Industrial Relations Commission New South Wales Medium Neutral Citation: Gardner v Secretary of the Treasury (Department of Justice - Corrective Services NSW) [2014] NSWIRComm 52 Hearing dates: 28 August 2014 Decision date: 02 October 2014 Jurisdiction: Industrial Relations Commission Before: Boland AJ Decision: The Commission makes the following order: The application by Darren Gardner for reinstatement under s 242 of the Workers Compensation Act 1987 is refused Catchwords: REINSTATEMENT - Application for reinstatement under s 241 of the Workers Compensation Act 1987 - Applicant employed as temporary employee on fixed term contract - Application suffered psychological injury at work - Fixed term contract extended for one month following applicant's injury - Applicant's employment came to an end at expiration of period of extension - Whether applicant dismissed because he was not fit for employment as a result of the psychological injury - Meaning of "dismissed" in s 241(1) of the Workers Compensation Act - Whether there is a "dismissal" when contract of employment terminates by effluxion of time - Application refused Legislation Cited: Industrial Relations Act 1991 Industrial Relations Act 1996 Public Sector Employment and Management Act 2002 Workers Compensation Act 1987 Cases Cited: Robinson v Commissioner of Police [2014] NSWIRComm 35 Smith v Director-General of School Education [1993] NSWIRComm 134; (1993) 31 NSWLR 349 Speirs v Industrial Relations Commission of New South Wales & Anor [2011] NSWCA 206 Category: Principal judgment Parties: Darren Jacob Gardner (Applicant) Corrective Services NSW (Respondent) Representation: J Murphy of counsel (Respondent) Ian Collins (Applicant) Corrective Services NSW (Respondent) File Number(s): IRC 357 of 2014 DECISION 1This matter concerns an application for reinstatement of an injured worker under s 242 of the Workers Compensation Act 1987. Background 2Darren Jacob Gardner ("applicant") was employed by the respondent as an Assistant Accommodation Support Worker in the Community Offender Support Program (COSP) of the Department of Corrective Services ("Department") at Malabar. Mr Gardner's employment commenced with the respondent on 30 January 2012. The letter of offer of employment, which Mr Gardner signed as having accepted, indicated that his period of employment was for 12 months. There was no issue that Mr Gardner was a temporary employee for the purposes of the Public Sector Employment and Management Act 2002. 3On 1 December 2012, Mr Gardner suffered a psychological injury. Mr Gardner submitted a claim for workers compensation. At the time Mr Gardner's employment was due to conclude on 29 January 2013 a final decision to accept or decline the workers compensation claim had not been made. Mr Gardner's employment was extended for a period of four weeks from 29 January 2013 to 24 February 2013. Mr Gardner was advised that his "temporary employment will not be extended past the 24/02/13." Mr Gardner's employment came to an end on 24 February 2013. 4Due to his injury, Mr Gardner had not returned to work before 24 February 2013. On 8 March 2013, Mr Gardner filed an application for relief from unfair dismissal under s 84 of the Industrial Relations Act 1996 (IR Act). In the application Mr Gardner asserted that the reason he believed his dismissal was harsh, unreasonable or unjust was "Lack of support by employer then targeted after workers compensation claim." However, it appears that Mr Gardner decided not to pursue that application and it was discontinued. 5On 20 February 2014, the Workers Compensation Commission made consent orders determining that the employer was to pay Mr Gardner certain payments that are unnecessary to identify for the purposes of this decision. 6On 11 March 2014, Mr Gardner's solicitor wrote to the Department claiming that the Department had dismissed the applicant in February 2013 whilst he was off work on workers compensation. It was asserted that Mr Gardner had been unlawfully terminated in breach of Pt 8 of the Workers Compensation Act. 7On 18 March 2014, Mr Gardner obtained a medical certificate to the effect he was "fit to resume his usual duties with support." 