Industrial Relations Commission New South Wales Medium Neutral Citation: Geoffrey Hibbard v Lithgow City Council [2019] NSWIRComm 1020 Hearing dates: 28 February 2019 Date of orders: 28 February 2019 Decision date: 28 February 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The Application is dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Workers Compensation Act – application for reinstatement by injured worker – whether employee dismissed because not fit for employment as a result of the injury – whether application for reinstatement compliant with legislation – review of applicable principles – jurisdiction of Commission not enlivened Legislation Cited: Industrial Relations Act 1996 (NSW) s 84, Ch 2 Pt 7 (rep) Industrial Relations Further Amendment Act 2006 (NSW) Workers Compensation Act 1987 (NSW) ss 4, 11A, Pt 8, ss 240, 241, 242, 243, 244, 248 Workers' Compensation (Dust Diseases) Act 1942 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 49(1), 74 Cases Cited: Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305; 239 IR 52 Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355; 130 IR 1 Glenn Robson and GWA Group Limited [2015] NSWIRComm 9 New South Wales Nurses and Midwives Association (on behalf of Jennifer Cox) v Manchester Unity Australia Limited [2015] NSWIRComm 1003 NSW Nurses and Midwives Association (o/b Lenard) v Wesley Community Services Ltd [2016] NSWIRComm 1013 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 Category: Principal judgment Parties: Geoffrey Hibbard (Applicant) Lithgow City Council (Respondent) Representation: Counsel: A Britt (Respondent) Solicitors: Ian Collins (Applicant) Local Government and Shires Association of New South Wales (Respondent) File Number(s): 2018/302815 EX TEMPORE Judgment 1. Geoffrey Hibbard, the applicant, was employed by Lithgow City Council ("Council"), the respondent, from 2000 until his employment was terminated on 18 December 2017. 2. On 3 October 2018 Mr Hibbard brought an application for reinstatement pursuant to s 242 of the Workers Compensation Act 1987 (NSW) ("Application"). The Application was opposed by the Council. 3. The hearing of the Application took place before me today. Mr Collins, solicitor, appeared for Mr Hibbard. Mr Britt of counsel appeared for the Council. Factual background 1. The following outline of the factual background to the proceedings is largely uncontested. I will refer only to those matters necessary to dispose of the issues in dispute between the parties. 2. Mr Hibbard commenced working with the Council in 2000. During his employment he worked in a number of roles including labourer, team leader, works foreman and rural overseer. In September 2017 he was working in the position Truck Driver/Backhoe Operator. 3. On 14 September 2017 Mr Hibbard had some involvement in the preparation and forwarding to the Council of a "petition" raising a number of allegations and grievances against Damien Sims, the Council's Rural Overseer ("Petition"). Mr Hibbard's was one of twenty-one signatures on the Petition. 4. On 15 September 2017 the Council wrote to Mr Hibbard requiring him to attend an interview on 20 September 2017 to discuss the matters arising from the Petition. I infer from the evidence that a similar letter was sent to all employees who had signed the Petition. 5. Mr Hibbard attended the interview on 20 September 2017. Other signatories to the Petition were similarly interviewed that day. On that day, Mr Hibbard and the other signatories were directed to maintain confidentiality in relation to the matters being discussed, and warned that a breach may result in disciplinary action being taken against them, such as termination of employment. 6. On 20 October 2017 Mr Hibbard was called to a meeting with Mr Graeme Faulkner, the General Manager of the Council, and others. Mr Hibbard was accompanied by Mr Robert Nugent, a union delegate employed by the Council. During the meeting Mr Faulkner informed Mr Hibbard that allegations had been made against him, to the effect that he had breached the direction to maintain confidentiality in relation to the investigation into the matters arising from the Petition. Mr Faulkner advised Mr Hibbard that he was to be suspended without pay pending the investigation into those allegations. 