Industrial Relations Commission New South Wales Medium Neutral Citation: NSW Nurses and Midwives Association (o/b Lenard) v Wesley Community Services Ltd [2016] NSWIRComm 1013 Hearing dates: 22 March 2016 Decision date: 15 April 2016 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Orders sought in Notice of Motion refused Catchwords: INJURED WORKER – application for reinstatement – whether dismissed for 'injury' – rebuttable presumption – test subjective, not objective – inquiry into reasons of decisionmaker – decisionmaker in fact relied in part on compensable injury – presumption not rebutted JURISDICTION – preliminary determination of jurisdictional questions – 'appropriate time' – circumstances not confined to questions of law alone, but can include questions of mixed fact and law STATUTORY CONSTRUCTION – interpretation of s.244(2) of Workers Compensation Act 1987 – plain words of statute to be considered WORDS AND PHRASES – 'substantial and operative cause' – phrase means no more than causative effect - does not carry meaning of 'predominant' or 'chief' – Construction, Forestry, Mining and Energy Union (New South Wales Branch) (on behalf of Daryl John Bates) v G. James Safety Glass Pty Ltd [2007] NSWIRComm 129 and Fox v The Spastic Centre [2010] NSWIRComm 1065 held to be wrongly decided Legislation Cited: Civil Procedure Act 1995 ss.56, 58 Workers Compensation Act 1987 ss. 240(2), 241, 242, 244(1), 244(2) Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Australian Co-operative Foods Limited v SW & JD Reilly & Sons Pty Limited [2010] NSWIRComm 110; 198 IR 195 Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305, (2013) NSWLR 350 Construction, Forestry, Mining and Energy Union (New South Wales Branch) (on behalf of Daryl John Bates) v G. James Safety Glass Pty Ltd [2007] NSWIRComm 129 Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division v Energy Australia (1999) 90 IR 311 Fox v The Spastic Centre [2010] NSWIRComm 1065 Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432 Nagle v Tilburg (1993) 51 IR 8 NSW Nurses and Midwives Association (o/b Cox) v Manchester Unity Australia Limited [2015] NSWIRComm 1003 Robinson v Commissioner of Police [2013] NSWIRComm 1027 Smith v State Transit Authority of New South Wales [2010] NSWIRComm 1062 Category: Principal judgment Parties: NSW Nurses and Midwives Association (o/b Lenard) (Applicant) Wesley Community Services Ltd (Respondent) Representation: Counsel: M Gibian (Applicant) I C Latham Respondent) File Number(s): 2016/00010623 Judgment 1. On 5 February 2015 Mrs Anne Lenard, the applicant in these proceedings, was dismissed from her employment with the respondent on the basis of, as the letter of termination expressed it, her inability to perform the inherent requirements of her job due to certain medical restrictions placed on her capacity to perform her duties. 2. On or about 17 July 2015 the applicant, through her Association, presented the respondent with a medical certificate asserting that she was from that date fit to resume her normal duties, and sought reinstatement pursuant to s.241 of the Workers Compensation Act 1987. ('the Act') 3. Reinstatement (or re-employment to another kind of work) was declined by the respondent. This permitted the applicant to make an application to the Commission for a reinstatement order: Act, s.242; Smith v State Transit Authority of New South Wales [2010] NSWIRComm 1062 at [32]; NSW Nurses and Midwives Association (o/b Cox) v Manchester Unity Australia Limited [2015] NSWIRComm 1003, and the applicant instituted proceedings before the Commission seeking an order of reinstatement pursuant to s. 242(1) of the Act. 4. On 17 December 2015 the respondent filed a Notice of Motion seeking that the proceedings be dismissed on the basis that the Commission had no jurisdiction to entertain them. That was put squarely on the basis that the applicant was not dismissed for reason that she was unfit for her employment 'as a result of the injury', as 'injury' is defined in s.240(2) of the Act, and therefore was not an 'injured worker' for the purposes of the Act. 5. This judgment is the determination of that motion. Proper approach to the determination of the motion 1. In a matter in which a jurisdictional question turns on a matter of law, there is no obstacle to addressing that question as a preliminary matter, if it is thought appropriate to do so. In my view, not least given the effect of ss.56-59 of the Civil Procedure Act 1995, ('the CP Act') it is almost universally appropriate to determine a jurisdictional question that turns on a point of law alone in advance of the substantive proceedings. 2. This is not, however, a matter in which the jurisdictional issue turns on a point of law alone; it turns rather on a question of mixed fact and law. Nevertheless there is an obvious preliminary issue. 3. The test is always, when an application for early determination of a jurisdictional issue is made, whether this is the correct time to determine the jurisdictional question, as the NSW Industrial Court held in Australian Co-operative Foods Limited v SW & JD Reilly & Sons Pty Limited [2010] NSWIRComm 110; 198 IR 195. 