zmijewski deposed he reviewed the report and was satisfied with its recommendation to medically retire the applicant. The report was sent to Mr Webster for consideration and the applicant's medical retirement was approved by the General Manager, Human Resources on 18 June 2012. 43Ms Hillier was not required to give evidence. 44In cross-examination, Mr Zmijewski stated the respondent had not considered Dr Field's suggestion that the applicant be offered a graded return to work commencing with a maximum of four hours driving per day on shorter routes and using, where possible, those buses with electronic destination boards. 45In re-examination, Mr Zmijewski stated he understood Dr Field's prognosis that "using the Risk Score Calculator this gives a moderate to substantial risk" to mean the applicant "could injure himself if he returned to his role as a bus driver". Craig Webster 46Mr Craig Webster was appointed the respondent's General Manager, Northern Region on 8 March 2010. In a statement filed on 10 October 2012, Mr Webster deposed he was responsible for the provision of bus services in the Northern Region of Sydney including the management of 365 buses and 698 full-time employees located across three depots. 47Mr Webster deposed he became aware the applicant was medically unfit to carry out his full duties as a Bus Operator in September 2011. In that regard, he confirmed he was also present during a meeting on 21 March 2012 between the applicant, Union representatives and management to discuss the applicant's prospects for a return to work as a full-time Bus Operator. 48Mr Webster stated that shortly after the meeting on 21 March 2012, the applicant's situation was reviewed by Ms Hillier, Mr Zmijewski and himself. Following consideration of the applicant's ongoing absence from his full-time substantive position and Dr Field's reports dated 1 and 15 March 2012, they decided to investigate the possibility of medical retirement. 49Mr Webster deposed that on or about 22 May 2012 he spoke to Mr Zmijewski concerning the draft contents of a report he was preparing with Ms Hillier recommending the applicant be medically retired. 50On 23 May 2012, Mr Webster wrote to the applicant to advise that he would be seeking approval for a medical retirement. A copy of that correspondence was attached to his statement. 51Mr Webster received Ms Hillier's report on 24 May 2012. The report, which recommended the applicant's medical retirement, had been approved by Mr Zmijewski. Mr Webster subsequently reviewed and endorsed the recommendation to proceed with the applicant's medical retirement on the following grounds: * The respondent's medical retirement procedures had been followed. * The applicant had been given an opportunity to put forward reasons why he should not be medically retired and those reasons had been considered in making the recommendation. * There were reasonable grounds to medically retire the applicant. 52Mr Webster subsequently endorsed the medical retirement recommendation and forwarded Ms Hillier's report to the General Manager, Human Resources for a decision. A copy of the report was attached to his statement. 53On or about 6 June 2012, Mr Webster stated he received a letter co-signed by the applicant and the Divisional Secretary of the Union's Bus and Tram Division, Mr Preston requesting the applicant be allowed to return to part-time restricted duties. In response, he wrote to the applicant on 15 June 2012 to advise the decision to recommend his medical retirement had not been taken lightly and was based on medical evidence. Mr Webster also stated that in his view the medical retirement should proceed. 54Further correspondence was received from the applicant and Mr Preston dated 20 June 2012 requesting a review of the decision to proceed with medical retirement. Mr Webster wrote to the applicant on 25 June 2012 to advise that the General Manager, Human Resources had approved the medical retirement on 18 June 2012. 55In cross-examination, Mr Webster acknowledged the respondent had considered Return to Work Plan No 6 and that consideration had been given to the recommendation concerning four hours of bus driving and four hours of other suitable duties. However, the Return to Work Plan did not make any comment concerning the applicant's left shoulder injury and, specifically, whether the fitness for his return to work was for the left or right shoulder injury. Submissions Applicant 56Mr Preston submitted that while the respondent appeared to be concerned over the length of time the applicant had taken off since his workplace injury in September 2010, the evidence of Mr Webster suggested that he was unclear as to whether the applicant had in fact returned to full duties following the motor vehicle accident. 57Directly after the accident in September 2010, the applicant returned to full duties for approximately six months prior to his first shoulder operation in March 2011. 58Mr Preston contended the respondent had made "a lot" of the applicant's left shoulder and " this was a concern" to the respondent. 