Industrial Relations Commission New South Wales Medium Neutral Citation: Grafton and Waverley Council [2016] NSWIRComm 1029 Hearing dates: 1 July 2016 Decision date: 06 July 2016 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: Claim dismissed Catchwords: Application for reinstatement of injured worker-conciliation unsuccessful-referred for arbitration-Notice of Motion-allegation that applicant was not dismissed within the meaning of ss 241(1) of the Workers' Compensation Act 1997-alternatively, applicant has not applied for reinstatement or re-employment as required by ss 241(1) and/or 242 (1) of that Act-Applicant was unable to prove that dismissal had occurred-Even if dismissal had occurred, Applicant had not sought reinstatement or re-employment-the requirements to satisfy the sections of the Act have not been met-no jurisdiction exists to hear the claim-dismissed. Legislation Cited: Workers' Compensation Act 1997 Cases Cited: Glen Robinson v Commissioner of Police, NSW Police Force [2013] NSWIRComm 1027; Robinson v Commissioner of Police [2014] NSWIRComm 35; Mr Geoff Barkla v G4S Custodial Services Pty Ltd [2011] FWAFN 3769; M Lagudi v Club Marconi of Bossley Park Social Recreation and Sporting Centre Limited U2006/3876; Unuafe v Commissioner of Police [2015] NSWIRComm 1007; Sargent v ASL Developments Limited 131 CLR 634; Field v The Returned & Services League (Mount Gambier Sub-Branch & Memorial Club) Inc t/a Mount Gambier Community RSL [2011] FWA 5930. Category: Procedural and other rulings Parties: Phillip Shane Grafton (Applicant) Waverley Council (Respondent) Representation: Mr P S Grafton (self-represented) Mr S Jauncey, Henry David York Lawyers (Respondent) File Number(s): 2016/00121484 DECISION Background 1. Mr Phillip Shane Grafton, on 20 April 2016, filed an application seeking a reinstatement order against Waverley Council for reinstatement of injured worker pursuant to section 242 of the Workers' Compensation Act 1987. 2. Conciliation proceedings before Newall C on 2 May 2016 failed to resolve the claim. Standard directions were issued and the matter was set down for hearing before the Commission as currently constituted on 6-8 July 2016 inclusive. 3. Waverley Council filed a Notice of Motion on 21 June 2016 seeking that the application for reinstatement be struck out for want of jurisdiction. The Notice of Motion was heard on 1 July 2016. The Applicant in the interlocutory proceedings relied on an affidavit filed by Ms Christine Schlesinger, Manager-Risk and Safety, with Waverley Council. Her statement was admitted without objection and she was not cross-examined on it. Mr Grafton, the Respondent in these proceedings relied on such parts of his statement filed in the substantive matter as were relevant to these proceedings. Grounds and Reasons 1. The Notice of Motion relied on the following grounds and reasons: 1. The Industrial Relations Commission has no jurisdiction to hear and determine the applicant's application as the applicant has not been dismissed from his employment within the meaning of subsection 241(1) of the Workers' Compensation Act 1987; 2. In the alternative, the Industrial Relations Commission has no jurisdiction to hear and determine the application as the applicant has not, since the date of any dismissal, applied to the respondent for reinstatement (or re-employment) as is required by subsection(s) 241(1) and/or 242 (1) of the Workers' Compensation Act 1987. The Evidence 1. Mr Grafton was employed by Waverley Council from about 15 November 2010 until about 26 April 2011 and again from about 3 November 2011 until about 15 April 2012 as a casual Summer Crew Cleaner in Parks and Gardens Operations. 2. Mr Grafton was employed on a full-time on-going basis in the position of Team Member, Bondi Junction Team, Public Place Cleaning from about 16 April 2012. 3. Mr Grafton's rostered hours were from 7 am to 4 pm on Mondays to Fridays over a 9-day fortnight with every other Friday taken as a Rostered Day Off unless he was required to perform overtime. He was commonly rostered to perform overtime work on every third weekend. 4. Mr Grafton incurred a work-related injury on 30 April 2014 (torn ligament to his wrist) and was certified unfit for work from that day to 30 May 2014. Council did not receive a hazard notification regarding a pothole in Bondi Junction prior to Mr Grafton sustaining an injury. 