ASMOF (NSW) v CSAHS

ASMOF (NSW) v CSAHS - [2005] NSWIRComm 339 - NSWIRComm 2005 case summary — Zoe

[16]

1 Professor John Morris worked at the Royal Prince Alfred Hospital in the inner Sydney suburb of Camperdown. He was at relevant times an employee of the Central Sydney Area Health Service (CSAHS), the Area Health Service which administers the Royal Prince Alfred Hospital. The CSAHS is the third respondent and the active respondent in the proceedings. 2 On 16 February 1993, when Professor Morris was head of the Hospital's Department of Nuclear Medicine, he was struck by a motor vehicle while crossing Missenden Road Camperdown (the street in which the Hospital is located) in the course of his employment with the CSAHS. The motor vehicle accident caused Professor Morris significant injuries and he received workers compensation payments in respect of his injuries. 3 Professor Morris brought proceedings in the Supreme Court of New South Wales against the motorist who caused his injuries. The proceedings were subsequently transferred from the Supreme Court to the District Court. In 1998 the proceedings were settled. The terms of settlement are part of the record of the proceedings. 4 As part of the terms of settlement and as required by s 151Z of the Workers Compensation Act 1987 Professor Morris' solicitors refunded an amount of $82,801.78 to GIO Australia, the CSAHS's insurer, being the amount of the workers compensation payments he had received in respect of the injuries. At the time s 151Z of the Workers Compensation Act 1987 was relevantly in the following terms: (1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: (a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation, (b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker's injury under this Act, and the worker is not entitled to any further compensation... ... (5) For the avoidance of doubt, this section applies and is taken always to have applied to the recovery of compensation or damages, whether or not the compensation or damages were paid under an award or judgment. For example, compensation or damages may be paid under an agreement. 5 Following a series of correspondence between the CSAHS, Professor Morris, his then solicitors (Steve Masselos & Co) and the Australian Salaried Medical Officers' Federation (New South Wales) (ASMOF), CSAHS terminated Professor Morris' employment on 3 March 1999. 6 Subsequently, by letter dated 2 March 2001 to Dr Diana Horvath AO, the Chief Executive Officer of the CSAHS, the Secretary of ASMOF made an application in accordance with s 92 of the Industrial Relations Act 1996 for reinstatement of Professor Morris in the position of Staff Specialist in Nuclear Medicine. ASMOF's letter included the following: Specifically, the kind of employment for which reinstatement is sought is:

[19]

A copy of a medical certificate is attached. In addition, the Federation will provide a supplementary medical certificate. 7 The medical certificate referred to in the letter was from Dr Ross Jeremy, Consultant Physician, of Macquarie Street, Sydney. The certificate from Dr Jeremy referred to his review of Professor Morris in December 1998 and that his memory impairment and loss of concentration were about the same as earlier observed. Dr Jeremy concluded: Professor Morris still has relative loss of memory and loss of concentration since his motor vehicle accident. He is capable of only limited duties, in particular, those that he performed in Nuclear Medicine over the past thirty years but he would have difficulty with new procedures. His chronic degenerative cervical and lumbar spine disease is a relative impairment to continuous full-time duty. 8 In May 2001, ASMOF provided to CSAHS another report from Dr Jeremy. This report was dated 17 April 2001 and referred to a further review by Dr Jeremy of Professor Morris on 6 March 2001 in which Professor Morris stated that his memory had improved and that in order to assess Professor Morris' functional capacity Dr Jeremy asked him if he would review the subject of pulmonary embolism in front of a medical audience. Dr Jeremy reported the result of that procedure as follows: He duly spoke at Auburn Hospital on 27th March 2001. The audience of approximately twenty comprised visiting medical officers, including two radiologists, medical and surgical registrars and interns. First, he interpreted nuclear scans, then gave a precise history of the advantages and limitations of the ventilation perfusion scan and also his interpretation of the current status of the lung spiral CT scan (an investigation not available at the time of his accident in 1993). There was considerable interaction between Professor Morris and the radiologists, and replies to a number of questions from the audience. In a concluding statement he suggested an allograph for the diagnosis of pulmonary embolism.

[21]