7. In a letter to Mr Hibbard dated 20 October 2017, Mr Faulkner wrote in part: "This letter is to confirm that you are suspended immediately without pay pending an investigation into the allegation that you have deliberately ignored my explicit verbal and written instruction not to discuss the on-going investigation into the very serious matters raised by you and other employees against your supervisor Mr Damien Sims." 1. On 25 October 2017 Mr Faulkner wrote to Mr Hibbard, setting out the allegations against him and seeking his response to them. The allegations, described in the letter as "complaints", were as follows: "Complaint 1 On the 13th September 2017 at approximately 3.45pm, it is alleged you attended the Office at Wallerawang Depot and approached a number of employees requesting if they would like to sign the petition against Mr Damien Sims. When one employee refused to sign the document you called the employee a 'spineless fuck'. … Complaint 2 On or around the week of the 13 October 2017 it is alleged you approached some of the petitioners at the Wallerawang Depot telling them that you had heard that some of the petitioners had retracted their statements and attempted to seek confirmation from those you approached that they hadn't retracted their statements. … Complaint 3 On or around the week ending the 20th October 2017, you approached Wallerawang Depot staff to ascertain if they had retracted their statements relating to the investigation, and if they knew of any other employees that may have retracted their statements or signature on the petition. It is alleged that you indicated to the employee at the time that if they did retract their statement – 'you are a fucking dog and anyone else who pulled out is a fucking dog.'" ("Allegations") 1. On 30 October 2017 Ian Collins, Solicitor, wrote to the Council on behalf of Mr Hibbard in response to the letter of 25 October 2017. Through that letter, Mr Hibbard denied the Allegations. 2. On 31 October 2017 Mr Hibbard obtained from Dr Andrew Denovan a document titled "WorkCover NSW – Certificate of Capacity". In that certificate Dr Denovan diagnosed Mr Hibbard as suffering from "anxiety and depression" which was stated to be the "direct result of bullying and allegations made at [the] workplace". The date of injury was given as 31 October 2017. 3. On 2 November 2017 Mr Collins wrote to the Council providing notice that Mr Hibbard was making a claim for compensation pursuant to the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The letter enclosed Dr Denovan's certificate dated 31 October 2017. Through that letter Mr Faulkner became aware on 2 November 2017 of Mr Hibbard's workers compensation claim. 4. The workers compensation claim was acknowledged in a letter from the Council to Mr Collins dated 2 November 2017. In the same letter the Council invited Mr Collins to put forward the names of employees who might act as witnesses in support of Mr Hibbard's denial of the Allegations. 5. On 7 November 2017 Mr Collins wrote to the Council, stating in part: "Our client has maintained strict confidentiality and is not in contact with Council employees in relation to these matters. He has not 'coerced' or 'intimidated' any employee to 'withdraw' the petition. He hasn't even seen employees since [his] suspension (except his son). He cannot put forward 'names of employees' to state to the contrary as he has not seen or spoken to employees to state he has not seen or spoken to them." 1. On 6 December 2017 the Council again wrote to Mr Hibbard. The letter informed Mr Hibbard that two of the Allegations had been found substantiated. The letter makes no reference to the third "complaint" referred to in the letter of 25 October 2017. Mr Hibbard was invited to show cause why his employment should not be terminated. 2. On 11 December 2017 Mr Collins wrote to the Council. In his letter Mr Collins made a number of contentions, including that the Petition amounted to "protected action" and that it "is an offence to terminate an employee in relation to industrial action and unfair to terminate an employee in relation to industrial action taken for the employees['] protection"; it would be an offence under s 248 of the Workers Compensation Act to dismiss Mr Hibbard in these circumstances; s 49(1) of the Workplace Injury Management and Workers Compensation Act makes it an offence to fail to provide suitable duties; it would be a "criminal offence" to terminate Mr Hibbard's employment in the circumstances; some witnesses had been pressured to make statements that were untrue; and, the Council's conduct was aggravating Mr Hibbard's injury and condition. Mr Collins maintained that Mr Hibbard denied engaging in any abusive conduct and requested a copy of statements provided by employees alleging otherwise. 