4. The Full Bench held: 'As a matter of principle, the jurisdictional issue should have been determined as a preliminary issue where, to adopt the reasoning of Wright J in Virtue v NSW Department of Education (1999) 92 IR 428 at 447, the "circumstances will conveniently admit so". These circumstances must include proceedings where the "facts, either established by evidence or plainly agreed terms, enable the court to determine what the contract or arrangement is, or, at least, the parameters of the contract or arrangement'. (at [28]) 1. The Full Bench went on to hold that in circumstances where there is no relevant factual contest between the parties and jurisdiction is squarely raised, that is the 'appropriate time' to deal with jurisdiction. 2. Here, as I note above, there was a possible factual contest. In my view the appropriate time to hear, as a preliminary point, an argument about jurisdiction is not confined to circumstances where the argument can be addressed without evidence. 3. Here I was satisfied, without dissent from either counsel appearing, that it was possible to establish the relevant jurisdictional facts on the basis of evidence of relatively short compass. That being so this hearing was the 'appropriate time' to determine the jurisdictional question. If the decision determined the matter in one way, it dealt with the proceedings to finality. If it determined them another way, a significant issue in the proceedings had been factually resolved. 4. I note that the applicant called in aid earlier decisions of the Commission including Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division v Energy Australia (1999) 90 IR 311 and Nagle v Tilburg (1993) 51 IR 8. 5. In my view those earlier decisions must now be read in the light of the jurisprudence that has emerged in consideration of the provisions of the CP Act. The extreme degree of caution that the Commission in years past may have observed in addressing any application for preliminary determination of a matter cannot, in my view, be assumed always to be appropriate now in the context of the emerging jurisprudence in relation to the CP Act, and its overriding requirement that courts operate with swiftness and a minimum of cost. See (in other contexts, but referring to the overriding status of the CP Act in this regard) Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432. 6. The applicant also submitted that 'in an application to have proceedings summarily dismissed (without a hearing on the merits), it is necessary to take the applicant's case at its highest.' That is so in circumstances where an application is dealt with without evidence or on the basis of affidavit evidence alone, but that was not the situation here. Here, the applicant gave evidence and was cross-examined, and a representative of the respondent, a person who formed part of the decision-making process, gave evidence and was cross-examined. There is no obligation to 'take the applicant's evidence at its highest' in respect of evidence which was tested. Rather, that evidence falls to be assessed as any other evidence given and tested in cross-examination. Facts 1. The relevant facts may be reduced to a short compass. The applicant had a knee injury. It was a non-compensable injury. She also had a foot injury. That was a compensable injury. Certificates were supplied from 2012 up to 4 October 2014, but not on the face of it thereafter, which imposed some restrictions in relation to that compensable foot injury. 2. The applicant worked on suitable duties, that is, duties in conformity with her medical restrictions, while those restrictions due to the foot injury were in place. 3. The applicant's knee injury then suffered a recurrence. Despite a claim being made, liability was not accepted. The knee injury remained a non-compensable injury. 4. On 15 January 2015 the applicant provided the respondent with a medical certificate imposing certain restrictions on her ability to work. The certificate did not identify the injury which gave rise to those restrictions. As of that date there was no current medical certificate imposing restrictions specifically due to the foot injury. 5. On 20 January 2015 the respondent wrote to the applicant, a letter which the applicant on her evidence received the same day, asking her to show cause why her employment ought not be terminated due to her inability to perform the inherent requirements of the job on the basis of the restrictions contained in the 15 January certificate. 6. Having received that letter, the applicant obtained and submitted on 21 January 2015 a WorkCover certificate completed by her treating doctor which clearly identified the injury with which it was concerned as 'left knee injury'. The certificate imposed specific restrictions on lifting, standing and bending which were identical to the restrictions imposed by the 15 January certificate, 7. The applicant wrote to the respondent on 23 January 2015 in response to the 'show cause' letter saying ''I am now unfit for pre-injury duties regarding my left knee…' 8. The respondent dismissed the applicant. The letter of termination squarely advances as the basis for the decision to terminate the limitations prescribed in the two medical certificates of 15 January and 21 January 2015. As I note above, the former did not specify the injury which gave rise to the limitations it prescribed, while the latter expressly identified the limitations it imposed, which were the same as those in the 15 January certificate, as being due to the knee injury, not an 'injury' within the meaning of the Act. The statutory scheme – the rebuttable presumption 1. Section 244 of the Act imposes a rebuttable presumption going to the reason for the termination, in circumstances where an employee alleges they have been dismissed because they are not fit for employment as a result of the injury received for the purposes of s. 241(1) of the Act. It is convenient to set s.244 out here. 