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) Mr A Woods, Solicitor (Respondent) File Number(s): 2016/00202052 Judgment Background 1. This matter concerns an application for reinstatement pursuant to s.241 of the Workers Compensation Act 1987 (the Act). 2. On or about 21 October 2014, Ms Lorelle Hillman, the applicant in these proceedings, was dismissed from her employment with the respondent, NSW Trains, on the grounds that she had been deemed medically unfit to perform the inherent requirements of her substantive position of part- time Passenger Service Supervisor (PSS) due to certain medical restrictions that limited her capacity to perform her duties. 3. The applicant injured her left hip during a train trip to Albury in March 2013. Provisional liability was accepted by the workers compensation insurer on 5 December 2013. Liability was accepted and 28 January 2014. On 14 May 2014, the respondent determined the applicant was "permanently unable to carry out demands" of the PSS position "with a good prognosis for a continued capacity to work". 4. The applicant subsequently applied for a number of positions consistent with her work-related injuries. Shortly after her dismissal, a final WorkCover certificate was issued stating that her hip injury had reached maximum improvement and she was fit for office duties. 5. On 31 May 2016, the applicant sent an email to the respondent seeking reinstatement to a part-time position in customer services, administration or in a station based administrative role. 6. On 30 June 2016, the applicant, through her solicitor, presented the respondent with a medical certificate dated 14 April 2016 stating that she was from that date medically fit to resume her employment "…with no issues re- she is capable of working part time hours as required" and sought reinstatement pursuant to s.241 of the Act. 7. The applicant states reinstatement (or re-employment to another kind of work) was declined by the respondent, thus permitting her to make an application to the Commission for a reinstatement order pursuant to s.242 (1) of the Act. 8. Shortly stated, there is no argument that the applicant is an injured worker pursuant to s 240, was dismissed by the respondent as defined by s 241(1) and has applied for her reinstatement with the respondent in accordance with s 242(1). 9. The question for determination is whether, on the evidence, the Commission is satisfied the applicant is fit for employment in a part-time customer service role, an alternative administrative role or, a general administrative role out of a station. It must follow the Commission is required to examine what duties can be performed as distinct to whether or not a role or position exists when determining whether the respondent has "employment of the kind" available for which the applicant is fit consistent with the medical evidence. 10. The respondent contends it duly considered her application under s 241 of the Act. However, it had been unable to offer her the roles that she had sought. It considered the applicant was required to provide medical evidence that she was medically fit to undertake the roles sought. 11. The email the applicant sent to Mr Rob Austin, Acting Business Leadership Partner, dated 31 May 2016 stated the following: I refer to my earlier emails. Notwithstanding my requests to return to work, I have not been provided with any employment. Therefore, in accordance with s.241 of the Workers Compensation (Act) 1987, I seek reinstatement to a part-time position either at a station either in a customer services role or administration or in a general administrative role out of station. I have attached a medical certificate in support of my application. I look forward to hearing from you within 14 days If I am not reinstated by then, I will have no option but to commence proceedings pursuant to s.242 of the Workers Compensation Act 1987. 1. In email correspondence dated 10 June 2016, Mr Austin responded to the applicant in the following terms: Unfortunately I am unable to provide you with the roles you have requested for thefollowing reasons: Your request under section 241 has already been granted. It is very clear in the first point. It states "The injured worker may apply to the ..." NSW Trainlink gave you every opportunity to apply for a part-time role in the Blue Mountains, at no time did we prevent you from applying nor disregard your application. The clause does not state "must". Unfortunately you were unable to meet the minimum requirements for that role. It is the opinion of NSW Trainlink that it provided you with a fair opportunity to apply for the role. The business would encourage you to apply for any other roles that you feel you are suitably qualified for. While you have provided medical evidence in previous emails, this evidence must be related to the role/roles that you have applied for and the medical examiner would need to base his decisions form (sic) the position descriptions and duty statement. NSW Trainlink would still require you to attend a pre-employment medical assessment. The email proceeded to set out the provision of s 241 of the Act for the applicant's benefit. 1. The applicant contends the medical evidence demonstrates that she is fit to perform duties within the respondent's operations. 2. It was the respondent's view that there was risk associated with a range of duties the applicant considered she was fit to undertake, particularly luggage and dealing with customers who may have mobility issues. There was also the question as to whether the respondent had a vacant position. 3. The respondent was also concerned that the salary of the clerical position being sought by the applicant was higher than her PSS position. The applicant had also failed some of the rigorous testing applied to candidates for positions during the "recruitment" process. Remedy sought 1. The applicant contends there is work available within NSW Trains and she is fit to perform that work. Accordingly, the applicant sought the following orders from the Commission: 1. The Commission should reinstate the applicant as a part-time employee in the customer services (Customer Services Attendant (CSA)) or administrative role or in a general administrative role out of the station; 2. In the alternative, the Commission should appoint the applicant to a position on the Hot Dog Stand or as a repeater; 3. The respondent should pay the applicant the date of application on 31 May 2016 until her reinstatement at the relevant rate enterprise agreement The Evidence Applicant 1. A substantial part of the applicant's written evidence dealt how she incurred her injury in March 2013 and the subsequent injury management procedures implemented by the respondent. 2. The applicant joined NSW Trains (formerly CountryLink and RailCorp) in 2009 in the role of Passenger Attendant (PA) following a lengthy career at a senior level in the computer industry serving positions in finance, accounts, logistics, international contact and call centre management, marketing and process improvement amongst others. 3. In February 2012, the applicant was successful in her application for a full-time PSS position. She was ranked 1 out of 6 for that position. The applicant became a part-time employee from 10 February 2013. 4. The PSS role was similar to the role of a train guard with the added responsibility of being the on-board supervisor of the train crew as well as the "face to face" representative with customers throughout the train service. 5. Both the PA and PSS roles required the applicant to work on intrastate trains servicing customers throughout NSW and ensuring their on-time running according to the safety standards and guidelines of the respondent. 6. Both roles required the applicant to work with a broad range of customers including the young, elderly or disabled persons, tourists together with persons where English was their second language. 7. Crews working on intrastate trains were required to assist passengers with their luggage, including assisting them to move their 20 kg limit booked luggage from the platform to the train and vice versa. 8. Later, in cross examination, the applicant explained her luggage duties included the carrying, lifting, storage and retrieval of bags often at or from hip or head height. 9. Both roles required the employee to walk through the train to service passengers. The PSS role included the requirement to walk through the train every 20 minutes to supervise the crew and ensure operational efficiency. On occasions, both the PA and PSS were required to climb from the train using a fixed ladder or the emergency evacuation ladder. 10. Given her PSS experience, the applicant contended that she was capable of performing "repeater" work. 11. The applicant had extensive experience in customer service. The PSS is the only point of face-to-face customer contact for customers arriving or departing unmanned regional stations such as Tarago, Bungendore, Bellata, Moree and Werris Creek. 12. The applicant stated that as a PSS, she was required to check passenger tickets, deal with ticketing issues including fare evasion, broadcast train running times and associated issues over the public address system or on a one-to-one basis enquiry basis and deal with groups and solo travellers. 13. It was the applicant's evidence that she was able to read and understand written information and respond to passenger enquiries effectively. 14. Drawing on her experience as a PSS, the applicant stated she was able to read and understand timetable amendments, give the train driver the "all clear" or "right of way" to proceed at each stop at the time for departure. Similarly, she contended that she had no issues with understanding or using Standard Train Notices (STN) as issued from time to time. She was also able to read train timetables. 