11 Until the commencement of the proceedings at first instance on 22 July 2003, no proceedings were commenced in the Commission either by ASMOF or on behalf of Professor Morris. The reason was presumably the terms of s 92, the relevant provision in the Industrial Relations Act, which provides: 92 Application to employer for reinstatement of dismissed injured employee (1) If an injured employee is dismissed because he or she is not fit for employment as a result of the injury received, the employee may apply to the employer for reinstatement to employment of a kind specified in the application. (2) The kind of employment for which the employee applies for reinstatement cannot be more advantageous to the employee than that in which the employee was engaged when he or she first became unfit for employment because of the injury. (3) The employee must produce to the employer a certificate given by a medical practitioner to the effect that the employee is fit for employment of the kind for which the employee applies for reinstatement. 12 It will be noticed that s 92(1) contemplates the dismissed injured employee applying to the employer for reinstatement on the basis specified in the employee's application. The employee is also required, pursuant to s 92(3), to produce to the employer a certificate given by a medical practitioner that the employee is fit for employment of the kind for which the employee applies for reinstatement. The definition of injured employee in s 91(1) is relevant to the operation of s 92 and its meaning is at the centre of these proceedings. Section 91(1) provides: (1) For the purposes of this Part, an injured employee is an employee who receives an injury for which the employee is entitled to receive compensation under the Workplace Injury Management and Workers Compensation Act 1998 , the Workers Compensation Act 1987 or the Workers' Compensation (Dust Diseases) Act 1942 . 13 There are other definitions in s 91. The definition in s 91(2) provides that a person is the employer of an injured employee only if the injury arose (either wholly or partly) out of or in the course of employment with that person and s 91(3) defines reinstatement to include re-employment. 14 Both ss 91 and 92 are to be found in Part 7, Protection of Injured Employees, of Chapter 2 of the Industrial Relations Act. The balance of the provisions in Part 7 comprises ss 93 to 100. Section 93 is in the following terms: 93 Application to Commission for reinstatement order if employer does not reinstate (1) If an employer does not reinstate the employee immediately to employment of the kind for which the employee has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the employee), the employee may apply to the Commission for a reinstatement order. (2) An industrial organisation of employees may make the application on behalf of the employee. (3) The 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 employee was dismissed. 15 Section 94 sets out the powers of the Commission to order reinstatement and also the bases upon which orders may be made. Section 94 is in the following terms: 94 Order by Commission for reinstatement (1) The Commission may, on such an application, order the employer to reinstate the employee in accordance with the terms of the order. (2) The Commission may order the employee to be reinstated to employment of the kind for which the employee has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the employee), but only if the Commission is satisfied that the employee is fit for that kind of employment. (3) If the employer does not have employment of that kind available, the Commission may order the employee to be reinstated to employment of any other kind for which the employee is fit, being: (a) employment of a kind that is available but that is less advantageous to the employee, or (b) employment of a kind that the Commission considers that the employer can reasonably make available for the employee (including part-time employment or employment in which the employee may undergo rehabilitation). (4) If the Commission orders the employee to be reinstated, it may order the employer to pay to the employee an amount stated in the order that does not exceed the remuneration the employee 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. 16 Section 95 creates a presumption in proceedings for reinstatement under Part 7 of Chapter 2 that the injured employee was dismissed because he or she was not fit for employment as a result of the injury received. Section 95 also provides that the presumption is rebutted if the employer satisfies the Commission that the injury was not a substantial and operative cause of the dismissal of the employee. Section 96 empowers the Commission to refer to a medical referee or medical panel any dispute as to the employees condition and fitness for employment. Sections 97 and 98 respectively deal with continuity of service of a reinstated employee and the duty of an employer to inform replacement employees employed within two years of the dismissal of an injured employee of the rights of the dismissed employee under Part 7 of the Act. 17 Section 99 relates to the prohibition of dismissal of injured employees within six months of injury. That section is in the following terms: 99 Dismissal within 6 months of injury an offence (1) An employer of an injured employee who dismisses the employee is guilty of an offence if: (a) the employee is dismissed because the employee is not fit for employment as a result of the injury, and (b) the employee is dismissed during the relevant period after the employee first became unfit for employment. Maximum penalty: 100 penalty units. (1A) For the purposes of subsection (1), the relevant period is: (a) the period of 6 months after the employee first became unfit for employment, except as provided by paragraph (b), or (b) if the employee is entitled under a Commonwealth or State industrial instrument to accident pay as a result of the injury for a period exceeding that period of 6 months--the period during which the employee is entitled to accident pay. Accident pay is an entitlement of the employee to payment by the employer, while the employee is unfit for employment, that is described as accident pay in the relevant industrial instrument. (2) It is a defence to a prosecution for an offence under this section if the employer satisfies the court that: (a) at the time of dismissal, the employee would not undergo a medical examination reasonably required to determine fitness for employment, or (b) at the time of dismissal, the employer believed on reasonable grounds that the employee was not an injured employee within the meaning of this Part. (3) The prosecution may establish that an injured employee was dismissed because the employee was not fit for employment as a result of the injury if the prosecution establishes that the injury was a substantial and operative cause of the dismissal. (4) This section applies even if the employee became unfit for employment before the commencement of this section. 18 The final section in Part 7 is s 100 which provides that Part 7 does not affect any other rights of a dismissed employee under the Industrial Relations Act or under any industrial instrument or contract of employment.

[27]