59While the decision to medically retire the applicant was based on Dr Field's reports, it was the applicant's evidence that he used his right hand for seven out of nine Bus Operator's tasks assessed by the doctor. Accordingly, it was the applicant's evidence that he only used his left hand for two of the assessed tasks. 60Dr Field also suggested in her report that a workplace trial and a formal functional capacity evaluation would assist her in her deliberations. However, neither the trial nor the evaluation were conducted. 61Mr Preston submitted the applicant was now fit for pre-injury duties. In addition, the Union believed that if the applicant had been allowed to continue to work in March 2012 under his return to work plan, "he would be back to full pre-injury duties as is stated in Dr Hanna's clearance letter". Respondent 62Mr McLean submitted the applicant's dismissal was not harsh, unreasonable or unjust. In support of that proposition, Mr McLean outlined a chronology of events following the September 2010 motor vehicle accident. 63The applicant filed a workers' compensation claim in respect of his right shoulder injury following a motor vehicle accident and liability was accepted by the respondent. 64Following surgery to his right shoulder in March and May 2011, the applicant complained of pain in his left shoulder after operating a walk-around yard scrubber on 25 October 2011 while working alternative duties consistent with his approved Return to Work Plan. 65In early December 2011, the applicant's treating doctor found he had an "undiagnosed chronic large to massive left rotator cuff tear" and expressed doubts whether the tear was repairable. Liability for the applicant's left shoulder injury was subsequently denied on 21 February 2012. 66On 1 March 2012, a fitness to work assessment completed by Dr Field determined the applicant was not fit to return to pre-injury duties and was at risk of aggravating his left shoulder should he return to bus driving. A supplementary report by Dr Field prepared on 15 March 2012 considered the applicant was of moderate risk of aggravating his left shoulder should he return to bus driving duties. 67During March 2012, meetings were convened between the applicant, the Union and the respondent concerning the applicant's return to alternative duties. On 26 March 2012, a further meeting was convened where the applicant and Union were informed that, based on Dr Field's reports, the respondent proposed to proceed with a medical retirement. The applicant was invited to submit within 14 days reasons why he should not be medically retired. 68The applicant responded that he should be given the opportunity to undertake alternative duties including part-time driving activities. Such duties were considered impractical at the time due to the risks associated with such work. 69On 23 May 2012, Mr Webster advised the applicant that following consideration of the medical evidence, he proposed to recommend medical retirement due to his left shoulder injury. The applicant subsequently wrote to Mr Webster on 6 June 2012 again requesting that he be allowed to return to work on alternative duties, including part-time driving duties. 70On 15 June 2012, Mr Webster confirmed the respondent proposed medical retirement which was ultimately approved by the General Manager, Human Resources on 18 June 2012. 71At the time of the applicant's medical retirement he was unable to carry out his normal duties of Bus Operator due to his left shoulder injury. 72The respondent contended the applicant was employed as a full-time Bus Operator and one of the inherent requirements of the job was an ability to operate a bus for the period of his full-time shifts. 73The applicant provided medical certificates from his treating doctor indicating he had been unable to perform his normal duties as a Bus Operator since September 2010. The applicant had also provided medical certificates from his treating doctor supporting his inability to perform his normal duties as a Bus Operator due to a left shoulder injury since October 2011. 74Section 27 of the Transport Administration (Staff) Regulation 2005 enabled the respondent to retire, on medical grounds, an officer, who as a result of a specific infirmity of body or mind, is unable to carry out the inherent requirements of their position. 75The respondent contended that at the time of medical retirement in June 2012 the applicant had not been able to perform his normal full-time duties since September 2010 due to ongoing shoulder injuries. Moreover, the injury to the left shoulder had prevented the applicant from performing his normal duties since October 2011. In that regard, the applicant's treating doctor had also declared him unfit for normal duties. 76The left shoulder injury was a non compensable injury and as such, the respondent's legal obligations were less onerous when compared to compensable injuries. While the applicant had been supported with part-time bus driving and alternative duties to assist his return to pre-injury duties, the respondent submitted it did all that was reasonable to assist in his rehabilitation. 77The medical evidence pointed to a risk of aggravation associated with the applicant returning to driving duties. Accordingly, the respondent contended that it had a right and responsibility to assess and mitigate risks to an employee and to its business. 