5. At an injury management meeting held on 19 May 2014, senior management became aware that Mr Grafton also performed work undertaking night fill at the Marrickville Metro store operated by Woolworths. His hours of work at the Woolworths store were 5 pm to 1.30 am on 4 nights (Fridays to Tuesdays) and 5 pm to 11.30 pm or midnight on Tuesday night). It was not denied that lower level management may have been advised of that secondary employment, however, it was contended that senior management were not aware of it and neither was Ms Schlesinger. Mr Grafton did not complete Council's application for approval of secondary employment. The Council's insurance (State Cover) company paid Mr Grafton's full-time wages for his employment at Woolworths whilst he was absent from work due to the work-related injury sustained when working at Waverley Council. 1. A return to work plan was developed for the period 3 June 2014 to 30 June 2014 as a result of Mr Grafton being certified as having capacity for some type of employment from 30 May 2014. 2. On 3 June 2014, Council's General Manager, Athanasias Kyron, wrote to Mr Grafton seeking that he submit a secondary employment application form by 13 June 2014 to allow Council, as per clause 5.20, Code of Conduct, to manage and monitor his health and safety at work in view of the fact that he was working a total of 78 hours per week and was not having sufficient break of 10 hours between shifts. Mr Grafton was cautioned that failure to submit the form may result in disciplinary action pursuant to Clause 32 of the Local Government (State) Award 2010. Mr Grafton did not comply with that request. 3. Mr Grafton was certified as unfit for any work from 12 June to 30 June 2014. He also did not perform work for Council throughout July 2014 as a result of having limited work capacity and being subject to a number of restrictions which made a return to work difficult to manage. 4. Mr Kyron wrote to Mr Grafton again on 28 July 2014 advising that Waverley Council would have denied such an application if it had been submitted and provided an explanation for such rejection: The WHS Acts, Regulations and Codes of Practice require employers to, so far as is reasonably practicable, provide employees with safe systems of work. The number of hours that an employee is required to work and the scheduling of those hours of work form part of the system of work for that employee. While the hours you work for us are reasonable when you add the secondary employment hours the total hours worked is excessive. Working hours must therefore, so far as is reasonably practicable, be designed and managed in such a way so as to minimise the impact of working hours on the health safety and welfare of employees. Similarly, the WHS Acts, Regulations and Codes of Practice require employees to take reasonable care to protect not only their own health and safety but the health and safety of others at work. For the purpose of working hours this means that employees must comply with the arrangements that have been put in place by their employers to minimise any risks associated with working hours. Further, the Local Government (State) Award 2014 Clause 18 A (viii) states: "Ordinary hours of work shall not exceed twelve (12) hours in any one-day exclusive of unpaid meal breaks. Your current working arrangement at Woolworths when combined with your hours of work at Waverley Council does not meet the requirements under the Local Government State) Award 2014, the WHS Act and Regulations. 1. Mr Grafton commenced a gradual return to work from 1 August 2014 under a series of Plans that had him performing initially 4 hours per day x 4 days per fortnight and increasing to 8 hours per day x 4 days per week up to 12 September 2014. He resumed normal hours with Council from 15 September 2014 albeit on somewhat restricted duties. During the period 1 August until 15 September 2014, Mr Grafton was not working at Woolworths and therefore secondary employment hours were not an issue. 2. Mr Grafton, in an email dated 24 September 2014, advised his Senior Case Manager, StateCover Mutual Limited, that he had recommenced on light duties with Woolworths performing his pre-injury hours on 4 days per week (Fridays-Tuesdays) in order that his earnings may be sorted out by the Insurer. The exchange of emails was received by Ms Schlesinger on 25 September 2014. She felt obliged to explore potential fatigue issues to ensure that his health and safety were not at risk as a result of the substantial number of hours he was working. 3. Mr Grafton was forwarded correspondence from Ms Kristina Forsberg, HR Partner, on 2 October 2014 inviting him to attend a meeting on 8 October 2014 in relation to his working hours. 