[54] In answering this question, it seems to me that two issues necessarily arise. Firstly, what effect does the word 'is' have in the expression "an injury for which the employee is entitled to receive compensation ...?" Secondly, was the employee entitled to receive compensation under the Workplace Injury Management and Workers' Compensation Act 1998 at the relevant time. [55] In my opinion, the use of the word 'is' in s 91(1) is unambiguous. Support for this view comes by particular reference to its grammatical usage. The word is the third person singular of the present tense of the word 'be.' When given its plain, ordinary English meaning in the present tense, the word "is" can only result in a construction that an 'injured employee' must be one who is entitled to receive compensation under the workers' compensation legislation at the time of dismissal. [56] Applying that approach, it must follow that if the entitlement to receive compensation does not exist, or no longer exists at the time the employee is dismissed, then the dismissed employee cannot be an 'injured employee' within the meaning of s91(1) of the Act. That must be so whether or not the entitlement has been extinguished by consent of the parties or order of the Court or by any other arrangement. This proposition would seem to be abundantly plain by the proper reading of s151Z(5) of the workers' compensation legislation. [57] While such a construction might be seen to give the definition a narrow interpretation, I do not understand how it could be logically otherwise. Moreover, it seems to me that if the legislature had intended to give the definition a wider interpretation, it could have easily used the expressions 'was entitled' or 'may be entitled' or have stated the appropriate connection between the entitlement to reinstatement and the time of the injury. [58] During the course of argument, Mr Docking cited various authorities in support of his construction of s91 of the Act. However, to my mind these cases are distinguished in one important respect; none of them consider any particular legislative provision dealing with the reinstatement of an injured worker. I concur with Mr Goot that the cases cited do not deal with the issue here to be determined. [59] The facts in this case are relevantly: 1. On 16 February 1993, Professor Morris was struck by a motor vehicle during the course of his employment and was injured. He filed a workers' compensation claim and began to receive workers' compensation payments. 2. In March 1994, Professor Morris commenced proceedings against the driver of the motor vehicle that had struck him. 3. In August 1998 Professor Morris settled the proceedings arising from his injury and repaid the workers' compensation payments he had received. 4. By so doing, Professor Morris no longer had any entitlement to compensation under the workers' compensation legislation. 5. Professor Morris was dismissed on 3 March 1999 after his entitlement to compensation had been extinguished. [60] Viewed in the context of this factual matrix, it seems incontrovertible that Professor Morris could not have been an 'injured employee' for the purposes of Pt 7 ch 2 of the Act. He was not entitled to, nor was he receiving workers' compensation at the relevant time, being the date of his dismissal. It is axiomatic that Professor Morris is unable to bring a claim for reinstatement under Pt 7 ch 2 of the Act. That being so, paragraphs 1 and 2 of the notice of motion must be granted and the substantive application dismissed. 26 His Honour then ordered that the application by ASMOF, on behalf of Professor Morris, be dismissed. Proceedings on appeal

[28]

27 ASMOF has appealed against the decision of Sams DP primarily on the ground that his Honour erred in the proper construction and application of the provisions of Part 7 of Chapter 2 of the Industrial Relations Act and, in particular, in the construction and application of s 91(1) of the Act. The grounds also included reference to alleged error in the proper construction and application of s 151Z of the Workers Compensation Act 1987 and that error occurred in the decision of Sams DP as to the effect of the word "is" in s 91(1) and, in particular, in Sams DP deciding that in order to give a sensible construction to s 91(1), "is" must be read to include "was". As we understand it, this later contention involved the suggestion that error occurred when his Honour decided that the entitlement to receive workers compensation must exist at the time the employee is dismissed. A more general ground of appeal was on the basis of the inappropriate distinguishing of the principles referred to in authorities such as those in Brambles Constructions Pty Limited v Helmers (1966) 114 CLR 213, Leonard v Smith (1992) 27 NSWLR 5 and Lapcevic v Collier [2002] NSWCA 300. 28 At the hearing of the appeal Mr B D Docking of counsel appeared for the appellant and Mr M J Kimber SC and Mr A B Gotting of counsel appeared for the third respondent. Mr M Thistlethwaite was granted leave to appear on behalf of the Labor Council of New South Wales to support the submissions of the appellant. 29 During the course of the hearing, because it appeared that the issues raised by the appeal raised more general considerations from those specific to the circumstances of Professor Morris, the Full Bench raised with the parties whether the matter should be drawn to the attention of the Minister for Industrial Relations so that consideration should be given to the Minister's intervention pursuant to s 167(3) of the Industrial Relations Act on the basis that such intervention would involve the making of submissions in writing after the hearing of the appeal had concluded. Neither party raised objection to this course.

[31]

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 the 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 in Minister's submission - Hansard, Legislative Assembly, 14 May 1987 p 12211). 33 The submission then traces the development of the legislation as to the protection of injured workers through the 1991 Act and provides details of the definition of "injured employee" in s 235(1) of the Industrial Relations Act 1991 and records the terms of that provision. It is sufficient to note that it is in material terms the same as the definition inserted in the 1940 Act in 1987. 34 The Minister's submission then referred to the provisions in the 1996 Act and referred to the Explanatory Memorandum and the Minister's Second Reading Speech in this way: The Explanatory Memorandum to the Act stated that Part 7 of Chapter 2 was a re-enactment of the provisions of the 1991 Act designed to protect the employment of employees injured on the job. It was noted that there had been amendments to the provisions: The application of the provisions and the remedies available have been clarified and extended having regard to the provisions relating to unfair dismissals. (page 5 of Explanatory Memorandum). In the Second Reading Speech delivered in Parliament on 23 November 1995 the Minister noted that Part 7 of Chapter 2 carried forward the provisions of the 1991 Act which were designed to provide certain employment security rights for persons who have suffered a work-related injury. The Minister stated: The existing provisions have been the subject of some judicial criticism and the Bill has been redrafted to state more clearly the powers of the Commission in this area and to make some appropriate changes to assist injured workers. The Bill now allows the Commission the discretion to make back payments. This is an appropriate discretionary measure; dismissed injured worker, no less than unfair dismissal applicant, should not be disadvantaged financially and should be encouraged to return to work. There is no ability to order compensation in lieu of reinstatement, the policy objective is the reinstatement of injured workers.