15. On 2 December 2013, the respondent acknowledged the work restrictions imposed by the applicant's general practitioner and directed her to work on what is informally known as "The Hot Dog Stand" at Central Station. This particular work location was a purpose built desk where injured workers performed a customer service role fielding questions concerning trains, times, platforms, Station facilities, street directions and the like. 16. Staff assigned to the Hot Dog Stand exercised some CSA and PSS skills such as the requirements for strong communication, customer relations, ability to report potential slip, trip or other hazards, problem solving electronic failures, team work and specific and general complaints 17. On or around 22 July 2014, a Mr Purcell suggested that the applicant should consider redeployment to a CSA station position. There was a position available at Blaxland Station with the possibility of a subsequent transfer to the Blackheath Station. In the interim, the applicant continued to work on the Hot Dog Stand for 20 hours per week. 18. Shortly thereafter, the applicant travelled to Blaxland to meet the Station Manager and the CSA employee that she would replace if she was successful in her application for that position. The applicant was scheduled to attend a fitness for duty assessment concerning the Blue Mountains station positions in August 2014. That assessment was rescheduled to October following a personal injury incurred by the applicant. 19. The applicant was required to attend an independent medical examination with Dr Stephen Rimmer, Orthopaedic Surgeon, on 19 November 2014. The applicant's termination followed on 19 December 2014. 20. In March 2016, the applicant noticed a number of full and part-time CSA positions advertised in the Blue Mountains Gazette. With the assistance of her Union, the applicant was able to express her interest in these positions with the respondent's Mr Rob Austin. She subsequently sent him an email concerning her interest in being reinstated. 21. It was the applicant's evidence that she submitted an application for the Blue Mountains roles on about 20 March 2016. On or about 4 April 2016, Mr Austin replied to her by email and outlined the way forward in terms of obtaining a medical certificate and a report from her treating doctor to the effect that she was fit for that work. 22. On 6 April 2016, the applicant was contacted by a "recruiter" who advised she was required to undertake online testing for these positions. The applicant subsequently emailed Mr Austin to ascertain whether or not she was required to undertake the testing. Mr Austin advised the applicant he would check and get back to her the following day. That did not occur. 23. On 13 April 2016, Dr Paul Stephens determined that the applicant was medically fit to resume duties from that day "with no issues" and could work in a part-time capacity. 24. Ms Sheree Agius, Acting Business Leadership Partner, sent an email to the applicant on 13 April 2016 in the following terms: I have consulted with IR and can advise that you are required to attend an information and testing session at Mt Vic. Please note that employees requesting to be reinstated post medical termination are required to undertake all components of the merit selection process, in addition to medical clearances required. 1. On 14 April 2016, the applicant sought official documentation concerning the reinstatement of a former employee who had been terminated on medical advice. Ms Agius subsequently sent her the relevant policies. In the interim the applicant undertook the online testing at short notice on 14 April 2016. She was unsuccessful. 2. On 15 April 2016, the applicant wrote to Ms Agius seeking where the relevant reinstatement of injured workers policy required her to undertake the "merit process". Ms Agius later forwarded the relevant procedure and instructions relating to termination based on medical advice to the applicant. 3. The applicant sent the following reply to Ms Agius on 15 April 2016: Hi Sheree, Thank you for forwarding the above files to me. I have reviewed the files and, as per section 11 of 6.6 "Procedure: Termination on Advice", there is no mention of the 'merit process' as you replied in your email to me last week. You wrote: "Please note that employees requesting to be reinstated post medical termination are required to undertake all components of the merit selection process, in addition to medical clearances required". Kindly advise where this policy is documented and which Title in "17" of 6.6 "Procedure: Termination on Medical Advice" supports it. Rob Austin in his email of 4 April 2016 to me wrote: "I have spoken to Human Resources to confirm the way forward. The below seems to be the way forward for your application: Certificate from a medical practitioner clearing you for work. medical advice from the previous medical practitioner supporting your application for the role. a medical clearance from Health Solutions. The above advice from Rob is in line with Section 11 of the 6.6 "Procedure: Termination on Advice" document that you sent through. I will forward the certificate and the medical advice, as requested by Rob to you later this week. To complete the medical assessments, kindly advise when I am to be examined by Health Solutions. 1. The next significant correspondence was sent to the applicant by Ms Agius on 12 May 2016 in the following terms: Hi Lorelle, Any reinstatement would need to comply with the Policy, Procedure and the instructions. They are not in isolation of each other and are to be read together. The information that has already been provided to you, is that you are no longer an employee of NSW Trains and any request for reinstatement is subject the approval of the Director People and Change. The Director determined that a further selection process was required to determine your suitability to the role. You have been advised that you did not meet the benchmark for the merit selection for that see CSA role, therefore the Director has not approved your request. There is not (sic) further information to provide to you on this matter stop 1. The applicant failed to understand, absent any specific reference in the respondent's policies, why she was required to undertake a merit-based selection for the Blue Mountains positions. 2. The applicant stated that in the event Commission ordered her reinstatement, she would be prepared to work at the Hot Dog Stand or in a customer service role at Central Station. The applicant also considered she had the skills required to work on the Grand Concourse at Central Station assisting passengers in the event the Commission so ordered. 3. The applicant contends that she has extensive customer service experience as well as experience in operational roles. Moreover, there are CSA role locations that require little or no baggage handling. The use of a ramp to on-board and disembark passengers with mobility issues or problems would not be an issue at such locations as the volume of passengers travelling with mobility issues would be quite low. 4. The applicant also considers her extensive private sector experience in project management, finance, logistics and the like coupled with her computer skills and strong written and verbal communication skills would support her candidature for an office based role. 5. In cross-examination, the applicant confirmed that she was a seeking a position with little or no baggage handling where she was not required to repeatedly move luggage. She agreed that it the event she was required to lift a bag in the vicinity of 20 kg, such lifting could possibly cause her some injury. Similarly, she was seeking work at a location where there are few passengers embarking or disembarking the train with mobility issues. 6. The applicant confirmed that ideally she was seeking work at Central Station or appropriate role on the Western Line. She was aware that some stations on that line had wheelchair accessibility and others do not. It was "possible" that as a CSA assisting such passengers there may be a risk her health. 7. The applicant agreed that in assisting a passenger to carry a bag over about 8 kg onto the train may risk to her health. However, she stressed that it was repeated lifting several times over a shift, rather than intermittent lifting, that may aggravate her hip. It may also depend on the particular passenger and who else was around at the time to render additional assistance. 8. The applicant conceded that if she was required to assist a passenger with a heavy bag, depending on the weight, she might need to the enlist assistance from the guard in the case of a four car set or be the repeater guard in the case of an eight car set. In the event she encountered "soreness" in her hip, the applicant stated she may need to have a short rest. 9. It was the applicant's evidence that as a keen gardener, she was able to lift heavy bags of compost onto a trolley at home and move them around her garden from the boot of her car without any issues. 10. The applicant understood that a "repeater" also exercised the skills of a CSA. The applicant stated that she would be able to work as a repeater and would have no difficulty walking through the train whilst it is in motion. Moreover, she currently walks through trains while travelling on them without issue. 11. The applicant was aware that a CSA role was predominantly located on the station platform and in that regard she did not expect use of a mop to clean station toilets would present any difficulties to her. 12. The applicant conceded if the layout of a particular train station required her to walk on ballast, that situation could possibly cause aggravation to her hip. 13. The applicant was confident that she would be able to assist passengers with mobility issues and persons from non-English speaking backgrounds and where necessary work out timetable connection issues for these customers. 14. The applicant explained the Hot Dog Stand at Central Station was used to assist injured workers with their rehabilitation and return to work programs. 15. The applicant stated that she was seeking a CSA role where the frequency of repeated lifting was low. The applicant stated she was also seeking an administrative or clerical position and contended her computer, customer service, telephone and strong communication skills supported her candidature. That position in her view did not require "sitting all day". 16. In terms of working as a CSA, the applicant did not expect any health issues to arise if she was required to clean basins and toilets on trains. She also confirmed that she did not expect to encounter any issues when required to interpret timetable changes. 17. In re-examination, the applicant stated that she had prepared the minutes of meetings for NSW Trains on number of occasions and was capable of lifting weights of more than eight kilograms frequently. The following exchange ensued: Q. And do you find it easier to lift weights of more than 8 kilograms now? A. Yes I do. Q. Do you find that you can lift them more frequent now than you did back in December 2014? A. I wouldn't say frequently. Q. But more frequently? A. Yes, definitely, yes. 1. The applicant confirmed that she was able to lift 30 litre bags of compost and 25 to 30 litre bags of soil at hip height from the boot of her Toyota Echo vehicle to a trolley when gardening. She further explained that on occasions she had lifted 30 litre bags of cat litter from the boot of her vehicle. 