Schobbe v ANZ Banking Group Limited [2017] NSWIRComm 1005

Industrial Relations Commission New South Wales Medium Neutral Citation: Schobbe v ANZ Banking Group Limited [2017] NSWIRComm 1005 Hearing dates: 19 & 20 December 2016 Date of orders: 15 February 2017 Decision date: 15 February 2017 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The application by Katherine Schobbe for a reinstatement order is dismissed Catchwords: APPLICATION FOR REINSTATEMENT OF DISMISSED INJURED WORKER – application opposed on basis that applicant was not dismissed because she was not fit for employment as a result of an injury arising out of or in the course of employment – applicant dismissed for failing to follow directions relating to the taking of sick leave and for failing to act with honesty and integrity – taking of excessive amounts of sick leave – counselling meetings – applicant claimed she felt bullied – Final Warning letter – applicant dismissed – workers compensation claim – consent orders in Workers Compensation Commission – application for reinstatement order dismissed Legislation Cited: Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Category: Principal judgment Parties: Katherine Schobbe (Applicant)

ANZ Banking Group Limited (Respondent) Representation: Counsel: Ms K Nomchong SC (Respondent)

Solicitors: Mr I Collins (Applicant) Ms R Sutton, Holman Webb Lawyers (Respondent) File Number(s): 2016/00221389

DECISION 1. The applicant, Katherine Schobbe, has made an application to this Commission pursuant to section 242 of the Workers Compensation Act 1987 ('WC Act') for an order reinstating her to the position of Personal Banker with the respondent, ANZ Banking Group Ltd. The respondent opposes the application. 2. The provisions of the WC Act which are relevant to this application are set out below: 4 Definition of "injury" "injury" : (a) means personal injury arising out of or in the course of employment, ………………. 240 Definitions (1) In this Part: ……………….. "reinstatement" includes re-employment. ……………….. (2) For the purposes of this Part, an "injured worker" is a worker who receives an injury for which the worker is entitled to receive compensation under this Act or the Workers' Compensation (Dust Diseases) Act 1942 . (3) For the purposes of this Part, a person is the "employer" of an injured worker only if the injury arose (either wholly or partly) out of or in the course of employment with that person. 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) The kind of employment for which the worker applies for reinstatement cannot be more advantageous to the worker than that in which the worker was engaged when he or she first became unfit for employment because of the injury. (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. (2) An industrial organisation of employees may make the application on behalf of the worker. (3) The Industrial Relations Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured worker was dismissed. 243 Order by Industrial Relations Commission for reinstatement (1) The Industrial Relations Commission may, on such an application, order the employer to reinstate the worker in accordance with the terms of the order. (2) The Industrial Relations Commission may order the worker to be reinstated 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), but only if the Commission is satisfied that the worker is fit for that kind of employment. (3) If the employer does not have employment of that kind available, the Industrial Relations Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being: (a) employment of a kind that is available but that is less advantageous to the worker, or (b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation). (4) If the Industrial Relations Commission orders the worker to be reinstated, it may order the employer to pay to the worker an amount stated in the order that does not exceed the remuneration the worker would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission. 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. 1. On 1 July 2016 the applicant's solicitor, Mr Ian Collins, gave 'formal notice' to the respondent under section 241 of the WC Act to reinstate the applicant to her position as Personal Banker (21 hours per week) at the Katoomba ANZ Bank. Enclosed with that correspondence was a WorkCover NSW certificate of capacity dated 30 June 2016 from Dr Max Gorbach which certified that the applicant was fit for pre-injury duties. 2. The reply from lawyers acting for the respondent dated 14 July 2016 contained the following: Our client is not prepared to reinstate your client. We note that your client was terminated from her employment on the basis of her conduct as outlined in the attached letter of termination dated 25 September 2016 and not on the basis that she was not fit for employment as a result of an injury received during the course of or arising out of her employment with our client as required by s 241(1) of the Workers Compensation Act, 1987 (the 1987 Act). Your client is therefore in our view not entitled to make a claim for or be reinstated under s 241 of the 1987 Act. I note that the date of the letter of termination was actually 25 September 2014, not 25 September 2016 as stated in this correspondence. 1. The letter of termination set out a sequence of events in relation to which it was alleged that the applicant had breached the respondent's Code of Conduct and Ethics by failing to call her line manager first thing in the morning to advise of her intention to take leave and by failing to provide reasoning as to why she was applying for leave on eight nominated dates in August/September 2014. In addition, it was alleged that the applicant had failed to act diligently in needing to be reminded by her line manager on 8 September 2014 to provide medical certificates covering her absences on the same eight nominated dates. 2. The letter of termination contained the following: As noted above, ANZ has made a decision to terminate your employment. The reason for this decision to terminate your employment was discussed with you in our meeting, and you had an opportunity to respond. ANZ has found that you have failed to follow all of the expectations that were set of you in the meeting of 18 March 2014, and the final written warning dated 1 April 2014. Further, ANZ has found that you failed to act with honesty and integrity in the meetings on 18 September 2014 and on 22 September 2014. It is considered that your behaviour constitutes unacceptable behaviour and is in breach of the Code of Conduct & Ethics and our Values. 1. Following the respondent's decision to refuse to reinstate the applicant, an application for a reinstatement order pursuant to section 242 of the WC Act was filed with the Commission. 2. The issues which emerged for determination in the proceedings were: 1. Whether or not the applicant was an "injured worker" as defined in the WC Act; and 2. Whether or not the applicant was dismissed by the respondent in 2014 because she was not fit for employment as a result of the "injury" received.