[34]

36 We turn then to the submissions of the parties. In view of the approach we have taken to the issues in the appeal and the conclusion we have reached it is necessary only to set out a short summary of the submissions of the appellant (ASMOF) and the third respondent (CSAHS). 37 The appellant submitted that leave to appeal should be granted because the issues raised in the appeal were of sufficient importance to warrant the grant of leave and the decision at first instance contained significant errors of law that went to important aspects of the Commission's jurisprudence in injured worker applications and the public interest element in s 188 was satisfied because of the public importance of errors in this area being corrected. 38 It was also argued that the expression "injured employee" in the relevant provisions of the Industrial Relations Act had not been the subject of any, or any significant, judicial scrutiny as to its meaning. The appeal therefore raised substantial important issues of principle law and had wide implications for the jurisprudence of the Commission: Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 382. CSAHS did not oppose leave to appeal as the expression "injured employee" had not been the subject of any judicial scrutiny. 39 The appellant submitted that the Deputy President, at first instance, failed to properly consider the relevant statutory test and this demonstrated legal error and error in principle. 40 The appellant submitted that Sams DP held that an "injured employee" must be one who is entitled to receive compensation under the workers compensation legislation at the time of the dismissal. In that respect, it was said that the pivotal part of the reasoning of Sams DP was that at para [55] to [57] of his Honour's decision and it was submitted that that passage (which has been set out earlier in these reasons) contained significant errors of law and principle. In that regard a number of cases were referred to in which courts had held that, in the particular circumstances relevant, it may be necessary, in order to give a sensible construction to relevant provisions, to read the word "is" as if it meant "was": for example, Hargraves v Hopper (1875) 1 CPD 195; Bergin v White [1956] St R Qd 432; Lapcevic v Collier [2002] NSWCA 300 and Leonard v Smith (1992) 27 NSWLR 5. 41 Particular issue was taken with the reliance by Sams DP on the judgment of the High Court in Brambles Constructions Pty Limited v Helmers (1966) 114 CLR 213. 42 In that respect, the appellant contended that his Honour had not followed the usual rules governing statutory construction, which would include an examination of the context in which the relevant expression was used and the objects of the relevant statutes and on the authority of Morrison v Powercoal Pty Ltd (2004) 137 IR 253 that it was appropriate to have regard to how the relevant phrase or words had been construed in other statutory contexts. 43 Specific issue was also taken with the approach of Sams DP, it being submitted that his Honour had given a narrow construction to s 91(1) based only on the grammatical usage of the word "is". In aid of this submission reliance was placed upon a number of authorities including the judgment of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]. It was also said that there was a need to avoid a construction the consequences of which were manifestly inconvenient, absurd, irrational or capricious or which would result in serious injustice; that this had occurred in this case by the adoption of the respondent's submission as to the temporal nature of s 91 by Sams DP. 44 It was submitted that relevant authority showed that work injuries and consequential workers compensation payments were "often not static but dynamic". The approach of Sams DP meant that an injured worker would have a fluctuating entitlement to make a relevant application: South Eastern Sydney Area Health Service v Gadiry [2002] NSWCA 161 at [15] to [17] and [40] and State Rail Authority of New South Wales v The Honourable Justice Bauer (1994) 55 IR 263 at 267 and 269. 45 The appellant also relied heavily upon the consideration that the relevant provisions of the Industrial Relations Act were designed to provide certain employment security rights for a person who had suffered a work related injury and the relevant policy objective was the reinstatement of injured workers: Cansino v South Western Sydney Area Health Service (1999) 130 IR 1 at 11 and the reference there to the relevant Second Reading Speech; the provisions were remedial and beneficial in nature and the construction provided should result in favour of the enhancement of the right and against its diminution: Cole v Direction-General of Department of Youth and Community Services (1986) 7 NSWLR 541 at 543. 46 As to s 151Z of the Workers Compensation Act, it was submitted that an injured worker application under the Industrial Relations Act was not governed by s 151Z(1)(b) of the workers compensation legislation and thus the application before the Commission had nothing to do with the adjustment of the financial rights between the worker, the employer and the stranger to the litigation before the Commission (that is the driver of the motor vehicle who was the defendant in the common law proceedings). It was observed that the meaning of s 151Z had been considered by the Supreme Court in the judgments in Leonard, Lapcevic and Gadiry and it was submitted that reference to other judgments show that an injured worker application under the Industrial Relations Act was not governed by that provision: see, for example, I & J Foods Pty Limited v Bergzam Pty Limited (1997) 14 NSWCCR 486 and Franklins Self Serve Pty Ltd v Wyber [1999] NSWCA 390 at [52] to [54], [107] and [121]. 47 Finally, the appellant submitted that Professor Morris was not seeking "any further compensation" to be paid pursuant to s 151Z(1)(b) of the Workers Compensation Act. The expression "the worker is not entitled to any further compensation" in that provision was limited to compensation payable under the Workers Compensation Act. The legislative language and context supporting this conclusion included the proper analysis of the terms of s 151Z and also reference to other provisions of the legislation such as s 149 (the definition of "compensation payable under this Act") and s 151. 48 The third respondent, CSAHS, submitted that Sams DP did not err as submitted by the appellant and that, as his Honour held, s 91(1) of the Industrial Relations Act on its proper construction requires a temporal connection between an entitlement to compensation under the workers' compensation legislation and the time of dismissal. 49 It was submitted that Sams DP did not commit error in proceeding in the way he did. In focusing upon the words employed in the statute and by concluding that the broad remedial purpose of legislation could not be accommodated within the words employed, the approach of Sams DP accorded with authority of this Commission and other courts and tribunals; see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Drake Personnel Limited v WorkCover Authority (NSW) (1999) 90 IR 432 and Crowe v UCS Developments Pty Limited (2003) 130 IR 266 at 283 [63]. His Honour's conclusion as to the existence of a temporal connection between the entitlement to receive workers' compensation and the dismissal, was correct as a matter of ordinary language and the natural meaning of the words used; and the decisions of the Court of Appeal and the Supreme Court relied on by ASMOF were properly distinguishable.