2. The applicant confirmed that she was able to work at Central Station and on the Lapstone to Lithgow line as well as other lines towards the City. She was not keen to work south of Cronulla or at Cowan. 3. The applicant explained that on XPT trains, a PA or CSA accepts luggage from customers as they board where it is subsequently loaded into a three tier bay by the "luggage guy", with the heaviest luggage being put in the bottom bay. Only a small percentage of passengers required assistance with their luggage. 4. The applicant further explained that two luggage attendants would pass the bags to her from a trolley and she would subsequently place them in one of the three available bays, with the heaviest in the first bay and the lightest in the top or third bay. The applicant contended that on XPT or diesel train, she was able to call upon one PSS and one of three PA's to assist with luggage. Dr Lorraine Jones 1. A medical report prepared by Dr Jones for the applicant's solicitors on 1 August 2016 was admitted without objection. That report canvassed in detail the history concerning the applicant's injuries. 2. The applicant's solicitors provided the following documents to Dr Jones for her consideration: 1. Medical report of Dr David Daniel O'Keefe dated 13 March 2015. 2. MRI report from Dr James Linklater dated 11 December 2013. 3. Medical certificate from Dr Paul Stephens dated 13 April 2016. 4. Report of Dr Anthony Delaney, dated 19 April 2016. 5. Job descriptions and duty statements of a customer service attendant or clerical and administrative officer at NSW Trains. 6. Statement of Mrs Hillman. Against this backdrop Dr Jones determined: * the applicant is able to walk and stand normally; * If the applicant does not do heavy lifting repetitively, she does not get right groin pain. It is "brought on by activities and eased at rest"; * the applicant was able to manage her meet and greet position without any problems; * the applicant could stand for an hour and then sit down; and * the applicant found that the motion of the train brought on right hip pain. Heavy lifting of the luggage and the moving of the seats that this job involved brought on her symptoms. She is, however, able to manage clerical duties without any problems. 1. Dr Jones provided the following answers to specific questions put to her by the applicant's solicitors: 1. Nature and extent of injuries sustained by my client Right hip pain and groin pain have been shown to be gluteal tendinopathy and bursopathy. This has resolved since she ceased her work as a passenger service attendant. 1. The continuing disabilities and the effect of such injury Right hip pain was precipitated by the jolting of the train and by lifting heavy loads. This has now resolved. 1. Your opinion as to (whether) my client is fit for further employment in the roles of a customer service attendant or clerical and administration officer Your client is fit for employment as a customer service attendant or as a clerical administrative officer. 1. If my client is not fit for either of the above roles, what changes would be needed to those roles? She is not fit to return to work as a passenger service supervisor as a passenger service attendant. However, she is fit for customer service attendant or clerical administrative officer (roles). 1. In cross-examination, Dr Jones confirmed that in her opinion, "If she does not do heavy lifting, she does not get right groin pain". She considered heavy lifting to be left of more than 20 kg. 2. Dr Jones stated it was repeated handling of luggage rather than moving a single bag that could cause issues with the applicant's injury. In that regard, the requirement to move three or four bags over a four hour shift could prove problematic. 3. Dr Jones stated she travelled by train regularly and in her opinion, a lot of passengers manage their own luggage. The following exchange ensued: Q. But now having given some consideration to the potential for a luggage issue you would not think that she should take on that duty? A. Well, I think that's a very specious question. I think that – since the majority of people come with wheeling luggage it's a very rare person that needs help with luggage. I would think she'd be able to manage the small amount of luggage that is involved in the train. I catch trains regularly and I travel a lot and people on trains, I've always seen them manage their own luggage. 1. Dr Jones stated she was unaware that a CSA role would require the applicant to shift luggage. She considered the role dealt with a range of platform and cleaning duties and to trains. Should the applicant's CSA role involve shifting more than one or two bags, she would be unable to do it without risk of injury. 2. Dr Jones was aware the applicant's duties as a CSA located at the Hot Dog Stand largely involved giving instructions to passengers on the answering their questions. The notes stated that the applicant could stand for an hour without a break. 3. Dr Jones contended the applicant was capable of fulfilling a large number of CSA duties including: * utilising a ramp to assist customers with mobility issues get on and off the train; * assisting a passenger who requires assistance going up stairs at a station; and * pushing a wheelie bin around the station platform; 1. In re-examination, Dr Jones stated that she had read the various positions descriptions relevant to the applicant's reinstatement claim at the time she prepared her medical report. Respondent Mr Austin 1. Mr Austin is the Regional Service Delivery Manager, Central. Between January and June 2016, he also managed the Blue Mountains Region and at that time was responsible for the management and oversight of NSW Trains station employees at Central and stations from Lapstone to Lithgow. The respondent employs approximately 1910 permanent staff. 2. Mr Austin stated that since it commenced operations on 1 July 2013, the respondent had undertaken a continuous assessment of ongoing staffing requirements. This review has resulted in a number of non-train based positions becoming excess. Currently, almost 60 employees had been identified as excess to requirements including one clerical and administrative officer position and five customer attendants. He also stated that a number of additional employees would be transitioning into the redeployment pool shortly. 3. The NSW Trains Enterprise Agreement 2014 relevantly states the respondent has an obligation to consider suitable redeployed employees for position vacancies. Mr Austin expected the majority of excess employees would become redundant. 4. The recruitment policy lists a non-exhaustive range of selection methods the respondent may employ in assessing a person's suitability for a position, including job related testing, psychometric testing, attendance at assessment centres and examinations. 5. Mr Austin stated the requirement for a competency based assessment of candidates was determined following recommendations of the 2001 Special Commission of Inquiry into the 1999 Glenbrook Train Accident. 6. Section 117 of the Rail Safety National Law 2012 (NSW) requires respondent to ensure that any of its workers who may undertake "rail safety work" which includes CSA work, are competent to undertake such work. 7. Mr Austin stated that where the respondent has determined that an assessment examination was an appropriate method to assess competency for a particular role, so as to enable an applicant to progress through to the next stage of the recruitment process, candidates must meet the "required benchmark" for that position which they are being assessed. 8. An appropriate benchmark has been determined each position. A performance level at the 30th percentile is the minimum required benchmark for a candidate to progress through to the next stage of the selection process . 9. A candidate's results from any assessment are valid for a period of 12 months. Accordingly, should an employee fail to meet the required benchmark for a particular position, they are eligible to resit the test 12 months later. 10. Mr Austin canvassed the requirements of the PA and PSS positions. 11. In relation to CSA staffing arrangements, he stated that a number of stations including Medlow Bath and Zig Zag stations were unstaffed. Stations such as Lapstone, Springwood and Faulconbridge were operated by a single staff member on a single shift per day basis. Other stations including Glenbrook, Wentworth Falls and Leura have two CSA shifts per day with a limited shift crossover. 12. Staff arrangements at Blaxland, Lawson, Katoomba and Mount Victoria encompass two CSA shifts per day and a station or duty manager shift. Unlike Central and Lithgow stations where multiple CSA's are rostered for a single shift together with a station or duty manager the CSA's engaged at small stations are generally the sole point of contact with the general public. 13. Mr Austin identified the following physically demanding tasks commonly undertaken by a CSA: * attendance on platforms to conduct right-of-way services for passing and stopping trains; * assisting passengers with the loading and offloading of luggage where a particular passenger is unable to do so themselves due the size or weight of the luggage or because of an injury or disability; * the ongoing inspection and monitoring of platforms, stairs and station entrances for trip hazards; * maintenance including the cleaning of toilet blocks, offices and locker rooms pursuant to the relevant cleaning list applicable to a particular station; * attendance and inspection of vehicle and foot traffic level crossings on a daily basis. Some can be inspected on foot while others require a train trip to perform the inspection due to the considerable distance between the station office and the relevant level crossing. For example, at Blackheath Station where the applicant had expressed some interest in working as a CSA in June 2014, the CSA was expected to walk a return trip of some 385 metres in order to inspect the crossing's lights and boom gates; * the emptying of all platform bins at the completion of each shift into a wheelie bin for collection at a central garbage location; * maintenance and vegetation control which may include the attending and/or removal of weeds and the removal of any garbage present in garden areas; and * assisting passengers in wheelchairs entering and disembarking trains. 