8On 4 April 2014, Mr Gardner's solicitor again wrote to the Department repeating what he had stated in his earlier letter and adding that: Our client requests a return to his position or a position of equivalence within 14 days. 9On 7 May 2014, the applicant filed his claim for reinstatement under Pt 8 of the Workers Compensation Act. Evidence 10In addition to documentary material, Mr Gardner gave oral evidence confirming the background outlined above. It was also Mr Gardner's evidence that: (1)he would have continued to be employed by the respondent but for his injury because he had "two opportunities in the pipeline". One of those was a position at John Maroney Correctional Centre at Windsor. Mr Gardner stated that his manager had a discussion with the manager at John Maroney and a transfer had been agreed upon with Mr Gardner to take up a permanent role. However, Mr Gardner accepted this never proceeded past an informal understanding and there was no offer and acceptance such as to constitute a new contract of employment regarding the position at John Maroney. Apparently, COSP at John Maroney was closed down before any contract of employment was formed between Mr Gardner and the respondent regarding the position at John Maroney; (2)he accepted that although COSP was not closed down at Malabar the usual arrangement was that the employment of temporary employees would be terminated to be replaced by permanent employees who had been displaced by the closure of the Program at other centres; (3)although the opportunity for permanent employment at John Maroney had evaporated and that he understood his employment at Malabar would be terminated in order to accommodate displaced permanent employees, Mr Gardner contended that if his employment had not been terminated on 24 February 2013 he would have had an opportunity to apply for other positions within the Department; (4)whilst he knew about a "freeze" on positions prior to being absent on workers compensation Mr Gardner had an expectation his employment would be ongoing past 29 January 2013 because his manager had verbally advised him his temporary employment would continue. However, what Mr Gardner was told by his manager was not put in writing. 11Mr Michael Baldi gave evidence for the respondent. At the relevant time Mr Baldi was Head of Industrial Relations and Workplace Law for Corrective Services. Mr Baldi explained that since Mr Gardner's employment was terminated, a number of COSP facilities had closed including Windsor. Mr Baldi further explained that if a facility closed down at a particular centre any permanent employee at the facility may be subject to be declared excess. The employees may then be eligible for redeployment across the Department into other permanent substantive positions or they may be offered a voluntary redundancy. Any temporary employees may have their employment terminated to make way for displace permanent employees. 12Mr Baldi stated that Mr Gardner's employment was not terminated for the reason he was on workers compensation, but rather because his extended term as a temporary employee had come to an end. Legislation 13The relevant legislation is Pt 8 of the Workers Compensation Act. Section 241(1) enlivens the reinstatement jurisdiction if an employee is dismissed because he or she is not fit for employment as a result of the injury received. Section 241(3) requires the worker to produce a medical certificate to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement. The provisions are in the following terms: 241 Application to employer for reinstatement of dismissed injured worker (1) If an injured worker is dismissed because he or she is not fit for employment as a result of the injury received, the worker may apply to the employer for reinstatement to employment of a kind specified in the application. ... (3) The worker must produce to the employer a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement. 14Section 242(1) allows the worker to apply to the Commission for reinstatement if the employer does not reinstate the worker: 242 Application to Industrial Relations Commission for reinstatement order if employer does not reinstate (1) If an employer does not reinstate the worker immediately 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), the worker may apply to the Industrial Relations Commission for a reinstatement order. 15Section 243 empowers the Commission to order reinstatement if the Commission is satisfied the worker is fit. Section 244(1) presumes the injured worker was dismissed because he or she was not fit for employment as a result of the injury received. However, s 244(2) allows for that presumption to be rebutted: 244 Presumption as to reason for dismissal (1) In proceedings for a reinstatement order under this Part it is to be presumed that the injured worker was dismissed because he or she was not fit for employment as a result of the injury received. (2) That presumption is rebutted if the employer satisfies the Industrial Relations Commission that the injury was not a substantial and operative cause of the dismissal of the worker. Consideration 16Mr Gardner claims that his employment was terminated because he was not fit for employment as a result of the psychological injury he received at work and in respect of which he was entitled to workers compensation. He is seeking an order for reinstatement under s 242 of the Workers Compensation Act, because the employer has refused the applicant's request under s 241 for reinstatement. Mr Gardner has provided a certificate indicating he is "fit to resume his usual duties with support". 