[35]

50 CSAHS submitted that, in any event, the existence of a temporal element is supported by the scheme of Part 7 of Chapter 2 of the Industrial Relations Act. The rights created by the Part are conditional upon a "dismissal" of the injured worker occurring; the heading to s 92 of the Act is "Application to employer for reinstatement of dismissed injured employee"; the Commission may make under s 97(1) of the Act an order that the period of employment of the injured employee is not broken "by the dismissal". This scheme with its emphasis upon "dismissal", reveals the real purpose of Part 7 of Chapter 2 of the Act, the provisions of a variety of remedies to a person entitled to workers' compensation at the time of dismissal. 51 Further support, it was said, for the suggested temporal element is demonstrated by an analysis of the provisions of Part 7 of Chapter 2 of the Act which demonstrates that Part 7 was not designed to protect employees merely because, at some earlier point in time during the course of their employment, they suffered a work related injury from which they thereafter recovered such that they were "fit for employment" either for the purposes of their pre-injury position or from some other position with their employer. That is, the Act does not bestow upon such employees some accrued right to be treated as "injured employees" for the purposes of relying on Part 7 at any later point in time when employment is terminated. It is neither "absurd" nor an unlikely intended outcome for formerly injured employees (i.e. not relevantly unfit or incapacitated at the point of dismissal) only to have "unfair dismissal" rights pursuant to Part 6 of Chapter 2. 52 It was also contended that: This serves to explain, and make sense of, Parliament's decision to require persons seeking to take advantage of Part 7 of Chapter 2 of the IR Act to have an " entitlement " to compensation pursuant to the workers compensation legislation as at the time of dismissal. The Part is designed to provide extra protection/benefits for such employees who are, by definition , at that time relevantly unfit/incapacitated for work as a consequence of a work related injury, because of the contemplation or expectation that they may well recover within a further two year period. In other words, is it to be seriously suggested that a worker who suffered a work related injury five or ten years earlier; recovered sufficiently to return to pre-injury or other gainful employment with the employer; and received all relevant " entitlements " associated with that work related injury could/should nevertheless be able to have the benefit of a two year reinstatement " window " post dismissal merely because of that old injury?

[36]

The Appellant here had a work related injury and did have an entitlement to workers compensation, but courtesy of his own decision to pursue a claim for common law damages against a third party (i.e. not his employer) he surrendered his workers compensation entitlements associated with that work related injury such that, on no account, could it be said that he was still a person " entitled " to workers compensation at the point of his dismissal. The worker's Part 7 rights are linked to that present "entitlement". If Parliament had wanted to completely separate the respondent's rights to seek reinstatement as an " injured employee " from his compensation rights under relevant workers compensation legislation, then such an object could have been readily achieved by defining " injured employee " not by reference to compensation " entitlements " under New South Wales workers compensation legislation. The approach adopted by the Parliament also makes sense given the obvious inconsistency between Workers Compensation and common law damages claims wherein workers seek to emphasise the extent of their unfitness for work and residual disabilities (so as to maximise financial compensation) and Part 7 claims wherein employees seek to emphasise their fitness for either their pre-injury or some other form of work offered by their former employers. It can hardly be assumed that Parliament wanted to leave open, let alone encourage, the prospect that workers can assert total or substantial unfitness for work in pursuit of a maximum Workers Compensation/common law damages outcome; gain such an outcome via a generous settlement; and thereafter allege " fitness for work " so as to ground a claim for reinstatement. 53 The CSAHS made a number of criticisms of the approach of the appellant. For example, it submitted that the appellant overlooked the statutory scheme in its primary construction of s 91 of the Act and also ignored the scheme in describing the alleged purpose of the provisions. In substance the primary construction urged by the appellant is not permitted by the language employed in s 91 of the Act but requires the addition of the words "at any time" after the phrase "is entitled to receive compensation". While words can be read into a statute in limited circumstances in order to give effect to the legislative intent, the present case does not present such a situation. The addition of the words "at any time" would be inconsistent with the scheme of the Act. Were the Commission to interpret the statute in this way, the Commission would assume a legislative function rather than pursue its legitimate interpretative role.