78The respondent submitted it was not obliged to provide alternative duties on an unlimited basis and had the right to review the provision of alternative duties which it did, based on the prevailing medical evidence. There was no obligation under workers compensation law to provide alternative duties. There were also risks associated with the applicant performing alternative or limited bus driving duties. 79The applicant was advised of the intention and reasons for medical retirement. He was also given ample opportunities to submit reasons against medical retirement and those reasons were considered prior to the respondent making its decision. The applicant was aware the respondent was relying on Dr Field's reports dated 1 and 15 March 2012. However, between March 2012 and 18 June 2012, the date of his medical retirement, the applicant did not provide any alternative up-to-date medical opinion for consideration by the respondent. The decision was made on the information that was reasonably available at the time. 80The respondent stated the decision to medically retire the applicant was made in accordance with the relevant Medical Retirement Procedures. He was afforded procedural fairness and made aware that medical retirement was under consideration. He was given all relevant medical reports and a number of opportunities to submit material opposing the proposed medical retirement. The applicant was also afforded Union representation throughout the entire process. 81The applicant was advised both verbally and in writing of the reason for his termination. The respondent contended that the decision to medically retire the applicant was reasonably justifiable. 82It was the respondent's submission that the medical retirement of the applicant was not: * "unjust" because he was unfit to perform the functions of his job and there were no other permanent alternative duties available to him. He was afforded procedural fairness at all times. * "unreasonable" because the applicant had been unable to perform the full functions of his substantive position for 21 months prior to his medical retirement, which was decided by the respondent on inferences which were reasonably drawn from materials under consideration. The applicant's medical retirement was consistent with the Transport Administration (Staff) Regulation 2005 and the respondent's procedures and policies. * "harsh" because the applicant was carrying an irreparable injury to his left shoulder that carried a risk of aggravation from performing normal duties. Moreover, the "harshness" test was not appropriate in these circumstances because medical retirement can not be regarded as a punishment. 83The respondent also contended the applicant had not produced any evidence concerning his attempts to find alternative full-time employment. Accordingly, the respondent should not be held accountable for the applicant's inability to find full-time alternative employment. In the alternative, should the applicant provide evidence that he has found alternative employment or attempted to find alternative employment, consideration should be given to establish whether those attempts were reasonable. Consideration and Finding 84The applicant was employed by the respondent from 2 March 1992 until his medical retirement on 18 June 2012. 85The applicant sought reinstatement to his former position or, in the alternative, monetary compensation. He did not seek re-employment to another role. 86Section 27 of the then Transport Administration (Staff) Regulation 2005 relevantly states: 27 Retirement of officers on medical grounds If an STA officer becomes, as the result of the onset of a specified infirmity of body or mind, unable to carry out the inherent requirements of the officer's duties, the STA may cause the officer to be retired. 87The applicant was first advised in February 2012 that the respondent was considering medical retirement based on his inability to return to his pre-injury duties. 88Between March 2012 until his medical retirement on 18 June 2012, the applicant had the opportunity to provide alternative evidence, including medical reports to support his case. He failed to do so. The respondent's decision was therefore based on the information that was available at the time. Accordingly, it would be unreasonable for the Commission to consider evidence that was not before the respondent immediately prior to the applicant's retirement. 89It was the respondent's case that at the time of his medical retirement in June 2012, the applicant had not been able to perform his normal full-time duties since September 2010 due to ongoing shoulder injuries. The non compensable injury to his left shoulder had also prevented the applicant from performing his normal duties since October 2011. The applicant's treating doctor had also declared him unfit for normal duties. 90The onus rests on the applicant to prove that he is fit for employment as a bus operator. 