4. Correspondence dated 8 October 2014 was forwarded to Mr Grafton by Mr John Hutcheson, Executive Manager, Clean and Attractive Waverley, summarising the discussion that had taken place with the Applicant in the presence of his wife, Karryn Grafton, and Ms Forsberg. Mr Hutcheson confirmed that it was not a disciplinary meeting. He also confirmed that Mr Grafton had attended the meeting to listen only to what Council representatives had to say and refused to participate in any discussion on the issue. He further confirmed that Ms Forsberg told Mr Grafton that he had to elect with which employer he wanted to maintain full-time employment and the Council would assist him in providing time to consider the election by standing him down with pay for the week commencing 8 October – 15 October 2014. The correspondence repeated Council's obligations as set out in the 28 July correspondence adding: Council's duty of care is not removed by an employee's preference for certain shift patterns, their willingness to work extra hours or to come to work when fatigued. In such circumstances Council has a duty to adopt risk management strategies to manage the risks of fatigue… In a typical two weekly cycle this work pattern displays the following outline: 152 working hours, excluding lunch breaks and other breaks 14 working days with no days off from work; Five nights with a four hours sleep pattern; 16 hours working day for five days. Council has identified reasonable foreseeable factors which can substantially increase the risk of fatigue in your current work pattern…. On Wednesday, 15 October 2014 at 9.00 am you are required to attend a meeting at Waverley Council…. The topic to be discussed at the meeting is in relation to your decision regarding which employer, Woolworths or Waverley Council, you would like to maintain your full-time employment with. …. There must be a break of at least 10 hours between shifts regardless of where you have worked the shift preceding the next shift… The correspondence provided a detailed explanation of the causes and risks of fatigue. 1. Further correspondence was forwarded to Mr Grafton on 15 October 2015 by Mr Hutcheson confirming the discussion at the meeting earlier that day. It confirmed that Mr Grafton said he was satisfied with his current working arrangements; he refused to confirm or deny the Council's understanding of his working pattern with Woolworths; and he did not consent to Council writing to Woolworths to confirm his working pattern. Council therefore asked Mr Grafton to show cause, by 24 October 2014, why it should not make the following decision: 1. To reduce his hours of work from 38 hours per week to 15.2 hours per week, exclusive of meal breaks; 2. The 15.2 hours per week will be worked over two days, 7.6 hours per day on Thursday and Friday; 3. Although the position hours are not redundant, Council will pay the equivalent redundancy entitlement in accordance with the Local Government (State) Award 2014 Clause 39. This includes four weeks' notice period and 13 weeks redundancy payment. The calculation will be based on 22.8 hours per week. 1. Mr Grafton rejected the proposal to reduce his working hours in correspondence dated 24 October 2014. He denied that there was a conflict of interest involved. 2. Ms Schlesinger, in consultation with Ms Forsberg, formed the view that it was not appropriate to have Mr Grafton perform work in excess of the Thursday and Friday hours offered until further information was available as to his shift patterns with Woolworths. Mr Grafton was forwarded correspondence dated 27 October 2014 by Mr Mark Wood, then Director-Waverley Renewal in which it was pointed out that the issue was not conflict of interest. Rather, it was the existence of a significant work health and safety risk and the duty of care owed by Council to minimise the risk. He was advised that he would remain on stand down with pay until 5 November then commence part-time employment on 6 November 2014 working 15.2 hours per week over two 7.6 hour days (Thursdays and Fridays). He was also to be paid redundancy pay as outlined above. He was advised that the decision to reduce his hours would be reviewed if he were to provide information of a work pattern with Woolworths that was different to that available to Council. 3. On 6 November 2014, Mr Grafton forwarded an email to StateCover advising that his last shift at Woolworths was 4 November. He was advised, whilst at the store on 5 November 2014 that he would not be allowed to return to work until he was declared fully fit to resume full duties. Ms Schlesinger, in consultation with Ms Forsberg considered that there was no reason why Mr Grafton cannot be returned to full-time hours providing confirmation of the advice was received from Woolworths. Ms Forsberg emailed Mr Grafton on 10 November 2014 advising that as soon as formal confirmation was received from Woolworths as to the above, his full-time hours would be rostered. He was put on notice, however, that if he returned to work as per the previous schedule with Woolworths in the future, then "the safety measures as discussed and detailed in the letters dated 8, 15 and 27 October 2014" would be put in place. That advice was confirmed in a letter to Mr Grafton from Mr Wood dated 11 November 2014 and in an email from StateCover dated 25 November 2014. 