[42]

60 We also accept the approach of CSAHS concerning the approach of the appellant relying on broad or general rules of statutory interpretation such as the rule of beneficial construction. We do not consider that the multiplicity of references to a variety of workers compensation decisions from superior courts was of great assistance. Further, the particular relevance of s 151Z of the Workers Compensation Act was that it showed that Professor Morris did not have an entitlement to workers compensation payments at the time of his dismissal; beyond that consideration, we do not consider the terms of s 151Z are of significance in the present issue. 61 The approach to the construction issue that should be adopted in this matter is that referred to in Commander Australia Limited v Kerr (2004) 134 IR 160 at 170; [2004] NSWIRComm 74 at [35], where the Full Bench of the Court Session observed that the operation of statutory provisions is a question which, as with any issue of construction, may often be resolved by ascertaining the intention of the legislature from the express words of the instrument viewed in their context. The judgment in Commander Australia continued: [36] Second, a statutory provision must not be construed in isolation but in the context in which it appears as part of the whole instrument. Third, courts are obliged by statutory injunction to prefer a construction which would promote the purpose of a statute to one which would not. Fourth, the requirement to look to the purpose or object of the statute transcends the former obligation to adopt the traditional mischief or purpose rule in preference to the literal rule of construction because the earlier rule required the identification of an ambiguity or inconsistency before the court could have regard to purpose. Further, if the language of the statute or statutory provision is not ambiguous or uncertain, the court will apply its ordinary and grammatical meaning unless to do so will give the statute an operation that was obviously not intended: Mills v Meeking [(1990) 169 CLR 214] at 223.

[56]

(19) Section 94(3) creates two further alternative bases for the exercise of discretion, but in either case the Commission is required to find that the employee is fit for the alternative employment which is the subject of the order. Again, fitness would appropriately be determined by reference to relevant medical evidence. ... 66 What is most significant for present purposes in the statutory scheme, and the above analysis of it, is that remedies of the kind being sought in the proceedings are discretionary and the various exercises of discretion under the scheme depend on factual findings as to the respective criteria laid down in the statute, the criteria relating to issues such as the applicant's fitness and availability for employment. We consider that the discretionary nature of the remedies provided by the statutory scheme is a pertinent consideration in construing the relevant provisions. The significance of this consideration is that a finding that a person is eligible to commence proceedings is not, as seems to have been implicit in the submissions of CSAHS, equivalent to a finding that relief should or will be available to the applicant. In fact, the success of any application will depend on the satisfaction of a number of statutory criteria and, if the criteria are satisfied, will then depend on the exercise of discretion in favour of the applicant. 67 It is also relevant to look to certain time constraints contained in the statutory scheme. Section 99 makes it an offence to dismiss an injured employee within six months of a compensible injury (or in some cases, within a longer period) if the employee is not fit for employment because of the injury. The purpose of s 99 is to preclude dismissal during the relevant period on the basis of unfitness for employment. 68 After the period contemplated by s 99, an employee may be dismissed on grounds which relate to or include unfitness for employment. However, within the period of two years after the dismissal the employee may apply to the employer for reinstatement in employment of the kind specified in the application and for which the employee provides medical certification to his/her employer: see s 92. Section 95 provides a rebuttable statutory presumption as to the reason for dismissal. 69 The rights under the statutory scheme are available to an "injured employee", as defined. Two questions then arise: first, what is the ordinary grammatical meaning of the definition of "injured employee"? Second, in respect of an employee who has been dismissed because he or she is not fit for employment as a result of the work-related injury received, is there any basis to distinguish between employees still receiving, or eligible to receive, compensation payments and those not in that situation? 70 As to the first question, close attention to the terms of the definition "injured employee" in s 91(1) of the Industrial Relations Act shows that the phrase or expression "is entitled to receive compensation ..." is to be seen as part of the clause "for which the employee is entitled to receive compensation ...". That clause does not, in our opinion, seek to impart or draw a temporal distinction between present or, for example, past entitlement. Rather, the clause is inserted in the definition as descriptive of, or defining, the kind of injury received by the employee which qualifies the employee as an "injured employee". 71 When the clause is seen in that way, which we consider is its ordinary grammatical meaning, it means that, for an employee to be an "injured employee", as defined, the injury received must be one for which there was an entitlement to workers compensation. That of course does not mean that the employee will have rights for relief under the statutory scheme forever. Any rights will depend on the employee being dismissed because of lack of fitness for employment, the application being brought within the relevant time frame and the employee's application being supported by a medical certificate as to fitness in relevant respects. 72 Once regard is paid to those limitations on the rights available under the statutory scheme, there is no reason to read the definition as distinguishing between employees depending on whether or not they are entitled to compensation payments. There is thus no reason to depart from the ordinary meaning of the relevant expression. The conclusion reached is, we consider, consistent with the statutory purpose; that is, to promote rehabilitation and return to work of employees injured at work by providing some measure of protection to them from dismissal on the basis of work-related injury provided the employee establishes a relevant level of fitness for work and the application is brought with a reasonable time after the dismissal. 73 The statutory purpose we have identified emerges from an examination of the legislation itself. It is also confirmed by the various Second Reading Speeches referred to in the Minister's submissions, to which we have earlier referred. We do observe however that in the then Minister's Speech of May 1987 there is reference to workers being given "protection against unfair dismissal while on workers' compensation". Although it might be thought that choice of words supports the contentions of the third respondent, to take a narrow view of that part of the Minister's Speech would be to fail to give appropriate weight to the balance of the speech which provides not only the context in which that part of the speech is to be considered, but also a clear statement of the purpose of the legislation. 74 In any event and equally significant to the issue before the Full Bench is the fact that we have primarily decided this matter having regard to the ordinary grammatical meaning of the relevant expression. In that circumstance, authority provides that the "words of a Minister must not be substituted for the text of the law": Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518, although, as we have already noted, it is not necessary or appropriate to read the text of the Minister's Speech in a narrow manner. 75 After the decision in this matter was reserved, submissions were received from the appellant and CSAHS concerning the judgment of Dunford J in the Supreme Court in NRMA Insurance Ltd v Motor Accidents Authority of NSW [2004] NSWSC 567. The appellant relied on his Honour's judgment for the approach taken to the construction of a phrase used in the Motor Accidents Compensation Act 1999 in which the word "is" occurred. What his Honour held was: [18] In particular, attention was directed to the use of the word "is" in s 61(2)(a) and it was submitted that in any assessment it is the present degree of permanent impairment at the time of the assessment which is to be assessed and not that at some past date (such as immediately prior to the date of death). However, although the word "is" generally denotes present tense, this is not universally so. In Public Trustee v McKay [1969] NZLR 995, it was held that the Minister was authorised to make a decision whether a person "is or is not" a "hospital patient" under relevant legislation notwithstanding that at the time of the declaration, the person was no longer an inmate in the institution. McCarthy J at 1002 said: "Nevertheless, when one reads the subsection in the context of this particular part of the Act as a whole, it is plain that the legislature was speaking in an ever present sense, posing the question of the character of the patient's care as being always in the present. This is by no means an uncommon use of the present tense of the verb to be". [19] Turner J (at 1005) considered that in its context, the word "is" was used without any temporal significance at all, whilst North P (at 1008) was of opinion that the use of the present tense in the subsection "did not relate to time".