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. 'Substantial and operative' 1. It will be seen that in the context of addressing the rebuttable presumption, the prohibited reason must be a 'substantial and operative' cause of the dismissal of the worker. 2. It was submitted by the respondent that the meaning of 'substantial and operative' is that if the injury were a factor in the dismissal, it must be the factor which 'attracts the most weight', or 'is the chief motivation'. The decisions of single members of the Commission in Construction, Forestry, Mining and Energy Union (New South Wales Branch) (on behalf of Daryl John Bates) v G. James Safety Glass Pty Ltd [2007] NSWIRComm 129 and Fox v The Spastic Centre [2010] NSWIRComm 1065 were understandably called in aid of that proposition. However, so far as those decisions suggest that the reason must be the 'chief' or dominant element of the decision to dismiss, they are, with respect, wrong. 3. The correct formulation will be obtained by following the actual words of s.244(2), and there is no warrant to gloss or elevate those words: Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; 250 CLR 523; 87 ALJR 588; 297 ALR 190. They mean no more than that the employer was actuated by that factual circumstance: General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 616 per Mason J. Determining the question under s.244 taken to determine the question under s.241 1. All parties appeared to proceed on the basis that the determination of the rebuttable presumption question in s.244 would decide the matter. That is not strictly so. 2. The presumption in s.244 is only one means, a short-cut means, of answering the root question in the threshold provision, s.241, that question being, 'did the employer dismiss the worker because he or she was not fit for employment as a result of the injury received?' If the presumption set out in s.244 is rebutted, that only disposes of a presumptive way in which the question in s.241 might be decided. Disposing of the presumption still leaves the question asked by s.241 to be decided on the evidence. 3. However, in Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305, (2013) NSWLR 350, ('Bindaree Beef') the Court held that the difference in wording between the two sub-sections of s.244, which replicates the difference in wording between s.241 and 244, did not affect the test under s.244(2). (at [56] per Bathurst CJ) As the same words are used in s.241 as appear in s.244(1), that reasoning means that in effective terms the test in s.241 is answered by the determination of the rebuttable presumption. 4. The Court in Bindaree Beef also held (again at [56]) that if the presumption were not rebutted, the next question is that of the fitness for work of the worker under s.243. Again, strictly, if the presumption is rebutted, the next step is not immediately that but to answer the question posed in s.241. But again, it can be said that on the reasoning in Bindaree Beef, in a practical sense the question which s.241 asks must be answered in the same way as the question in s.244(2) is answered. 5. I observe in passing that it is accepted that it is not necessary to show that the employer identified the 'injury' of itself as a cause of the dismissal separately from the unfitness arising from the injury: Bindaree Beef at [64]. Application of the law to the facts 1. It is established that in the case of an application to the Commission for reinstatement, it is presumed the applicant was dismissed because he or she was not fit for employment as a result of the injury received unless the employer demonstrates the injury was not a 'substantial and operative' cause of the dismissal. It follows that the inquiry is directed to the reasons of the decision-maker: Bindaree Beef at [54], [71]. The test is subjective, not objective: Bindaree Beef at [63]. 2. Counsel for the respondent put it this way: 'The search in relation to the rebuttal presumption is not a search for a retrospective process of reasoning whereby it might be shown that another injury may have been known about and it is not a search for retrospectively to find a matter that may logically have been adverted to by the decision maker. It is a search for what was the reason in the decision maker's mind for the decision that they took.' I think that submission fairly summarises the authorities, and I think it is correct. 