1. Mr Austin stated that CSA's engaged on the Blue Mountains line, the position the applicant applied for in April 2016, were trained in and were expected to exercise the duties of an on-train "repeater" on eight car services. The nature of repeater work requires a CSA to board and ride a number of trains each shift. 2. Mr Austin contended that the work of a CSA was physically demanding and often required a CSA to walk several kilometres each day boarding and riding a number of trains and undertaking movements requiring repeated heavy lifting. Moreover, CSA's were the first and at many stations, the sole point of contact to field customer issues and problems. 3. Candidates for CSA positions are required to be able to read and understand written information as well as successfully respond to customer enquiries. A key component of CSA testing involved the assessment of a candidate's ability to accurately interpret a service timetable so as to provide passengers with train information. 4. Mr Austin stated the work of a CSA also required interpretation of "special train notices" which are often lengthy documents advising staff of changes to the standard service timetable as a result of, for example, track work or additional services being operated due to large public events. A CSA is required to monitor the intranet to locate special train notices and respond quickly to any change in timetable. In 2015, the respondent operated an unamended timetable for only two days that year. 5. Mr Austin contended that a CSA's failure to diligently respond to special train notices may result in a failure, for example, to place signs at the station indicating bus service arrangements or attend the relevant train platform to conduct right-of-way services in accordance with the amended timetable resulting in significant delays to train services. 6. Mr Austin stated at the 14 April 2016 recruitment testing when he presented to candidates, including the applicant, information concerning the recruitment process and the fact that the job-related testing results would remain valid for a period of 12 months. 7. Based on the recruitment examination results, Mr Austin did not consider the applicant was capable of being employed as a CSA as she was not capable of competently performing the inherent requirements of the position, which required an employee have the ability to quickly and accurately interpret the service timetable for their own station and other stations customers where customers make destination enquiries. 8. Mr Austin referred to the following assessment results for the applicant which caused her application to be marked "does not meet benchmark": Reading comprehension-requires candidates to read passages of information and answer questions to indicate their ability to understand the content of information. The applicant met the benchmark with a score in the 30th to 69th percentile, rendering the result "average". Using information -requires candidates to review a service timetable and a network/route map and answer example passenger enquiries related to those documents. The applicant did not meet the benchmark having scored in the 17th to 29th percentile, rendering her result "below average". 1. Mr Austin referred to the interpretation section of the testing report which suggests that given the applicant's results in the "using information" section of the examination, she was likely to: 1. require more assistance than others when carrying out these tasks; 2. find demanding time constraints more difficult to manage; 3. make some errors; and 4. misinterpret information. 1. In relation to the applicant's claim for reinstatement to a clerical and administrative position, Mr Austin stated that the respondent employs approximate 20 persons in clerical and administrative officer positions. Given the terms of the enterprise agreement requires the respondent to first consider those employees, currently some 25 persons, in the redeployment pool and the fact that it is likely those 25 employees will be made redundant, it was Mr Austin's opinion that it is unlikely the respondent would be able to find a position for the applicant. 2. Mr Austin stated the following competencies were required for a clerical and administrative officer position: 1. problem-solving skills; 2. an ability to work in a team and communicate effectively with other team members, which may be assessed through a group teamwork exercise; 3. general planning and organising skills; 4. experience with computer program such as Microsoft Word, Excel, PowerPoint and Outlook; and 5. up-to-date experience with current technologies, for example, admin officers may be requested by the RSDM to whom they report to, to set up "group chats" for employees across multiple iPhones. 1. Mr Austin acknowledged that the applicant had raised the possibility of working remotely on office-based work from home. There was one employee currently working from home on a two day per week basis. However, admin officers who report directly to RSDMs are RC3 positions and the nature of those roles preclude these staff from working from home. He identified the following key duties of admin officers: 1. the fitting and ordering of uniforms for their teams; 2. being present to accept and receipt all deliveries; 3. attending meetings to assist with the preparation of minutes and recording of actions to be taken; and 4. being otherwise generally available for team members to speak to directly when there are requests of an administrative nature (for example, the preparation of documents on an urgent basis). 1. Mr Austin stated that the salary of a first year admin officer under the RC3 classification in September 2016 was $71,030 compared to a PSS position with annual base salary of $63,674. PSS staff work on a seven day 24 hour roster at locations throughout New South Wales whereas admin officers typically work from 9.00am to 5.00pm in a single location such as Central Station in Sydney. 2. In relation to the medical report of Dr Jones, Mr Austin considered it was correct that the applicant performed substantive duties at the Hot Dog Stand as part of her return to work plan in or around December 2013. However, it was inaccurate to suggest that this was or is either an associated element of the CSA position or a position its own right to which an employee can be personally assigned. 3. The Hot Dog Stand work was an inherent feature of the standby shift performed by PSS employees, position which Dr Jones's medical report indicates the applicant is not fit to perform. The Stand has since been removed and has been replaced by a new Customer Service Centre operated by a private contractor. 4. PSS staff were expected to be present on the floor of the Grand Concourse at Central Station during their standby shift and exercise the same customer focussed duties to the public as previously undertaken on the stand. Moreover, he did not believe the applicant's skill set would meet the competencies, skills and experience required of a project manager. 5. In cross-examination, Mr Austin stated that in preparing his evidence, he had concentrated on work opportunities available on the Blue Mountains line to the exclusion of other lines the respondent operates within the Sydney basin that could provide a reinstatement opportunity for the applicant. He was unaware the applicant was seeking reinstatement outside the area between Lapstone and the Blue Mountains. 6. Mr Austin stated he was unable to advise the Commission of any work opportunities other than those between Lapstone and the Blue Mountains. 7. Mr Austin recalled there was one vehicle level crossing between Lapstone and Lithgow at Blackheath Station. At best, the applicant would be required to walk on "maybe two" metres of ballast to inspect the vehicle crossing. Moreover, with the exception of Bell station where the applicant might be required to walk on four or five metres of ballast, she would not be required to walk on any ballast when inspecting pedestrian crossings between Lapstone and Lithgow. 8. The respondent employs CSAs at Central Station in the luggage room and at Lapstone on the Blue Mountains line. On the Hornsby and Epping lines, a CSA position exists at Cowan station. 9. Mr Austin agreed the CSA position description contains no requirement to carry luggage or load luggage onto a train. Rather, the position description concerning luggage and cloakroom services states: Provide a reliable, efficient and customer-focused luggage or cloakrooms service. Book passenger luggage, observing luggage regulations. Accept, receive, secure, safeguard and deliver cloakroom items. Comply with health policies and regulations relating to luggage, lost property and cloakroom services 1. A CSA was not expected to carry or pick up a bag that weighs more than 20 kg. Mr Austin stated he was aware the respondent had undertaken certain studies concerning the amount of luggage each passenger carried onto a diesel train. He understood that 17% of passengers across all lines required assistance getting on or off the train – but he was unable to quantify whether those passengers carried luggage and if they did, the weight of that luggage. 2. In relation to intercity trains, respondent had undertaken some studies concerning the luggage carried by passengers. However, he was unable to state how many bags each customer carried onto the train or, the average weight of those bags. He recalled that about 2% of customers required assistance which was rendered by a combination of CSAs and other employees. 3. Mr Austin acknowledged he had attached the duty sheet for the CSA position at Mt Victoria but not Lithgow, Katoomba or Faulconbridge or other stations on the Blue Mountains line to his statement. 4. Mr Britt referred Mr Austin to his email sent to the applicant dated 10 June 2016 where he said: Your request under section 241 has already been granted. Mr Austin agreed with the proposition that in terms of competencies, the respondent was treating the applicant's reinstatement application as if she had never worked for the organisation and was applying for a position "fresh off the street". 