3. In a letter dated 13 December 2017 the Council provided Mr Hibbard with a copy of two redacted statements. 4. On 14 December 2017 Mr Collins wrote to the Council, informing it that Mr Hibbard denied the contents of the two statements. 5. On 18 December 2017 Mr Faulkner wrote to Mr Hibbard. In that letter Mr Faulkner wrote in part: "I have thoroughly investigated all of the available evidence in relation to the recent investigation into allegations against you and have found that you: 1. Deliberately ignored my specific and repeated direction to maintain strict confidentiality in this matter, and 2. You have breached clauses 3.1(a) to (f) inclusive and 3.6 of Council's Code of Conduct. Based on these finding I have decided to terminate your employment effective 18 December 2017. Please note that contrary to assertions contained in your written responses, Council's disciplinary action is not related to your workers' compensation claim nor is it due to you being a signatory to the 'petition' against the Wallerawang Depot supervisor." 1. On or about 19 December 2017 Mr Hibbard commenced unfair dismissal proceedings against the Council, pursuant to s 84 of the Industrial Relations Act 1996 (NSW). Mr Hibbard did not press those proceedings and the file was subsequently closed administratively. 2. Mr Hibbard's workers compensation claim was the subject of conciliation proceedings in the Workers Compensation Commission. On 7 August 2018 the Workers Compensation Commission issued a Certificate of Determination ‑ Consent Orders recording the basis on which the parties had agreed to resolve Mr Hibbard's workers compensation claim. 3. On 21 August 2018 Mr Collins wrote to the Council, stating: "We act on behalf of the above named. We give formal notice pursuant to Section 241 Workers Compensation Act 1987 that Mr Hibbard be reinstated and provided with employment. We serve herewith Workcover Certificate dated 16/8/2018. We refer you also to Section 49(1) Workplace Injury and Workers Compensation Act, 1998 [sic] and the statutory requirement that an employer provide suitable duties [on] request from an injured workers [sic]. Mr Hibbard was successful in his Workers Compensation Claim." 1. Enclosed with Mr Collins' letter was a WorkCover NSW – Certificate of Capacity signed by Dr Denovan on 16 August 2018 declaring Mr Hibbard to be "fit for pre-injury duties". 2. In a letter to Mr Collins dated 17 September 2018 Mr Faulkner wrote: "Council does not accede to your request to reinstate your client Mr Geoffrey Hibbard as Mr Hibbard's employment was terminated on 18 December 2017 because of Misconduct." 1. Mr Hibbard commenced these proceedings on 3 October 2018. Evidence and submissions Mr Hibbard's case 1. Mr Hibbard read a statement he had prepared, dated 13 November 2018. He also tendered into evidence the determination of the Workers Compensation Commission of 7 August 2018 referred to above. Mr Hibbard was cross-examined. 2. In his statement Mr Hibbard deposed, in summary, to the following: 1. the history of his employment with the Council, including health issues which he claimed were work-related; 2. issues he claimed to have had with Mr Sims; 3. the process leading to the creation of the Petition; 4. the disciplinary process against him, that started with the meeting with Mr Faulkner on 20 October 2017 and culminated in the termination of his employment; 5. the commencement and resolution of his workers compensation claim; and 6. his view that the termination of his employment was directly related to his injury. 1. The written submissions filed on behalf Mr Hibbard's behalf, in their entirety, were as follows: "1. The Applicant was employed by the Respondent from 2000 as a labourer and progressed to team leader works foreman and from 2009 at rural overseer. 2. In 2014 he suffered a nervous breakdown due to work stress and was off work for 3 months. He voluntarily stepped down to position as truck driver and trained his replacement Mr Sims. 3. In April 2016 the Applicant lodged grievances in relation to Mr Sims. In May 2016 the Respondent agreed to 'monitor the situation'. In September 2017 the Union lodged a Petition signed by 21 workers in relation to Mr Sims. The Employer persuaded 14 of the 21 signatures to withdraw their complaints despite the complaints being overwhelmingly proved to be true, Mr Sims was demoted. 4. The Applicant was bullied and harassed by the new General Manager Mr Faulkner in relation to the Union petition and claimed workers compensation successfully in relation to that conduct. 