1. A representative of the decisionmaker gave evidence, a Mrs Beverley, who held the position of Executive Manager, Residential Care with the respondent. I well appreciate that the delegate who actually gave effect to the decision to dismiss the applicant was not the person who gave evidence. An argument that the presumption in s.244(2) could not be rebutted because the actual decisionmaker did not give evidence was indeed advanced, but I am satisfied, given the position in the chain of recommendation that led to the dismissal that Mrs Beverley held, that the mind of the respondent in the matter was disclosed by her evidence. 2. Counsel for the respondent further submitted that the effect of the decision in Bindaree Beef can be distilled in this way. If, as counsel put it, (i) the decision maker gives evidence as to the reason why the applicant was dismissed; (ii) that reason does not include a compensable injury; (iii) the decision maker is believed; then the employer will rebut the presumption in the reverse onus and will succeed in the case. 1. That formulation, which can properly be gleaned from the authorities, is attractively simple. As in all formulations of the law, the attraction of simplicity almost always ultimately proves Medusa-like, and should be met with Persean caution. The formulation does not, for example, address the situation where there are two injuries, as here, and by genuine mistake reliance is unknowingly placed on the effects of a compensable injury, so that a genuine belief is incorrectly held about what was actually relied upon. But in this case the formulation advanced by the respondent suffices to address the question. 2. As I note above, a representative of the decisionmaker, a Mrs Beverley, gave evidence. I accepted her as a witness who could speak of the mind of the respondent in this matter. 3. She was cross-examined about the reasons for the termination of the applicant. I set out the critical passage in full: Q. The respondent then received the certificate of 15 January, correct? A. Yes. Q. And I took you to it, but turn it up if you need to again, it's page 8 in the bundle. It refers to three restrictions, you see that? A. Yes. Q. They're the same restrictions that were present in the final workers' compensation certificate issued in relation to the foot injury, correct? A. Yes. Q. And having received this document, you did not understand that to relate to the knee injury in circumstances where the insurer had informed the respondent that it had resolved, correct? A. The certificate was non-specific, so-- Q. I'm sorry, which certificate? A. The certificate dated the 15th. Q. Sorry was more specific than what? A. Non-specific. Didn't specify-- Q. Indeed. But what you knew at that point in time or what you'd been advised by the workers' compensation insurer was that the knee had resolved, correct? A. Yes. Q. So if you receive - and what's more you knew that these restrictions contained in the medical certificate were the same as those that had been present from the foot injury for some two years, correct? A. Yes. Q. And in those circumstances, you would have concluded that these related to the foot and not the knee injury, correct? A. Yes. 1. As to part (i) of the formulation proposed by the respondent, Mrs Beverley gave evidence about the reason that the applicant was dismissed. The applicant was dismissed because of the restrictions in the 15 January and 21 January certificates. The reasons included, moving to part (ii) of the formulation, the restrictions imposed by a certificate, the 15 January certificate, which Mrs Beverley understood to relate to the foot injury and not the knee injury. No question of Mrs Beverley's credit, to address part (iii) of the formulation, arises. 2. That is, Mrs Beverley's evidence establishes that the respondent understood at the time that the restrictions in the 15 January certificate, which restrictions formed part of its reasons to dismiss the applicant, related to the foot injury, a compensable injury. This is not a retrospective re-determination of the question on an objective basis, which is wholly impermissible. It is simply a statement of what the respondent in fact relied upon at the time of the termination. Reliance was placed in part on the effects of a compensable injury. 3. I observe that Mrs Beverley gave some answers in re-examination to the effect that the certificate of 21 January alone was relied on to terminate the applicant, but it is abundantly clear from the letter of termination that both the 15 January and 21 January certificates were relied upon as a cause for the dismissal. 4. The effect of all that is that the respondent has not rebutted the statutory presumption in s.244(2). It necessarily follows, adopting the approach taken in Bindaree Beef, that the respondent's motion must fail. The orders sought in the motion are refused. 5. I emphasise that this does not mean that the question which ultimately arises in an application of this sort, that is whether the applicant is fit within the meaning of the Act, has been answered; it has not even been addressed, and if the application is pressed, it will not necessarily be answered with a medical certificate dealing only with fitness in the immediate moment: see Robinson v Commissioner of Police [2013] NSWIRComm 1027. Order The Orders sought in the respondent's Notice of Motion are refused. The matter will be relisted for programming. PETER NEWALL 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: 15 April 2016