[58]

[21] In my view, similar considerations apply here. What the assessor is required to assess under s 61(2)(a) is whether the degree of permanent impairment of the injured person is greater than 10 percent. The person is injured once and for all at the time of the accident, so the injury is past; the permanent impairment on the other hand is a continuing static condition, but it is in any case only permanent up until the time of death, whether such death occurs prior to the assessment or many years after it. Accordingly, I consider that the word "is" in s 61(2)(a) is not used in a temporal, but rather a narrative sense and should be read as meaning "is or was" . (emphasis added) 76 CSAHS submitted that the case "did not affect the appeal in this matter" as it was based on its own facts and circumstances and related to a specific and distinct statutory scheme. 77 We accept generally the approach of the CSAHS on this issue. However, the judgment of Dunford J does illustrate the need to construe general expressions in their context, as such words often significantly depend for their meaning on the context. We also consider our decision is not inconsistent with the approach of his Honour in that it shows, in a way similar to that of Beazley JA in Lapcevic v Collier [2002] NSWCA 300 at [68], that the approach we have adopted to the present legislation has been taken in other legislation in the area of compensation and insurance. 78 We therefore accept the Minister's contention that Parliament did not intend to narrow the class of persons eligible to seek the protection of Part 7 of Chapter 2 of the Act, from employees who have sustained a workplace injury to employees who are entitled to worker's compensation at the time of the application for such protection. We regret therefore that we are obliged to come to a different conclusion to that reached by Sams DP at first instance. 79 Before concluding we should refer to one matter which, although not argued, still appears to be a potential issue in the proceedings. Although we have not reached a firm conclusion on the issue, we have some doubts as to the correctness of the approach which appears to be taken by the appellant as to the entity against which relief might be obtained. The contention is, as we understand it, that relief could be obtained by Professor Morris being reinstated with the Health Administration Corporation or some body other than the Area Health Service (or its statutory successor) which employed Professor Morris. We doubt that is possible having regard to the relevant statutory provisions which include ss 16(b), 33 and 115 of the Health Services Act 1997 and s 91(2) of the Industrial Relations Act which, as earlier noted, defines the employer of an injured employee as the person (or body) in the course of employment with whom or which the employee's injury arose. Orders

[78]

93 As reference to the agreed facts above reveals, the nub of the respondents contention before Sams DP and repeated on appeal is relatively straightforward and clear cut. That is, that at the time of his dismissal, Professor Morris was not an injured employee as required by Pt 7 ch 2 of the IR Act, specifically s91(1). 94 That consequence, it was contended, came about because of the specific factual circumstances relating to Professor Morris. Professor Morris was injured in the course of his employment in 1993 when he was struck by a motor vehicle while crossing Missenden Road, Camperdown. The driver of the motor vehicle was a third party unrelated to Professor Morris' place of work. In addition to workers compensation payments to which he was clearly entitled, Professor Morris brought common law proceedings against the driver of the motor vehicle in the Supreme Court of New South Wales. That matter was ultimately settled in 1998. 95 As part of the Terms of Settlement, Professor Morris refunded $82,801.78 to GIO Australia for workers compensation payments he had received with respect to his injury. That was done in August 1998. 96 Payment of common law damages to Professor Morris pursuant to the Terms of Settlement and the repayment by him of workers compensation payments to his employer's insurer invoked the provisions of s151Z(1) of the Workers Compensation Act 1987 (then applying) that provided, inter alia, as follows: (1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: (a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation, (b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker's injury under this Act, and the worker is not entitled to any further compensation . (emphasis added) ... 97 Once Professor Morris settled his common law claim and repaid his workers compensation payments in 1998 as outlined above, he no longer received, nor was he entitled to receive, any further workers compensation payments in relation to the injuries he had received in 1993. 98 On 3 March 1999, Professor Morris' employer, the Central Sydney Area Health Service, terminated his employment. Although it was not a matter expressly agreed between the parties, counsel for the respondent, when pressed on this issue, said: ... from the correspondence I have seen it is difficult to contend Professor Morris' health status was not one of the reasons that had a bearing or is relevant to his termination. That was one of the foundations for his termination. His fitness to work was part of it but it was not adverted to in the agreed statement of facts below. The question seemed to have been left open. 99 In the absence of any other evidence, I am satisfied it is proper to infer that, in March 1999, when Professor Morris was dismissed, it was predominantly because he was still unfit for work as a result of his 1993 injuries. I am strengthened in my view to that effect when it is noted that, as part of the agreed facts, Professor Morris sought reinstatement from the third respondent to his position pursuant to s92 of the IR Act that provides as follows: (1) If an injured employee is dismissed because he or she is not fit for employment as a result of the injury received, the employee may apply to the employer for reinstatement to employment of a kind specified in the application. (2) The kind of employment for which the employee applies for reinstatement cannot be more advantageous to the employee than that in which the employee was engaged when he or she first became unfit for employment because of the injury.