5. The Applicant was off work from 30/10/2018 claiming Workers Compensation. The Insurer denied the claim and alleged the conduct was reasonable by the Respondent based on statements from Mr Faulkner. On 18/12/2017 Mr Faulkner then terminated the Applicant despite being on notice that his actions may be an offence (Unlawful termination) and likely to aggravate the Applicants injury. 6. On 6/8/2018 the Respondent agreed to Awards in favour of the Applicant for Workers Compensation in the WCC for the period from 30/10/2018- 6/8/2018 as the conduct of the Respondent was not reasonable. 7. On 21/8/2018 the Applicant served Notice to Re-Instate that was refused on 17/9/2018 by Mr Faulkner for the Respondent. 8. The Applicant seeks an Order for re-instatement under Part 8, Workers Compensation Act, 1987." [sic] The Council's case 1. The Council read an affidavit of Mr Faulkner dated 8 August 2018. Mr Faulkner was also cross-examined. 2. Mr Faulkner's affidavit was in large part directed towards establishing the chronology of events, as summarised above. He deposed as to the basis for his decision to terminate Mr Hibbard's employment, to which I will return. 3. The Council relied on detailed written submissions. Without detracting from them, it is sufficient to say that they came down to three fundamental contentions: 1. the application for reinstatement made by Mr Collins on 21 August 2018 did not meet the procedural requirements of s 241(1) of the Workers Compensation Act, in two respects. Firstly and most significantly, it did not specify the form of employment to which Mr Hibbard was seeking reinstatement. Secondly, the application was not made by "the worker", Mr Hibbard, but by his solicitor. (This second limb of the contention was not pressed by the Council); 2. Mr Hibbard was not "dismissed because he [was] not fit for employment as a result of the injury received", as further required by s 241(1); and 3. Mr Hibbard was not an "injured worker", as defined in s 240(2) of the Workers Compensation Act. (Again, this contention was not pressed by the Council.) The Legislation 1. Part 8 of the Workers Compensation Act relevantly provides as follows: Part 8 Protection of injured workers from dismissal 240 Definitions (cf IR Act, s 91) (1) In this Part: Commonwealth industrial instrument means any award, workplace agreement or other agreement made under (or taken to have been made, or to have effect, under) the Workplace Relations Act 1996 of the Commonwealth. industrial organisation of employees has the same meaning as it has in the Industrial Relations Act 1996. reinstatement includes re-employment. State industrial instrument has the same meaning as industrial instrument has in the Industrial Relations Act 1996. (2) For the purposes of this Part, an injured worker is a worker who receives an injury for which the worker is entitled to receive compensation under this Act or the Workers' Compensation (Dust Diseases) Act 1942. (3) For the purposes of this Part, a person is the employer of an injured worker only if the injury arose (either wholly or partly) out of or in the course of employment with that person. Note. For the purposes of comparison, a number of provisions of this Part contain bracketed notes in headings drawing attention ("cf IR Act") to equivalent or comparable (though not necessarily identical) provisions of the Industrial Relations Act 1996 (as in force immediately before the commencement of this Part). 241 Application to employer for reinstatement of dismissed injured worker (cf IR Act, s 92) (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 (cf IR Act, s 93) (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 (cf IR Act, s 94) (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 (cf IR Act, s 95) (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 was inserted into the Workers Compensation Act by the Industrial Relations Further Amendment Act 2006 (NSW), which commenced on 1 December 2006. Immediately prior to that commencement, relevantly identical provisions to those in Pt 8 were contained in Ch 2 Pt 7 (ss 91-100) of the Industrial Relations Act as then in force. That Chapter of the Industrial Relations Act was repealed by the amending legislation. 