4. In the absence of any response from Mr Grafton, a further email was forwarded by StateCover dated 26 November 2014 pointing out that his entitlement to workers' compensation benefits were unable to be calculated in the absence of the information sought. 5. Mr Grafton confirmed that he ceased working for Woolworths on 5 November 2014 and recommenced on 4 April 2015. 6. On or about 4 December 2014, Mr Grafton sought annual leave for the period 11 and 12 December and 18 and 19 December 2014. The former was approved. 7. On or about 18 December 2014, Mr Grafton submitted, and was approved, annual leave on 15 January 2015. 8. As Mr Grafton had not complied by 21 January 2015, Ms Schlesinger formed the view that it was quite likely that he was continuing to perform work for Woolworths given his reluctance and failure to provide evidence to the contrary. Mr Grafton was asked to attend a meeting on 22 January 2015. Later that day, Ms Schlesigner wrote to him confirming that although he had attended Council with his wife at the stated time, he had declined to attend the meeting because adequate written notice had not been provided. He was informed that Council was no longer able to provide him with suitable duties due to operational requirements. He was advised not to attend for work until relevant specialist advice has been received from him declaring him fully fit and without risk for re-injury to undertake the inherent requirements of his role. That advice would be reviewed and confirmed by an independent medical expert arranged by Council. He was provided with notice of a meeting on 7 May 2015. 9. On 6 February 2015, Ms Forsberg wrote to the Applicant inviting him to a meeting on 12 February 2015 to commence the Council's resolution process in relation to a grievance he had lodged against it with the Department of Industrial Relations. In attendance at that meeting and subsequent meetings on 24 February and 19 March 2015 were Mr & Mrs Grafton, Ms Patricia Hatzigiannis (Manager – People, Culture and Learning) and Ms Forsberg. 10. On 7 May 2015 Ms Jackie Fletcher, Injury Management Specialist, wrote to Mr Grafton in response to his query. Ms Fletcher clarified that the next step in the management of his injury was a functional assessment followed by an Independent Medical Examination. The functional assessment is to obtain a detailed report to assist doctors to determine restrictions or risks. Council was seeking expert advice from an Orthopaedic Surgeon specialising in hand and wrist surgery on his ability to return to his pre-injury duties safely and sustainably given the outcome of the functional assessment. 11. In an 8-page correspondence dated 11 May 2015, Ms Forsberg responded to grievances raised by Mr Grafton in the meetings on 12 and 24 February and 19 March 2015. Included in the correspondence was a confirmation that Mr Grafton was permitted to return to his full-time employment at Waverley Council if he provided evidence to substantiate that he was not currently employed at Woolworths. Once again, Mr Grafton refused permission to Council to contact Woolworths in that regard. Ms Forsberg set out the Award prescription regarding 10 consecutive hours off duty requirement. 12. On 29 June 2014, Council was served with a complaint filed by Mr Grafton with the Anti-Discrimination Board of NSW (ADB) on 18 June 2015 alleging direct discrimination in his employment at Waverley Council on the ground of "physical" disability in the period September 2014 until 18 June 2015. It was revealed in the complaint that the Woolworths job has been held continuously since about August 2007, three years before commencing employment with the Council. The detailed response provided to the ADB by the General Manager dated 23 July 2015 is noted. A conciliation conference was held on 1 September 2015 and a confidential settlement was arrived at as a result. 