1. Mr Austin agreed that he really had no idea, other than the examination result, whether the applicant would require more assistance than others when carrying out the tasks required of a CSA or would find demanding time constraints more difficult to manage. Mr Austin further agreed that "everyone makes errors" and absent the examination result, he did not know whether the applicant would misinterpret information. 2. In short, Mr Austin agreed with the proposition that the applicant's actual work performance as a PA and PSS was a "better measure than a theoretical examination" and following his brief consideration of her personnel file, he saw nothing that demonstrated she required "more assistance" when carrying out the tasks required of those classifications. 3. Mr Austin agreed that as a PSS, the applicant was subject to time restraints and there was nothing in the personnel file that showed she had found time constraints demanding and difficult to manage. The following exchange ensued: Q. You based your decision, as you tell us, entirely, at paragraph 47, based on the results of her examination? A. That's correct. Q. And (sic) examination that you don't know whether measures the valid benchmarks for the position? A. So intimately, no, I don't know, that's correct. Q. And you don't know what result she did in fact score, because you didn't look at her exam paper? A. Didn't mark it, no. Q. you didn't look at it either, did you? A No, I asked for the result. Q. And you had no idea whether, if she had been reinstated, as she sought, and undertaken the training of some six weeks, she wouldn't have been anything other than a competent CSA? A. We don't know that. Q. We don't know it because you didn't give her the chance? A. That's correct. Q. And again, paragraph 48, based entirely upon the examination, you didn't believe that Ms Hillman was capable of competently performing the inherent requirements of a CSA position? A. That's correct. Q. Did you ever ask Mr Norman for a resume? A. It was part of her application. Q. Did you look at her resume? A. No. Q. So she provides you a resume and you don't even take time look at it? A. I have looked at it, yes. Whether I had looked at it, and I should probably be better in that, wether I looked at it this time, I couldn't tell you. Mr Austen subsequent agreed with the proposition that on paper the applicant "would seem" fairly well qualified. 1. Mr Austin confirmed that in or around June 2016, the respondent was still employing CSAs with approximately seven vacant positions to be filled. Mr Austin was unaware of any current vacancies. 2. Mr Austin was shown Exhibit 7, dated 10 October 2016, which set out three vacant positions available as at 23 September and 7 October 2016: 1. CSA part - time – Hunter Region (7 October); 2. CAA – Hunter Region (7 October); and 3. Customer Attendant qualified part – time (23 September). 1. It was Mr Austin's evidence that the fact that the respondent had five CSA employees surplus to its requirements did not preclude it from seeking to recruit CSAs at that time. He later qualified his response by stating that in April 2016, "whilst the positions were surplus, the individuals were not at that point in time". The normal practice was that such positions would first be offered to surplus employees and in the event the position was not filled internally it would be advertised. 2. In response to a line of questioning from Mr Britt, Mr Austin identified a large number of paragraphs set out in his statement that were not based on his personal knowledge. 3. Mr Austin agreed that he was aware the applicant was seeking reinstatement to customer service or administrative role. He also understood the applicant was seeking to be reinstated and not recruited to a position. 4. Mr Austin stated that successful CSA candidates commence their training at the Sydney Trains Petersham Training College where they typically spend 10 days learning the duties to be exercised. He agreed that the applicant's assessment centre score did not prevent her being trained as a competent CSA. 5. Despite the fact that the applicant had performed the PSS role for some time, Mr Austin stated that he was advised by "the HR and IR people" that she should be put through the assessment centre for recruitment. He was unaware that when the applicant applied for the PSS position, "she was ranked first of the candidates". Shortly stated, Mr Austin did not delve into her personnel file other than determine her length of service and the positions previously held with the respondent. 6. In relation to the respondent's percentile benchmarks and the applicant's 28th percentile ranking, Mr Austin was unsure about any relevant scaling within the recruitment/assessment process. He had not looked at nor remarked the applicant's examination and agreed he was unaware as to whether the questions put to the applicant during examination were the appropriate questions based on his own knowledge of the position. 7. Mr Austin agreed with the proposition that he had "no idea" whether the assessment report provided to him was accurate or not. Nor was he aware from his own knowledge whether or not the correct questions relevant to the position had been put to the applicant in the course of the examination. 8. Mr Austin agreed that the respondent's requirement that candidate who has failed a recruitment assessment examination cannot sit for a further examination for a period of 12 months was not found in any legislation nor the enterprise agreement. Rather, it was "just a policy" that did not take into consideration the circumstances of a person having been injured seeking reinstatement. 9. Mr Austin agreed that under the enterprise agreement there was no definitions "as to what work those people do" under the classifications RC1, RC2 and RC3. However, he understood the RC2 classification covered call centre and rail consultant employees whose duties involved the answering of telephone calls concerning ticket sales, regional services and booking travel via a computer based system. 10. Mr Austin agreed that a PSS received or potentially received a range of allowances in addition to base salary and conceded that he had not taken consideration any potential allowances applicable to the admin officer position. 11. Mr Austin confirmed that in March and April 2016, he was aware the applicant was seeking reinstatement to a CSA role. He agreed with the proposition that he did not specifically inform the applicant that she was required to undertake an examination and "would be treated just the same as anyone else applied off the street for a vacant position". The following exchange ensued: Q. You didn't tell the applicant that should be treated just the same as anyone else replied off the street for a vacant position? A. No I didn't tell her. Q. You did tell her but "We will continue with the overall recruitment process. This is ensure the business has some to fill in the role event you are unable to be cleared medically. A. Yes Q. Didn't you imply if she was cleared medically should be given the job? A. At that stage yes. Q. Then you told her "If you are cleared it will also give us an e-list to potentially fill other vacancies". What's an e-list? A. Eligibility list. Q. Of course that was only in relation to vacancies meaning vacant positions? A. If they came up yes. Q. Not positions that could be made available. A. I'm not quite clear. Q. You are considering only vacant positions weren't you? A. That's correct. 1. In relation to his evidence concerning the role of a train repeater, Mr Austin could not identify any tasks of that position which the applicant could not perform. 2. Mr Austin agreed that the evidence he had given earlier in proceedings concerning the fact that 17% of customers had a form of disability which required assistance being given to them to get on off trains "tells us nothing about the weight of the luggage", whether the luggage needs be lifted or wheeled, lifted over a gap nor the stations that those passengers enter and exit from. 3. Mr Austin was unsure whether respondent had employed any CSAs since April 2016. Certainly none had been employed in areas subject to his responsibility other than through the recruitment undertaken in or around April 2016. He confirmed that one CSA luggage attendant had left the employ of the respondent. He was unable to state how many clerical employees had been employed by the respondent since April 2016. 4. In relation to his evidence concerning CSA duties required at Mount Victoria Station, Mr Austin considered the following duties physically demanding, that is, requiring the employee to exert effort or have some level of physical fitness to perform the required task: * walking up stairs and along platforms to conduct right-of-way services for passing/stopping trains and conducting ongoing inspections/monitoring of platforms, stairs and entrances for trip hazards; * carrying a mop, bucket and cleaning equipment for the purposes of cleaning toilet blocks, this and locker rooms; * lifting and emptying garbage bins and potentially having to walk upstairs to empty it into a wheelie bin depending on the station concerned; * occasional shovelling of soil that is washed out of the garden beds onto the platform following rain, the pulling of weeds and use of the blower;and * putting the ramp in place to enable passengers to be assisted on and off a train and, where incapacitated, wheeled on off. 1. Mr Austin acknowledged that as a PA and PSS, the applicant was required to interpret a particular style of timetable for customers travelling to places other than Central Station. He agreed with the proposition that he had no knowledge of the applicant's competency concerning the reading of timetables and standard train notices. Similarly, he was unaware whether the applicant would be able to read the service timetable or standard train notices competently following the appropriate training. 2. Mr Austin conceded that whilst the Hot Dog Stand no longer operated, the duties exercised exist in other roles such as PSSs being present on the floor of the Grand Concourse and on the platforms to interact with the public as they were previously expected to do when the stand was operational. He agreed there was no physical reason to prevent the applicant performing that particular duty, that is, interacting with the public for a period of time will stop 3. In re-examination, Mr Austin stated that he considered Lapstone and Cowan stations to be outside the Sydney basin rail network 4. Mr Austin stated the recruitment process involved advertising the position and shortly thereafter, the assessment centre would contact him to discuss the position and give advice on what tests should be conducted to identify a candidate's core competencies. 