2. The history of the provisions is set out in Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355; 130 IR 1. In that case, in the context of what was then Ch 2 Pt 7 of the Industrial Relations Act, the Full Bench summarised (at 130 IR 1, 11-14) the operation of the provisions. I will not reproduce the entire passage. It is relevant in the present case to note only the following observations of the Full Bench: "(1) They [the provisions of Ch 2 Pt 7] are confined to a person who sustained injury in circumstances which created an entitlement to receive compensation under the Workers Compensation Act 1987 or the Workers Compensation (Dust Diseases) Act 1942. (Since 31 July 1998, the coverage was extended to persons entitled to receive compensation under the Workplace Injury Management and Workers Compensation Act 1998): s 91(1). (2) The employment of such a person must have been terminated by the employer 'because' (that is, for the reason that) the person was not fit for employment and such unfitness for employment must in turn have resulted from the relevant injury: s 92(1). A person is the 'employer', and hence liable to meet an order for reinstatement, only if the injury arose (either wholly or partly) out of or in the course of employment with that person: s 91(2). (3) Such a person may apply to the employer who dismissed him or her for reinstatement to 'employment of a kind' which the person must specify when making the application: s 92(1). … (5) Prima facie, the word 'reinstatement' imports a notion of becoming re-employed in the work which the person was undertaking at the time of termination of employment: see the discussion of the concept in Deltec International Courier Pty Limited v. Transport Workers' Union of Australia, New South Wales Branch [1993] 50 IR341 at 350-354; in any event, s 91(3) defines 'reinstatement' to include 're-employment'. But, such a notion is displaced because the reinstatement is said to be available to employment of a kind specified in the application which, necessarily, imports the possibility of employment to something other than the precise pre-dismissal employment. (6) 'Employment of a kind' refers to the work as specified in the application. The kind of employment applied for cannot be 'more advantageous to the employee' than the work in which the person was engaged when he or she first became unfit for employment because of the injury: s 92(2). … (7) It is necessary for the person to 'produce' (that is, show) to the former employer a certificate from a medical practitioner. The effect of the certificate, that is its general thrust, must be that the employee is fit to undertake the work as described by the employee when making application for reinstatement: s 92(3). …" 1. Cansino was cited with approval by the Full Bench in 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. 2. In Glenn Robson and GWA Group Limited [2015] NSWIRComm 9 Walton J held as follows: "[21] The jurisdiction of the Commission under Pt 8 of the WC Act is enlivened in the event that each element of the jurisdictional criteria outlined in ss 241(1), 241(3) and 242(1) of that Act is satisfied. [22] First, an injured worker must have been dismissed because he or she was not fit for employment as a result of the injury received: s 241(1) of the WC Act. (An injured worker is defined, for present purposes, as a worker who receives an injury for which they are entitled to receive compensation under the WC Act or the Workers' Compensation (Dust Diseases) Act 1942: s 240(2) of WC Act. Correspondingly, a person is the employer of an injured worker only if the subject injury arose (either wholly or in part) out of or in the course of employment with that person.) [23] Secondly, that worker must have made an application to the relevant employer for reinstatement to 'employment of a kind specified in the application' (see s 241(1) of the WC Act) and produced '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' in support of the same (see s 241(3) of that Act). Whilst the requirement to produce a medical certificate attesting to the requisite fitness constitutes what has been described as the 'gateway' to the Commission's jurisdiction under Pt 8 of the WC Act, the certificate given by a medical practitioner for the purposes of s 241(3) is by no means conclusive of the application brought and, in particular, the resolution of whether the injured worker is fit for the purposes of s 243(2) and (3) (see Bell at [25] and [26]). That reasoning must be correct because to find otherwise would render ss 242 and 243 of the WC Act otiose as there would be no need for steps beyond the receipt of the medical certificate received with the employer application (see, also, Bell at [28]). [24] Finally, the jurisdiction of the Commission is activated