13. On 18 September 2015, Mr Jauncey wrote to Mr Grafton's then solicitor, Mr Chris McArdle of McArdle Legal, advising that Council had retained Medicins Legale to review potential fatigue issues arising from his employment with Woolworths and identifying whether revised proposed working arrangements with Woolworths might lessen or eliminate potential fatigue impacts. Mr Grafton was asked to provide a Job Description and the Task Analysis for his role with Woolworths. Mr Grafton confirmed that no response was ever provided to that correspondence and the requisite information was not provided. 14. Further correspondence dated 14 October 2015 was forwarded by Mr Jauncey to Mr McArdle seeking the information sought in the 18 September 2015 and subsequent telephone conversations with him. It was pointed out that the failure to respond was delaying consideration of whether potential return to work arrangements might be able to be accommodated by Council (either in full or in part). Mr Grafton confirmed once again that no response was ever provided to that correspondence and the requisite information was not provided. 15. Mr Grafton confirmed, during cross-examination that he not only did not provide the information sought, but he made no attempt to ask Woolworths to provide formal confirmation of his hours and shifts. 16. Mr Grafton also confirmed that he now works from 7 pm to 3 am on 4 days at Woolworths and 9 pm to 3 am on the fifth day (Tuesdays). 17. An extract from Council's payroll records demonstrate that Mr Grafton was paid wages throughout the period 3 November 2014 to 25 January 2015; he received an increase in his hourly rate as a result of an increase to award wages effective from 13 July 2015; and he has continued to accrue annual leave and long service leave since 22 January 2015 despite not performing work for Council since that time. 18. Mr Grafton agreed that he was not able to produce any correspondence or refer to any discussions that would confirm that he was ever advised that he was dismissed from employment. He also agreed that he has not been asked, at any time, to return any property which may have been issued to him in his capacity as an employee. 19. Ms Schlesinger pointed out that, even if he were to believe that he was dismissed, he has not made any attempt, nor have any attempts being made on his behalf, seeking that he be reinstated or re-engaged in the role of Team Member, Public Place Cleansing. 20. The Respondent relied on the following authorities in support of its Notice of Motion – Glen Robinson v Commissioner of Police, NSW Police Force [2013] NSWIRComm 1027; Robinson v Commissioner of Police [2014] NSWIRComm 35; Mr Geoff Barkla v G4S Custodial Services Pty Ltd [2011] FWAFN 3769; M Lagudi v Club Marconi of Bossley Park Social Recreation and Sporting Centre Limited U2006/3876; Unuafe v Commissioner of Police [2015] NSWIRComm 1007 and Sargent v ASL Developments Limited 131 CLR 634. Both parties relied on the decision in Field v The Returned & Services League (Mount Gambier Sub-Branch & Memorial Club) Inc t/a Mount Gambier Community RSL [2011] FWA 5930. Statutory and other requirements 1. The Local Government (State) Award 2014 relevantly provides the following: Clause 18 A Ordinary Hours (viii) Ordinary hours of work shall not exceed twelve (12) hours in any one-day exclusive of unpaid meal breaks. Clause 19A Overtime (v) An employee (other than a casual) who: (a) works four or more hours overtime after the completion of an ordinary shift and does not receive ten (10) consecutive hours off duty in the fourteen (14) hours immediately preceding the commencement of their next ordinary shift, or (b) works overtime after the completion of two consecutive ordinary shifts without receiving ten (10) consecutive hours off duty, shall be released after the completion of such overtime until they have had ten consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. 1. Waverley Council's Fitness for Duty Policy 2007 relevantly states: …. Waverley Council has made a commitment to providing a duty of care to its staff through the development of EEO Plans and OHS Systems. This ongoing commitment extends to employees whereby fitness for duty may be impinged through: Illness or injury Long term illness – leading to temporary or permanent incapacity Long term (non-work related) injury – leading to temporary or permanent incapacity Work related injury Physical factors – such as age, pregnancy or potential pregnancy Social factors - such as alcohol or drug use Psychological fatigue – related to excessive work demands Psychological factors that may impact on the ability of an employee (or others at work) to undertake their full responsibilities include: Non work related stress – issues from outside the workplace dominating work time and seriously impacting performance and safety. Work related stress – inability to cope with the demands of the position, impacting on decision