5. Following a cull of applications, successful candidates at that stage of recruitment were required to undertake online testing so as to ensure they had competency in reading, comprehension and some timetabling depending on the role sought. The next stage of recruitment might involve customer service questions or a group discussion to determine a short list. The higher achieving candidates would be offered the role as advertised and an eligibility list or e-list would be created and retained for a 12 month period in case a further vacancy arose during that time. 6. Mr Austin explained a repeater shift could run for seven and a half hours or longer. A repeater shift is a daily requirement for "one line" of a fortnightly roster at Katoomba station and when those employees on that roster are not doing repeater work they revert to normal CSA work. 7. Standby staff are PSSs that are rostered essentially as a spare staff member in case of sickness or in the event an employee was unable to turn up for his or her shift, rather than "someone sitting room just waiting for a phone call". 8. Mr Austin contended that standby staff working at Central Station were expected to proactively find customers requiring help on the Concourse or on platforms, rather than the previous system of being located on the Hot Dog Stand waiting to customers to come to them. Moreover, the work undertaken previously at the Stand is now undertaken by the privately operated transport centre. Submissions Applicant 1. The applicant is an injured worker within the meaning of s 240 of the Act. 2. The applicant seeks to be reinstated to a part-time position in a customer services role or administration or in a general administrative role out of a station. She has made an application to the respondent for reinstatement and has produced a medical certificate to the effect that she is fit for employment of the kind that she has applied for as required by s 241 of the Act. 3. The fact that a Federal industrial instrument covers the work of the respondent is no impediment to the Commission's jurisdiction: ACI Operations Pty Ltd v Field [2011] NSWIRComm 5. 4. The work now sought by the applicant does not have to be the work which she previously carried out for the respondent. Rather, it can be any kind of employment at all, provided of course, that the employment sought is no more advantageous to her than that which she was engaged in at the time of becoming unfit. 5. The evidence of Mr Austin was that rather than considerimg reinstatement, the position of the respondent had adopted on the advice of IR/HR was that the applicant should be provided an opportunity to apply for a position through the normal recruitment process. 6. The legislative purpose of Part 8 of the Act is to ensure that employees who have been dismissed as a result of an injury are able to return to work should they recover and become fit for meaningful work within two years of the dismissal. Part 8 is clearly beneficial legislation and should be construed beneficially by the Commission. 7. The essential difference between the parties is whether the Commission should be satisfied that the applicant is fit employment for work of the kind sought. That consideration requires the Commission to decide whether it accepts the expert medical evidence of Dr Lorraine Jones and the opinion of Dr Paul Stephens concerning the applicant's fitness and restrictions, absent any independent medical assessment to the contrary. 8. The respondent's evidence concerning available work was restricted to the Western Line which falls under responsibility of Mr Austin. In the absence of a proper explanation as to why other areas of the respondent's business operations were not canvassed concerning work opportunities, the Commission should draw a Jones v Dunkel (1959) 101 CLR 298 inference that such evidence would not have favoured the respondent's case. 9. There is no evidence before the Commission that a part-time position in a customer services role or administration or in a general administrative role out of a station was not available as distinct from being vacant. 10. The respondent seeks to rely upon the provisions of Clause 20, Filling of Authorised Positions, under the enterprise agreement to support its case that a vacant position must first be offered to suitable employees awaiting redeployment and subsequently advertised for merit selection. However, the applicant is seeking to be reinstated pursuant to Part 8 of the Act and has not sought to apply for a vacant or advertised position. 11. The applicant concedes that pursuant to s117 of the Rail Safety National Law 2012, the Commission must be satisfied that the worker concerned is fit for the kind of work to which the Commission is considering reinstatement. It is open for the Commission to reinstate the applicant and should the respondent determine that the worker requires further training, it could require the worker to undertake the additional training for the position as provided by s117(5): Nothing in this section prevents a rail transport operator from requiring a rail safety worker to undertake further training before carrying out rail safety work. 1. The applicant is fit to undertake employment of the kind sought and the Commission is in a position to determine the applicant's fitness to carry out that work in a safe and timely manner, based on the medical evidence pressed in proceedings in support of the applicant's application for reinstatement. 2. Reference to the phrase, "employment of the kind" for which the worker applies for reinstatement in s 241(1) of the Act means "a particular and identifiable form of employment which the worker must specify when making the initial application". 3. Section 243(3)(a) empowers the Commission to order reinstatement to a specific form of employment for which the worker is fit and also of a kind that is available but that is less advantageous to the worker. 4. Section 243(3)(b) empowers the Commission to order reinstatement, that is to employment of a kind for which the worker is fit and also 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). 5. The provisions of ss 243(3)(a) and (b) do not relate to a position. Similarly, the term "available" appearing in Part 8 does not mean "vacant": 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 (Riley). 6. The type of work sought by the applicant is available. Respondent 1. The applicant's medical evidence is clear. The applicant is unfit for previous employment as a PSS and PSA. She now seeks reinstatement to different roles and reinstatement to different duties. 2. The Commission should note that with respect to some stations, the CSA can be the only person engaged on the particular station. As a CSA working alone on a station, there is a risk of aggregating the applicant's hip injury, albeit not quantified, or creating a new injury, should she be required to move luggage or assist a person with mobility issues. 3. The applicant's evidence was that she was essentially seeking a part-time customer services role or an administration or general administrative position on the Western line west of Lapstone or a role at Central Station. Administrative roles as sought by the applicant are undertaken at Central and Mount Victoria. The applicant had also expressed an interest in a RC2 administrative role in the Newcastle call centre: Quite clearly, we have customer service attendant roles in the Lapstone to Lithgow area. The description of roles at Central, certainly there are customer services activities. There are different positions in roles but there but there is assistance given to customers, there's no doubt about that. But even when we come down to the proposition respect of a hot dog stand, yes, some advice and assistance is given to customers, but in the context of NSW Trains' business, is it a function duty that they continue in a way that creates a position to which she could be reinstated? And I know I've jumped into the test in subsection bracket (3). ... But you look at that my friend talks about that being a meaningful role, it's identified as activities done by the passenger service supervisors when they're on standby are not going out to work elsewhere. So, in terms of doing something to do, that's giving them something to do. There is a distinction between giving them something to do from … sitting in the room, which Mr Austin identified and creating meaningful duties in the context of the NSW Trains business. 1. The Commission should have regard the Full Bench decisions in Cansino v South Western Sydney Area Health Service (1999) 130 IR 1 (Cansino) and Riley when considering the meaning of the terms set out under Part 8 of the Act including, "vacant and available"; "suitable employment"; "position"; "reinstatement"; "employment of a kind"; and "more advantageous". 2. Consistent with the Full Bench decision in Riley, NSW Trains should not have to reorganise its workforce or go to unreasonable lengths to create a position suitable to the applicant. 3. The applicant is also required to have both a capacity and capability to undertake the work sought. NSW Trains its subject to a rigorous regulatory regime and against that backdrop it is entirely appropriate for the respondent to look at the core capabilities of a candidate to determine their understanding the role sought and further, their capacity to undertake a CSA role. 4. The respondent submitted reinstatement of the applicant would be subject to further testing and in the event the Commission decided that the applicant should be reinstated, that reinstatement: should be subject to the six week training program at the Petersham training facility. … the position … then that you could take in respect of this is that any reinstatement of Ms Hillman would be subject to her resetting that test and meeting the benchmark. And it's entirely appropriate the employer sets a benchmark for those capabilities. … But if you therefore, in your discretion, and looking at it, having considered the importance to consider the employer's business and the impact, in looking at a question of a reinstatement of a part-time role to a CSA, then passing that competency test should be a requirement. 