when the employer does not immediately reinstate the worker '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)': s 242(1) of the WC Act." Consideration 1. As Mr Collins stated at the outset of the hearing, this is not an unfair dismissal claim. The question for determination by the Commission is whether Mr Hibbard is entitled for an order of reinstatement under and in accordance with Pt 8 of the Workers Compensation Act. 2. Section 241(1) of the Workers Compensation Act allows an injured worker to make an application for reinstatement if he or she is dismissed because he or she is not fit for employment as a result of the injury received. The Act creates a presumption that the worker was dismissed for that reason (s 244(1)), which can be rebutted if the employer satisfies the Commission that the injury was not a "substantial and operative cause of the dismissal of the worker" (s 244(2)). 3. As a result of the concession made on behalf of the Council by Mr Britt, it is not in dispute that Mr Hibbard was an "injured worker" within the meaning of s 240(2) of the Workers Compensation Act. It was common ground that the question as to whether Mr Hibbard was dismissed because he was not fit for employment as a result of the injury received was the primary area of dispute between the parties. 4. In Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305; 239 IR 52 Bathurst CJ, with whom Beazley P agreed, made the following observations: "[50] The presumption in s 244(1) has the effect of placing the onus on the employer to demonstrate that the reason for dismissal was not because of unfitness for employment as a result of the injury received. Section 244(2) provides the mechanism by which that presumption can be rebutted. … [52] The reason for the presumption, in my opinion, is to overcome the difficulty a worker might otherwise have in establishing that the cause of dismissal was unfitness for employment as a result of the injury. To avoid that difficulty the onus is on the employer to prove that the dismissal was not connected with the worker's injury in the sense described in s 244(2). In those circumstances, it would be a misconstruction of the Act to conclude that the actual reasons of the employer for dismissal of the worker should not be taken into account in determining whether or not the presumption is rebutted. The question in effect is why the employer dismissed the worker. That can only be considered in the context of the actual reasons for doing so. [53] Neither the words subjective nor objective are used in the section. As was stated by Gummow and Hayne JJ in Barclay supra at [121], to consider sections such as s 244(2) by reference to either a subjective or objective criteria is to 'adopt an illusory frame of reference'. The question of whether the injury was a substantial and operative cause of the worker's dismissal is a question of fact to be decided by reference to all the circumstances including the employer's evidence as to such cause. [54] I do not think that the change in the wording of the presumption from 'for reasons not solely or principally related to the injury' to the phrase 'a substantial and operative cause' affects the conclusion that the inquiry is directed to why the worker was dismissed. This inquiry inevitably involves consideration of the reasons of the decision-maker. … [60] The words substantial and operative used by Mason J [in General Motors Holden Pty Ltd v Bowling (9176) 12 ALR 605] were adopted when s 244(2) was amended to its present form. The word operative emphasises that the dismissal must have been a matter which actuated the employer to dismiss the employee. … [63] The Full Bench was in error in stating that the test was objective. …" 1. In NSW Nurses and Midwives Association (o/b Lenard) v Wesley Community Services Ltd [2016] NSWIRComm 1013 Newall C described the approach in these terms: "[33] It is established that in the case of an application to the Commission for reinstatement, it is presumed the applicant was dismissed because he or she was not fit for employment as a result of the injury received unless the employer demonstrates the injury was not a 'substantial and operative' cause of the dismissal. It follows that the inquiry is directed to the reasons of the decision-maker: Bindaree Beef at [54], [71]. The test is subjective, not objective: Bindaree Beef at [63]." 