New South Wales Nurses and Midwives Association (on behalf of Jennifer Cox) v Manchester Unity Australia Limited [2015] NSWIRComm 1003

Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Nurses and Midwives Association (on behalf of Jennifer Cox) v Manchester Unity Australia Limited [2015] NSWIRComm 1003 Hearing dates: 10, 11 12 November 2014; 19 December 2014, 27 January 2015, 5 February 2015 Decision date: 13 February 2015 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application dismissed Catchwords: Workers Compensation Act – worker dismissed - application for reinstatement – proper construction of the Workers Compensation Act – meaning of 'work of a kind' – necessity that a worker be fit – meaning of fitness – Commission to decide fitness on medical evidence before it – medical evidence not limited to that provided to employer – worker with medical restrictions preventing full performance of inherent requirements of the work not 'fit' for the work – worker cannot be reinstated if not fit – reinstatement discretionary even if worker fit - effect on other employees to be considered – effect on persons to whom employee provides service to be considered – application dismissed Legislation Cited: Workers Compensation Act 1987 ss.241, 242, 243(2), 243(3) Industrial Relations Act 1996 ss.91, 92, 93, 94 Cases Cited: Anderson v Northern Co-operative Meat Company Pty Ltd (Ncmc – Butchering Pty Ltd) [2008] NSWIRComm 247 Cansino v South Western Sydney Area Health Service (1999) 130 IR 1 Chau v Visy Board Pty Ltd [2012] NSWIRComm 101 Hofman v Penford Australia Limited [2008] NSWIRComm 1026 IGA Distribution Pty Ltd and Moses (No 2) (2002) 114 IR 307 Public Service Association and Professional Officers Association Amalgamated Union of NSW (on behalf of Peter Riley) v Workcover Authority of NSW [2006] NSWIRComm 108 Robinson v Commissioner of Police [2014] NSWIRComm 35 Terminals Pty Limited v NUW, NSW Branch (on behalf of Todd Bell) [2008] NSWIRComm 247 Tiney v Sydney West Area Health Service [2009] NSWIRComm 1045 Category: Principal judgment Parties: New South Wales Nurses and Midwives Association (on behalf of Jennifer Cox) – applicant Manchester Unity Australia Limited – respondent Representation: Counsel: Mr B Cross (Respondent) Advocate: Ms C Gill (Applicant) File Number(s): IRC 961 of 2013