1. The Commission should accept that the base rate remuneration applicable to the RC3 clerical classification, a Monday to Friday position, is more advantageous to the applicant should she be reinstated to that position. Moreover, the applicant's pre-injury PSS position carried a single rate of pay whereas the RC3 is a five grade position commencing at Level A. 2. Given the RC3 salary grades range from $71,000 to $78,000 per annum, the applicant's quest for reinstatement to an administration role either at a station of within the respondent's administration must fail on the grounds that such a position is more advantageous. The Commission should also take note of the applicant's reluctance to travel to Cronulla or Newcastle. 3. The respondent acknowledged the base RC2 Level A classification put by the applicant as an alternative salary grade rate of pay was, at $59,000 per annum, less than the base PSS rate of pay. Consideration 1. As set out above, the question for determination is whether, on the evidence, the Commission is satisfied the applicant is fit for employment in a part-time customer service role, an alternative administrative role or, a general administrative role out of a station or, as a "repeater". The Legislative Scheme 1. Legislation concerning the protection for injured workers was first introduced in 1987 following passage of the Industrial Arbitration (Workers' Compensation) Amendment Bill. In the course of the Second Reading Speech for the package of bills before Parliament at that time, the Minister for Industrial Relations and Minister for Employment, the Hon P Hills MLA told Parliament: … Not only will workers be assured of fair and equitable compensation, but also they will under the legislation be given protection against unfair dismissal while on workers' compensation. Nothing is more devastating to a person who has been injured at the workplace than to be dismissed from employment while attempting to recover from injuries. In keeping with the emphasis on rehabilitation, and stressing the responsibilities of all the parties involved in the workers' compensation area, a prohibition will be placed on the dismissal of a totally incapacitated worker within the period of total incapacity, up to a maximum period of six months from the date of injury, unless it is certified medically that the worker is permanently unable to resume duties in his or her former employment. Workers whose employment is terminated outside that period of total incapacity and who are certified fit for their previous work will have a right to apply to the Industrial Commission for reinstatement. (emphasis added) (NSW Hansard, Legislative Assembly, 14 May 1987 at page 12211) These provisions were transferred to the Workers Compensation Act in 2009. 1. The Court of Appeal in Bindaree Beef v Riley [2013] NSWCA 305 at [47]), (Bindaree) Bathurst CJ (with whom Beazley P agreed) observed that it was "relatively clear" that the purpose of the reinstatement provisions under Part 8 was to "provide a mechanism to assist an injured worker to return to work either in his or her previous position or such other position for which he or she is fit". 2. It therefore follows that the Commission must be satisfied that the applicant is medically fit for the kind of employment she has sought for consideration pursuant to her application. 3. The respondent has not sought to rebut the presumption in s 244(1) and accepts the applicant's dismissal was a result of her injury. 4. Part 8 of the Act deals with the protection of dismissed injured employees and their reinstatement. Part 8 relevantly provides: 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. Part 8 of the Act is "beneficial legislation and should be construed as such": Chau v Visy Board Pty Ltd [2012] NSWIRComm 101 at [41] per Boland J. The beneficial nature of the legislation and the inherent recognition that employers should, as a minimum, go to reasonable efforts to accommodate an injured worker were observed by Bauer J and subsequently quoted with approval by the Court of Appeal in State Rail Authority of New South Wales v The Honourable Justice Bauer and Others (1994) 55 IR 263 at 267: … The aim of rehabilitation, if such a considerationbe relevant to the issues of construction raised, must surely be to integrate injured workers into the workforce at a type of work they can perform and to be useful that integration requires the continuing provision of suitable employment. There is an obligation on the employers to assist and co-operate in such a purpose, an obligation contained not only in legislation but imposed on the employer by its position as a corporate citizen. If the employer terminated the employment of an employee who after a work related injury has been integrated into the workforce the subversion of the laudable aim of rehabilitation lies in the dismissal not the reinstatement. 1. Part 8 permits an injured worker, being one who has suffered an injury, compensable under the Act to bring an application for reinstatement. The application for reinstatement needs to be made within two years after the injured employee was dismissed. These preconditions have on the material before the Commission been satisfied. 2. The legislative purpose of Part 8 of the Act is to facilitate an injured worker's return to work either in his or her previous position or such other position for which he or she has been deemed medically fit to undertake. 3. Section 241(1) of the Act enables a worker who has been terminated on the grounds of being unfit to fulfil the inherent requirements of the job as a result of the injury received, to apply to the employer for reinstatement. Where reinstatement is refused, s 242 entitles the worker to apply to the Commission for a reinstatement order. 4. The applicant is unable to return to work as a PSS or PSA. Nor is she, pursuant to ss 243(1) and (2), able to seek reinstatement to employment of a kind as sought in her application that is more advantageous than her primary employment roles at the time that she first became unfit for employment due to injury: Cansino at 11. Meaning of "employment of a kind" 1. The Full Bench in Cansino determined that reference to the term, 'employment of a kind' or 'of the kind' so appearing means the particular and identifiable form of employment that has been specified in the application: (11) An order may be made reinstating the employee to either employment of the kind for which the employee has applied (which may be as or less advantageous than the pre-injury employment) or employment of any other kind that is no less advantageous to the employee than that applied for. In either case, and importantly, any such order can only be made if the Commission is satisfied the employee is fit for that kind of employment: s94(2). (12) Whether and to what extent any such order is made under s94 is discretionary and the section should not be construed as imposing a mandatory requirement upon the Commission to make such an order, subject, of course, to the discretion being exercised in a proper manner. So much is clear from the repeated use in the section of the word "may". (13) If the Commission is satisfied it is appropriate to make an order under s94(2), the discretion reposes in the Commission as to which of the alternative courses it should adopt. In exercising discretion it would be necessary to do so on the evidence put before the Commission by the parties. (14) Because of the provisions of s94(3), it is apparent that any order made under s94(2) must be referable to the situation where the employer has "available" employment of the kind to which the employee has applied for reinstatement. As well, any other kind of employment that is no less advantageous to the employee than that applied for may only be the subject of an order under s94(2) if the Commission has determined that employment of that kind for which the employee has applied for reinstatement is available. This must follow, it seems, from the fact that s94(3) in permitting an order in respect of employment of a kind that is available but which is less advantageous to the employee as opposed to employment which is no less advantageous to the employee than that applied for may only be made where "the employer does not have employment of that kind available." (15) The reference in s94(2) to employment "that is no less advantageous to the employee" involves considerations of advantage and disadvantage not only by reference to remuneration and status but also by reference to any rehabilitation programme and the part that that other kind of employment played in that programme. (16) A determination of fitness for employment as referred to in s94(2) must necessarily be made on the basis of medical evidence. (17) The alternative orders available under s94(3) may only be made if the Commission is satisfied that the employer does not have employment "of that kind" (that is, the employment referred to in s94(2)) available. 1. Shortly stated, in considering reinstatement pursuant to 243(2), the Commission is required to examine the relevant duties that the applicant can perform, as distinct to whether a position actually exists to accommodate the work sought in a particular application. The applicant's fitness 1. No contrary medical evidence was brought by the respondent. In such circumstances, the medical evidence of Dr Jones must outweigh the opinion of Mr Austin. In the absence of any adverse medical evidence, I accept the evidence of Dr Jones. It follows that I have determined that the applicant is fit to undertake the work sought in her application. 2. The medical evidence of Dr Jones was that the applicant was not fit to return to work as a PSS or a PSA. However, Dr Jones clearly determined that the applicant was fit to undertake a customer service attendant or clerical administrative officer role. 3. In determining that prognosis, Dr Jones considered the various medical reports given to her by the applicant's solicitors together with the job descriptions and duty statements of CSA and, clerical and administrative officer roles at NSW Trains. 