1. Mr Faulkner was the one who made the decision to terminate Mr Hibbard's employment. His affidavit includes the following statements: "15. Following completion of Council's investigation into Mr Hibbard's conduct, I formed the view that the conduct of Mr Hibbard as alleged by some of his peers was substantiated and that it amounted to serious misconduct on the part of Mr Hibbard. … 21. Based on the information that I had before me in respect to the allegations against Mr Hibbard and his response to those matters I made a decision that Mr Hibbard's misconduct was such that it breached the Lithgow City Council Code of Conduct and justified the termination of Mr Hibbard's employment. … 32. Mr Hibbard was terminated for the reasons set out in my correspondence of 18 December 2017. Mr Hibbard was not terminated because he was not fit for work for employment [sic] as a result of an injury received. … 41. I have reviewed paragraph 17 of Mr Hibbard's Statement and comment as follows: Contrary to Mr Hibbard's assertions, his termination was a consequence of breaching Council's code of conduct relating to allegations of bullying and intimidation made against him by fellow employees, together with ignoring the direction of the General Manager concerning the maintenance of confidentiality relating to an investigation commenced well before the lodgement of a workers compensation claim by Mr Hibbard." 1. In his letter to Mr Hibbard dated 18 December 2017, confirming the termination of Mr Hibbard's employment, Mr Faulkner had stated that the disciplinary action was not related to the workers compensation claim. Mr Britt also drew attention to the fact that the investigation into the Allegations had commenced before the workers compensation claim was initiated. 2. I note in addition that there is evidence that from the outset of the investigation into the Allegations, they were viewed by the Council as sufficiently serious to warrant dismissal, if proven. Annexed to Mr Hibbard's statement is a handwritten document prepared by Mr Nugent following the meeting on 20 October 2017. Mr Nugent notes Mr Faulkner as saying: "This could lead to termination." 1. Annexed to Mr Faulkner's affidavit is a copy of the Application for Relief in relation to Unfair Dismissal filed by Mr Hibbard with the Commission. One of the attachments to that application appears to be a statement provided by Mr Hibbard in the context of his workers compensation claim. In that statement Mr Hibbard refers to the meeting of 20 October 2017 and says as follows: "133. [Mr Faulkner] then stated: 'and if these allegations are found to be fact your employment will be terminated'." 1. Finally in this regard, also annexed to Mr Faulkner's affidavit is a statement of Michael Joseph McGrath, which again appears to have been prepared in the context of Mr Hibbard's workers compensation claim. Mr McGrath is described as the Council's Organisational Development Manager. The statement is dated 13 November 2017, more than a month before Mr Hibbard's dismissal, and in it Mr McGrath says: "72. The allegations levelled at Geoffrey Hibbard are of significant gravity and if found to be sustained potentially liable to impact his future employment with Council." 1. This evidence provides a consistent narrative as to the seriousness with which the Allegations were regarded by the Council, and the action it took (namely, dismissal) once they had been substantiated to the Council's satisfaction. 2. Mr Hibbard's evidence as to the reason for his dismissal is as follows: "15. …The employer's intention once I lodged a worker's compensation claim was to terminate me and argue the matter in the Workers Compensation Commission … … 17. From 2014 when I had a workplace breakdown the employer was aware that I was vulnerable to further psychological injury and seems to have gone out of their way in 2016 and 2017 to further aggravate and target me to cause further injury. I believe the termination was directly related to my injury. I had already suffered and claimed psychological injury prior to that termination and they were aware the termination would further aggravate that injury and cause further injury." 1. In cross‑examination Mr Hibbard accepted that his evidence at [15] of his statement was an assumption based on his belief that the Allegations were false. He conceded the possibility that others might have found them to be substantiated. 