17 Mr Collins, for the applicant, stressed the employer's obligations in respect of injured workers and referred to what the Giles JA said in Speirs v Industrial Relations Commission of New South Wales & Anor [2011] NSWCA 206 at [15]-[18] [15] Before any question of reinstatement arises, a worker who has been injured and the worker's employer have rights and obligations in relation to return to work. [16] One of the objectives of the WIM Act, with which the WC Act is to be construed as if it formed part (WC Act, s 2A(2); WIM Act, s 60(2)), is to provide treatment and management of injuries and rehabilitation following injuries in order to promote the return to work of injured workers as soon as possible (WIM Act, s 3(a)). Section 41(1) of the WIM Act provides that the object of Ch 3 of that Act is "to establish a system that seeks to achieve optimum results in terms of the timely, safe and durable return to work following workplace injuries". By s 41A, the requirements of Ch 3 "apply even where there is a dispute as to liability". [17] Within Ch 3, s 48 provides - " 48 Injured worker's obligation to return to work An injured worker must make all reasonable efforts to return to work with his or her pre-injury employer (that is, the employer liable to pay compensation to the worker) as soon as possible, having regard to the nature of the injury." [18] Section 49(1) correspondingly provides - " 49 Employer must provide suitable work (1) If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker." 18The respondent, on the other hand, has sought to rebut the presumption that Mr Gardner was dismissed because of his injury. 19The respondent's contention was that Mr Gardner's temporary employment was extended for four weeks because his workers compensation claim had not been resolved. The claim had still not been resolved at the end of that four week extension period, but Mr Gardner's employment came to an end, nevertheless, not only because he had been told there would be no further extension, but also because any ongoing employment opportunities with the Department had been closed off with the closing down of COSP at centres other than Malabar. In respect of Malabar, permanent employees who had been displaced needed to be accommodated at Malabar. 20It was also submitted for the respondent that there was no dismissal by the employer: that the temporary employment contract - a fixed term contract - came to an end as a consequence of the effluxion of time. 21Mr Gardner accepted that a position at John Maroney, to which he hoped to be transferred became unavailable because of a freeze imposed by the Department on positions and/or a restructuring had occurred, which meant that COSP no longer operated at Windsor. Whilst COSP continued at Malabar, it was also accepted by Mr Gardner that he would not have continued his employment at Malabar because permanent employees displaced at other centres would be given priority of employment in COSP at Malabar and, consequently, his temporary employment would be terminated. 22Mr Gardner's position appeared to be, nevertheless, that he should have been kept on in temporary employment at Malabar whilst on workers compensation in order that he could apply for other positions within the Department once he returned to work. Mr Gardner stated that he was told by his manager his temporary employment would continue despite the period of fixed term employment reaching its end date. However, I do not consider the advice from the manager rose any higher than that there may be an opportunity at some point in the future for Mr Gardner to continue in his role. 23In my opinion, the respondent has rebutted the presumption that Mr Gardner was dismissed because he was not fit for employment as a result of the injury received. That is to say, I am satisfied that Mr Gardner's injury was not a substantial and operative cause of his employment being terminated. 24It seems to me that if the respondent wished to terminate Mr Gardner's employment because of his injury, it would not have provided an extension to his temporary employment contract, which was to end on 29 January 2013. Instead, the respondent provided a further four weeks employment, making it clear, however, that there would be no further extension. It appears to be the case that the extension was implemented because a final decision to accept or decline Mr Gardner's workers compensation claim had not been made, but no further extension was possible because the employment freeze/restructuring meant no ongoing employment would be available for Mr Gardner after 24 February 2013. 