4. Specifically, Dr Jones determined the applicant was able to walk, stand, meet and greet customers without issue provided that she does not undertake heavy lifting on a repetitive basis. Train motion may be problematic. However, the applicant was able to stand for an hour then sit down. 5. Critically, Dr Jones' medical opinion was that the applicant was able to manage clerical duties without any problems. I do not consider Dr Jones' qualification concerning repetitive lifting materially affects her medical opinion concerning fitness. Accordingly; the applicant is fit for employment as a customer service attendant, clerical administrative officer, general administrative officer at a train station, concourse work at Central Station or repeater work as claimed. That has been proven to the requisite standard in cross examination of Dr Jones and Mr Austin. 6. Mr Austin frankly admitted that other than the applicant's test results, he did not know the extent, if any, whereby the applicant may require additional assistance compared to other employees when exercising the tasks required of a CSA. 7. Similarly, Mr Austin was unable to determine whether the applicant may find the time constraints of the CSA position more difficult to manage or would misinterpret information more often than others. His evidence was that the applicant's actual work performance as a PA and PSS was a "better measure than a theoretical examination". Moreover, the applicant's personnel file was absent any material to support the proposition that she may require "more assistance" to exercise the work of the positions sought than other undertaking the same work. 8. Moreover, the evidence of Mr Austin was that he could not identify any tasks required to be exercised within the train repeater role that the applicant could not perform. 9. In cross-examination, Dr Jones confirmed that in her opinion, "If she does not do heavy lifting, she does not get right groin pain". She considered heavy lifting to be a lift of more than 20 kg. 10. Dr Jones stated it was repeated handling of luggage rather than moving a single bag that could cause issues with the applicant's injury. In that regard, the requirement to move three or four bags over a four hour shift could prove problematic. 11. On balance, I consider the medical opinion of Dr Jones satisfies the requirement and supports the proposition that the applicant was fit for part -time work on and from the date of this application: Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Ltd (No 3) [2010] NSWIRComm 60 at [39]. Is employment of the kind sought available? 1. The authorities make it clear that "available" in s 243(3) does not mean, "a pre-existing specified position designated by the employer which is vacant": see IGA Distribution Pty Ltd v Moses (No 2) [2002] NSWIRComm 96; (2002) 114 IR 307 and Riley. The word "available" is to be taken to mean "another position was of avail to, capable of being used by, or at the disposal or within reach of, the employer - whether or not it was vacant at the time": Riley at [107]. 2. There is no evidence before the Commission that a part-time position in a customer services role or in administration or in a general administrative role out of a station was not available as distinct from being vacant. Given the remedial nature of the legislation and the size and nature of the respondent's operations, notwithstanding that some customer service functions are now outsourced, it is reasonable to expect that the work sought is available, particularly on a part-time basis. Whether the work sought is more advantageous? 1. In the event the applicant be reinstated to a clerical position at the RC2 level, I do not comprehend that position would, on balance, amount to an advantage when compared to her PSS and PSA pre-termination roles. It is correct, as the respondent has argued, that the various applicable allowances differ. Nor is shift work applicable. 2. In my view, the question of advantage cannot be determined on a line by line comparison. Rather, it requires a global assessment that takes into consideration the various "swings and roundabouts" of the former and sought positions. Does the Act contemplate a reinstatement application be subject to the rigour of recruitment? 1. At the time the applicant first sought a CSA role, she was subjected to the respondent's recruitment process as distinct from being reinstated to a position based on her medical fitness to undertake the inherent requirements of the position sought. 2. The respondent cannot seek to rely on the provisions of the enterprise agreement to circumvent the provisions of the Act. 3. The respondent has submitted that any reinstatement of the applicant would be subject to further testing and in the event the Commission decided that she should be reinstated, that reinstatement would be subject to the six week training program at the Petersham training facility. Importantly, the applicant would be required to satisfy the relevant testing benchmarks. That view is simply nonsense. 4. It is true that the work of a CSA or repeater is subject to Rail Safety National Law. So too is clerical work conducted in the private sector where the premises involve rail sidings, locomotive servicing and like activities. 5. Shortly stated, if the respondent's view was the intention of Parliament, the purpose and objects of the legislation would be thwarted. It would be open to employers to simply devise recruitment criteria so as to restrict or prevent reinstatement. 6. The applicant's medical fitness must also meet the requirements of the Rail Safety National Law. Section 52 of the Rail Safety National Law states that a rail safety worker, such as the applicant, who is to perform rail safety work in relation to "railway operations" must be fit to carry out that work safely and be competent to undertake that work. I consider she is fit to undertake such work. 7. The applicant has broad experience across a range of senior management and clerical operations. She has already exercised some of the skills required of the work sought in her application. In my view, it would be both fair and reasonable for the respondent to afford the applicant on the job training and coaching should additional training be necessary as required by s117 (5) considered below. There should be no formal testing. 8. The test under Part 8 is whether the worker is suitable for the work of the kind sought taking into consideration that the Commission is satisfied the worker is medically fit for that work and not, as the respondent appears to contend, whether the applicant is the best candidate for the position as assessed through recruitment. 9. The Court of Appeal decision in Bindaree Beef is authority for the proposition that the purpose of reinstatement under Part 8 is to assist an injured worker to return to work either in his or her previous position or such other position for which he or she is fit, provided, of course, that the Commission is satisfied the worker is fit for the kind of employment sought or arising for consideration under the application. 10. The applicant concedes the Commission must be satisfied the worker is fit for the kind of work sought in the reinstatement application. However, that concession does not suggest that the determination of fitness requires further assessment through a recruitment styled process. The respondent must rely on the medical evidence. It has not sought any alternate medical opinion. 11. The applicant has acknowledged that in the event of reinstatement, the Commission could compel her to undertake additional training should that is required by the respondent and directed in accordance with s117(5) of the Rail Safety National Law. 12. Given the Commission must also be satisfied that the worker concerned is fit for the kind of work to which the Commission is considering reinstatement, it is open for the Commission to reinstate the applicant and should the respondent determine that the worker requires further training, it could require the worker to undertake the additional training for the position as provided by s117(5): Nothing in this section prevents a rail transport operator from requiring a rail safety worker to undertake further training before carrying out rail safety work. 1. The applicant is fit to undertake employment of the kind sought and the Commission is in a position to determine the applicant's fitness to carry out that work in a safe and timely manner, based on the medical evidence pressed in proceedings in support of the applicant's application for reinstatement. Jones v Dunkel inference 1. The applicant contends that a Jones v Dunkel inference should be drawn because Mr Austin confined his evidence to his knowledge of the Western Line that he manages and not other areas of the respondent's business where further opportunities for the applicant's reinstatement may have existed. 2. It is the unexplained failure by a party to call a witness or adduce certain material that may lead to the inference being drawn. Any "explanation", such as the unavailability of a witness, cannot simply be assumed but must be established by evidence: West v Government Insurance Office (NSW) [1981] HCA 38; (1981) 148 CLR 62 (at 70) per Murphy J; 3. Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led: ASIC v Hellicar [2012] HCA 17; 247 CLR 345 at [165]-[166]. 4. Mr Austin subsequently provided evidence within his knowledge concerning job prospects on the NSW train network and the applicant's stated interest. I am satisfied with Mr Austin's explanations, despite their obvious limitations. 5. Accordingly, I do not consider that it is appropriate or indeed necessary to draw a negative inference as sought by the applicant. I propose to determine the matter based on the evidence put in proceedings. Conclusion 1. I have carefully assessed and weighed up all of the evidence and the submissions of the parties and determined that the applicant has satisfied the requirements of ss 241(1), 241(3) and 242(1) of the Act. Given the medical evidence, the Commission is satisfied the applicant is medically fit to undertake work in the positions sought on a part-time basis. Some further training may be required to be undertaken by the applicant as discussed above. 2. This is a case where it is appropriate to make orders under s 243(2) of the Act reinstating the applicant to "employment of the kind for which the worker has so applied for reinstatement": Cansino at 13. Orders 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 the 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 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 her 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. J D Stanton 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: 29 August 2017