91It is an established principle that a long term medical illness or injury that prevents an employee from performing the inherent duties of the position for which he or she is employed constitutes a valid reason for termination: Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [44]. However, the failure by an employer to take reasonable steps to accommodate the employee's limitations may, in certain circumstances, render a termination harsh, unjust or unreasonable: PSA (on behalf of Peter Riley) v WorkCover Authority of New South Wales (2006) 151 IR 396 at [80]. In this case, the applicant's left shoulder injury was not work related. 92On 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. A workers' compensation claim was subsequently accepted for the right shoulder injury. 93Following surgery in March and May 2011, the applicant returned to work on 26 July 2011 on restricted duties in accordance with his Return to Work Plan. He subsequently reported pain in his left shoulder after operating a yard scrubber on 25 October 2011. On 2 December 2011, 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. 94No alternative medical evidence was provided that cleared the applicant to return to his previous employment without restrictions or that he should not be medically retired. It was the respondent's submission that the medical evidence did not certify the applicant fit for pre-injury duties. 95The applicant's Return to Work Plans dealt exclusively with his right shoulder injury. Five Return to Work Plans concerning the applicant's right shoulder injury covering the period 26 July to 11 November 2011 state the following restrictions: * no bus driving * no work above chest height * lifting up to 5 kgs only with both arms * no lifting above chest with right arm outstretched 96A further Return to Work Plan for the period 1 November to 28 November 2011 restricted the applicant to bus driving over a broken shift comprising two hours in the morning and afternoon. The Plan noted this work arrangement could not be accommodated by the respondent at that particular time. The Plan also stated the applicant could undertake bus driving within the respondent's Brookvale depot yard until he was fit to drive for four hours continuously. 97There is no evidence to enable the Commission to conclude that the applicant was fit for employment of the kind for which he applied for reinstatement. Dr Field's medical evidence expressed substantive concerns about the dangers that the applicant would be exposed to if he damaged his rotator cuff tendon, particularly, but not exclusively, as a result of adjusting the steering wheel column and emergency response activities. 98In circumstances where an employee cannot perform their normal pre-injury duties for medical reasons, in this case bus driving, and no alternative employment is available, those circumstances on the evidence in these proceedings clearly constitute a valid reason for termination. 99The applicant argues that he is capable of performing a number of the generic bus driving tasks identified by Dr Field as "risky", with his right hand. Given Dr Field's assesssment of the applicant's injuries and the risk of further injury, the respondent's decision to finally proceed with medical retirement was predicated on the opinion that it could not ensure that in the course of bus driving duties he would not further injure himself. 100I have given consideration to all the extensive material filed and tendered in this matter and the examination of witnesses. Against that backdrop, I have formed the view that the respondent has taken reasonable steps to accommodate the applicant's limitations given he is unable to fulfil the inherent requirements of his substantive position of Bus Operator. 101It was the respondent's case that given the applicant's medical restrictions there was no suitable alternative position available to accommodate him. It therefore follows that the respondent had a valid reason to terminate the applicant in circumstances where he could not perform the inherent requirements of the position of Bus Operator due to the risk of further injury to his right shoulder. 102By this application for reinstatement, the applicant seeks to return to his previous occupation as a Bus Operator. He does not seek re-employment to a different role. This is not an application under the injured worker provisions of the Workers Compensation Act. Bus driving requires the exercise of certain physical tasks on a regular or infrequent basis. The most recent medical evidence did not clear him to return to bus driving without restrictions. 103On the material before the Commission, the applicant was afforded procedural fairness and there was no indication that he was refused the opportunity to have a support person with him at the various meetings with the respondent. 104In conclusion, it is my finding that the respondent, faced with the physical restrictions of the applicant's left shoulder, had no alternative but to medically retire him from his employment in accordance with the provisions of the then Transport Administration (Staff) Regulation 2005. The applicant's dismissal as a result of medical retirement was neither harsh, unreasonable or unjust. The application is dismissed. JD Stanton 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 April 2013