Lorelle Hillman v NSW Trains [2017] NSWIRComm 1056

Industrial Relations Commission New South Wales Medium Neutral Citation: Lorelle Hillman v NSW Trains [2017] NSWIRComm 1056 Hearing dates: 11, 12 October 2016 Date of orders: 29 August 2017 Decision date: 29 August 2017 Jurisdiction: Industrial Relations Commission Before: Stanton C Decision: 1 The Commission makes the following orders: (1) The respondent, NSW Trains, shall within 14 days from the date of this decision, reinstate the applicant as a part-time employee in a customer services or administrative role or in a general administrative station based role at the RC2 or otherwise agreed rate of pay. In the alternative, the respondent shall reinstate the applicant to a role at Central Station related to the work previously conducted by employees engaged to work on the "Hot Dog Stand" or as a repeater. (2) Upon reinstatement, the applicant shall comply with all directions concerning training related to her position; (3) The respondent shall pay to the applicant an amount equivalent to what she would have earned, but for being dismissed, between the date of her application and reinstatement at the rate of her ordinary rate of pay, less any amounts received as payment in respect of Workers Compensation (or derived from alternative employment). This amount shall be paid within 14 days from the date of this decision. (4) The period of employment of the applicant with the respondent shall be taken not to have been broken by the dismissal. The intervening period between the date of the applicant's application for reinstatement and reinstatement of the applicant shall be counted for all purposes as a period of employment. (5) Liberty to apply if there is any disagreement regarding the application of orders (3) and (4) hereof. Catchwords: REINSTATEMENT OF INJURED WORKER – rail worker - applicant terminated on basis that she was unsuitable for the inherent physical requirements of her former role - medical assessment found her fit - reinstatement and lost remuneration orders made Legislation Cited: Workers Compensation Act 1987 Rail Safety National Law 2012 Cases Cited: ACI Operations Pty Ltd v Field [2011] NSWIRComm 5 ASIC v Hellicar [2012] HCA 17 247 CLR 345 Bindaree Beef v Riley [2013] NSWCA 305 Cansino v South Western Sydney Area Health Service (1999) 130 IR 1 Chau v Visy Board Pty Ltd [2012] NSWIRComm 101 IGA Distribution Pty Ltd v Moses (No 2) [2002] NSWIRComm 96 Jones v Dunkel (1959) 101 CLR 298 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm 108 State Rail Authority of New South Wales v The Honourable Justice Bauer and Others (1994) 55 IR 263 Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Ltd (No 3) [2010] NSWIRComm 60 West v Government Insurance Office (NSW) [1981] HCA 38 (1981) 148 CLR 62 Texts Cited: NSW Hansard (Legislative Assembly) NSW Trains Enterprise Agreement 2014 Category: Principal judgment Parties: Lorelle Hillman – Applicant NSW Trains – Respondent Representation: Mr A Britt of Counsel (Applicant)