2. In cross‑examination Mr Faulkner denied dismissing Mr Hibbard as a result of or for the reason of Mr Hibbard's workers compensation claim. Against this, Mr Collins invited the Commission to take what he described as a "leap of faith" and a "subjective, common sense approach". He contended that if one looked at the circumstances, it was more likely than not that Mr Faulkner did have in mind Mr Hibbard's workers compensation claim when he made the decision to terminate Mr Hibbard's employment. In response to Mr Faulkner's evidence, that this was not a substantive cause of the dismissal, Mr Collins asked the Commission to respond "well, of course it would've been". 3. The case put my Mr Collins rests essentially on these contentions: Mr Faulkner was aware of the workers compensation claim at the time he made the decision to dismiss Mr Hibbard; he was aware that it contained allegations that his own (that is, Mr Faulkner's) behaviour had caused or contributed to Mr Hibbard's condition; and, this would have provided motivation to terminate Mr Hibbard's employment to essentially try to get rid of the problem. 4. The submissions put by Mr Collins misapprehend s 244(2) of the Workers Compensation Act. The question is not whether Mr Faulkner was aware of the workers compensation claim; he certainly was. It is also not whether Mr Hibbard was dismissed for having brought workers compensation proceedings. The question is whether Mr Hibbard's injury was a substantial and operative cause of his dismissal. This is necessarily related to the requirement in s 241(1) that Mr Hibbard had been dismissed because he was not fit for employment as a result of the injury received. 5. With respect, Mr Collins' submissions require not just a leap of faith, but a wilfully blind one. They would involve the Commission not just to disbelieve Mr Faulkner, but to ignore the documentary and other evidence, and events on and after 20 October 2017, as referred to above. 6. In its submissions the Council contended as follows: "40. There is no basis not to accept the evidence of Mr Faulkner which is supported by the contemporaneous correspondence dealing with the Applicant's conduct and the Respondent's concerns about such conduct." 1. Having had the benefit of seeing Mr Faulkner in the witness box, and taking into account all of the evidence, I accept those submissions. This is not to make adverse findings against Mr Hibbard's credibility. He quite honestly conceded in cross‑examination that others might see events differently to his perspective. That is the situation in which I find myself. 2. I am satisfied that any injury suffered by Mr Hibbard was not a substantial and operative cause of his dismissal, and so I find that the Council has discharged its onus under s 244(2). 3. The evidence certainly does not support a finding that either Mr Faulkner or anyone else at the Council acted deliberately or maliciously to cause Mr Hibbard harm. 4. I find that Mr Hibbard was not dismissed because he was not fit for employment as a result of the injury. 5. It was common ground between the parties that such a finding would render it unnecessary to consider the other grounds on which the Council relied. I will not traverse them in any detail. 6. Indeed, I will say only this. During the hearing Mr Collins submitted that it was implicit that in his letter to the Council dated 21 August 2018 he was applying on Mr Hibbard's behalf for reinstatement to the position that Mr Hibbard had held immediately prior to being dismissed. I do not agree. 7. Mr Collins letter of 21 August 2018 is reproduced, in part, above. The letter did not specify the employment to which Mr Hibbard sought to be reinstated. Rather, it was unclear on the point. It opened by seeking that Mr Hibbard be "reinstated and provided with employment" before going on to make reference to Mr Hibbard's alleged entitlement to be provided with "suitable duties" pursuant to s 49(1) Workplace Injury Management and Workers Compensation Act. It is not possible to discern from the letter whether Mr Hibbard was applying for reinstatement to his pre-dismissal position, for "suitable duties" or for some other employment. No "kind" of employment is specified. 8. In light of Cansino (see (3) and (6) reproduced above), Glenn Robson at [23] and NSW Nurses and Midwives Association (on behalf of Jennifer Cox) v Manchester Unity Australia Ltd [2015] NSWIRComm 1003 at [20], I do not consider that the letter of 21 August 2018 satisfied the requirements of s 241(1) of the Workers Compensation Act. 9. For these reasons I find that Mr Hibbard has not enlivened the Commission's jurisdiction under Pt 8 of the Workers Compensation Act. 10. I order that the application be dismissed. Damian Sloan 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: 11 March 2019