25In my opinion, the respondent succeeds on two bases. First, any opportunity for Mr Gardner to continue in employment with the Department after 24 February 2013 had evaporated as a consequence of the employment freeze/restructruring. The substantial and operative cause of the termination of Mr Gardner's temporary employment was not his injury, but rather the unavailability of any ongoing employment opportunity for him after 24 February 2013. 26Secondly, the jurisdiction under Pt 8 of the Workers Compensation Act is only enlivened if the worker is dismissed because he or she is not fit for employment as a result of the injury received. Where a fixed term contract comes to an end by effluxion of time it is not a dismissal. 27In Smith v Director-General of School Education [1993] NSWIRComm 134; (1993) 31 NSWLR 349 the Full Bench considered the meaning of a "dismissal" for the purposes of Pt 8 - Unfair Dismissals (ss 245 to 255) of Ch 3 of the Industrial Relations Act 1991 ("1991 Act"). These were the predecessor provisions to Pt 6 of Ch 2 of the IR Act, which deal with unfair dismissals. 28In Smith, the Full Bench relevantly found as follows at 365: We apprehend no real issue may be taken with the ordinary meaning of the word "dismissal" as so applied to s.245, and, indeed, it seems to us that it is in that defined sense of an employee being sent away from employment that unfair dismissal cases in industrial jurisprudence have been concerned. The terms of s.245 of the Industrial Relations Act would suggest no latent limitation in that respect. Therefore, we find no difficulty in accepting the ordinary meaning of "dismissal" suggested by Brereton J. in Ex parte Wurth as being "the termination of services by the employer without the employee's consent"; we would add that where an employee does not freely consent to the termination, understood in a broad sense, then the circumstances may still amount to a dismissal by the employer as a constructive dismissal.... 29As the Full Bench recently observed in Robinson v Commissioner of Police [2014] NSWIRComm 35 at [76]-[77]: The 1991 Act, in Pt 7 of Ch 3, contained the provisions relating to the protection of injured workers that now appear in Pt 8 of the WC Act. These provisions then made an appearance in Pt 7 of Ch 2 of the IR Act and remained in the IR Act until 2006. The IR Act was amended in 2006 to transfer the provisions of Pt 7 to the WC Act. The second reading speech in relation to the Industrial Relations Further Amendment Bill 2006 (Hansard, Legislative Assembly, 24 October 2006) seems to suggest that the reasons for the transfer was to avoid the potential effect of the Commonwealth Government's WorkChoices legislation overriding State law aimed at protecting injured workers. It has generally been accepted since Smith (if not before) that a dismissal is "the termination of services by the employer without the employee's consent". Having regard to its historical cognate relationship to unfair dismissal provisions in successive legislation, there is no basis to believe the term "dismissed" in s 241 of the WC Act is used in any different sense. 30An employer does not terminate an employee's employment, that is, "dismiss" the employee, when the employee's term of employment expires under a fixed term contract. Rather, the contract automatically terminates through effluxion of time. 31Thus, where the employee is engaged under a contract of employment for a specified period of time, which is the case here, the contract of employment will terminate not at the instigation of the employer, but rather on the agreed end date of the specified period or automatically by effluxion of time. Accordingly, there was no "dismissal" of Mr Gardner by the respondent for the purposes of s 241 of the Workers Compensation Act. 32It is an offence to dismiss an injured worker within six months of an injury being sustained at work if the reason for the dismissal is that the worker is not fit for employment as a result of the injury: s 248 of the Workers Compensation Act. However, there is no obligation to maintain the employment of a worker who has suffered an injury if the reason for the termination is other than that the worker is not fit for employment as a result of a workplace injury. I mention this because the applicant seemed to be of the view the respondent should have maintained his employment whilst he was absent on workers compensation, despite the fact his fixed term of employment had ended. 33I find that the applicant has failed to make out a case for a reinstatement order under s 243 of the Workers Compensation Act. Order 34The Commission makes the following order: (1)The application by Darren Gardner for reinstatement under s 242 of the Workers Compensation Act 1987 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: 02 October 2014