making, performance and safety. Heavy workloads – employee health being placed at risk due to excessive workloads. Psychological Fatigue – working long hours, "out of daylight hours", or irregular shifts leading to excessive tiredness or fatigue and thereby placing the employee's health and others at risk…" 1. The Council's Public Place Cleaning Enterprise Agreement 2009 relevantly provides: Clause 10.1 (a) Ordinary Hours of Work Except as otherwise provided in an offer of employment, employees are required to work an average of 76 hours per fortnight…. Consideration 1. Part 8 of the Workers' Compensation Act 1987 relevantly provides: Part 8 Protection of injured workers from dismissal 240 …. 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. (2) …. (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. 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. 1. Mr Grafton was made aware, from opening submissions made by Mr Jauncey, and from lengthy explanations made during private conference that he was required to address three jurisdictional pre-requisites: 43.1 He was required to demonstrate that he was dismissed from employment (s 241 (1); 43.2 He was required to prove the existence of some form of communication to the employer which constitutes an application for reinstatement (s 241 (1); and 43.3 He was required to establish that he produced to the employer a medical certificate to the effect that he is fit for employment (s 241(3)). 1. The evidence indicates that, as at 19 May 2014, on the information available to the Council and not refuted in these proceedings, Mr Grafton would leave work at Woolworths at midnight or 1.30 am (depending on the day in question) and commence his day shift at the Council at 7 am – that is, a 5.3 hour break at the maximum, less the period required in travelling from Dulwich Hill to Waverley on push bike and train. He left the Council at 4 pm to arrive at Marrickville Woolworths to commence his shift at 5 pm. Mr Grafton counted his lunch and rest breaks as part of the requisite hours off work. 2. Mr Grafton explained that more recently his hours of work at Woolworths have been altered so that he commences at 7 pm and finishes at 3 am (except for Tuesdays which are 9 pm to 3 am) which would mean a 4 hour break (including travel time, meals, clothing changes and so on) before he commences at the Council at 7 am and a 3 hour break between work at the Council and commencement of his next shift at Woolworths. I agree that those hours are an even greater fatigue risk. 3. Mr Grafton is to be commended for his dedication and hard work. I do not doubt whatsoever that the impetus for the arduous schedule he has taken on is the support of his family and the fact that he is required to achieve a certain annual income in order to remain in Australia. He has provided the reasons behind that need. 4. Nevertheless, the Council has a statutory duty of care towards Mr Grafton and other employees and the hours he was working posed a significant work health and safety risk. 5. It was explained to Mr Grafton that if he agreed to attend a fatigue specialist, paid for by the Council, and it is determined that he is physically fit to sustain such a schedule, then approval would be given for secondary employment. Mr Grafton not only declined that offer but confirmed that he considered his employment with Council to be his "secondary" employment. 6. Having considered the evidence detailed above, I am not able to find any evidence of a dismissal of Mr Grafton. He has continued to be offered the option of returning to full-time employment with Council if he was to reduce his shifts with Woolworths to an acceptable level that would allow compliance with the Award - that has been declined. Council offered to reduce his hours to keep him in employment while complying with the Award and its occupational health and safety obligations – that is also not acceptable to Mr Grafton. He has continued to accrue annual and long service leave in the interim and has not been asked to return any property belonging to the Council. 7. Even if any of the actions of the Council were considered to be a dismissal of Mr Grafton, there was no evidence before the Commission of any request for reinstatement or re-employment. 8. The requirements of Part 8 of the Workers' Compensation Act 1987 have not been met by Mr Grafton. Decision 1. The Commission lacks jurisdiction to hear and determine the application brought by Mr Grafton pursuant to section 242 of the Workers' Compensation Act 1987. 2. The said application is hereby dismissed. I Tabbaa AM 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: 06 July 2016