[86]

(h) an employer is guilty of an offence under s99 of the Act if he, she or it dismissed an employee within six months of the employee being not fit for employment as a result of the injury. 102 Overall, it was submitted, although s91(1) of the Act does not expressly state the time when the employee is to be entitled to receive compensation under the workers' compensation legislation, it is clear from the scheme of Pt 7 ch 2 of the IR Act that such time is the time of dismissal. 103 At the time of his dismissal on 3 March 1999, Professor Morris was not entitled to receive compensation under the Workers' Compensation Act (and thus, by virtue of section 2A of the Workers' Compensation Act, the Workplace Injury Management and Workers' Compensation Act 1998) by operation of s151Z(1) of the Workers' Compensation Act. 104 I accept as correct the conclusion of Sams DP on the point as expressed by him at [53] as follows: It could not be disputed that the scheme of Pt 7 ch 2 of the Act is that any entitlement to apply for reinstatement, must be conditional on an 'injured employee' being dismissed. Put another way, an order for reinstatement could not be made if the 'injured employee' had not first been dismissed. It follows that a claimant under Pt 7 ch 2 must be both an 'injured employee' and a dismissed employee. ... 105 The respondents contend it is the temporal component arising by the use of the word 'is' in s91(1) as well as a proper consideration of the objects and purpose of Pt 7 ch 2 of the IR Act that bars Professor Morris from relying on the legislative provisions that Pt 7 ch 2 of the IR Act creates in relation to injured employees. 106 A literal reading of s91(1) as to the definition of injured employee would certainly support the respondents' contention that the word 'is' in s91(1) connotes the present tense. Equally however, the ultimate conclusion requires more than first glance literal considerations. 107 In the first instance, the approach to adopt in relation to the construction of a statute is provided in s33 of the Interpretation Act 1987 (NSW) that provides: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 108 Broadly stated, the underlying purpose and object of the Industrial Relations Act 1996 is to provide a framework for the conduct of industrial relations that is just and fair. Within that framework, Pt 7 ch 2 deals with the protection of injured employees. Again, adopting a broad brush approach, the framework of legislative protection afforded to an injured employee under Pt 7 ch 2 is to put in place a scheme of rights circumscribed by temporal and related considerations. They can be identified as follows: (a) Section 99 of the IR Act (also found within Part 7) is a penalty provision that operates to dissuade employers from dismissing employees at least during the first six months of injury related unfitness for work. So employers are required to relevantly 'support' their injured workers at least for that period of time. (b) Sections 92 and 93 reflect the further legislative view that the imposition of penalties on employers who dismiss injured workers does not provide any benefit to the injured workers and hence bestow a right on such workers to seek reinstatement should they regain complete or partial fitness for work in the two years immediately following their dismissal (i.e. the IR Act provides them with a two year period in which they may recover from an injury that had rendered them unfit at the point of termination); (c) Section 95 of the IR Act, by introducing a 'presumption' that the 'injured employee was dismissed because he or she was not fit for employment as a result of the injury received', highlights the need for relevant injury and unfitness as at the point of dismissal, as does the requirement (in Section 92(3) of the IR Act) that the employee provide a medical certificate demonstrating that the worker is in fact now fit for employment of the kind for which the worker has applied; and (d) The injured worker's rights to take unfair dismissal proceedings pursuant to Part 6 of the IR Act are of no real utility or benefit to that worker because his/her work related unfitness for employment at the point of dismissal will in many, if not most, circumstances not have been resolved within the twenty one day time limit for the lodging of Part 6 proceedings. That is, Part 7 of the IR Act recognises that the unfit employee may well need a substantially longer period of time in which to recover from the effects of a work related injury. 109 The objects and purpose of the current legislative provisions relating to injured employees have their genesis in the Industrial Arbitration Act 1940, specifically amendments introduced in 1987 contained within the Industrial Arbitration (Workers' Compensation) Amendment Act 1987. That legislation was introduced into Parliament with a number of other cognate Bills including the Workers Compensation Bill which became the Workers Compensation Act 1987 (NSW). 110 Section 54 of the Industrial Arbitration (Workers' Compensation) Amendment Act 1987 (NSW) provided for the following definition of an 'injured employee': 'injured employee' means an employee who receives an injury being: (a) an injury within the meaning of the Workers' Compensation Act 1987; or (b) a dust disease for which the employee is entitled to receive compensation under the Workers' Compensation (Dust Diseases) Act 1942. 111 An injury was defined in s4 of the Workers' Compensation Act 1987 to mean a personal injury arising out of or in the course of employment. 112 In his Second Reading Speech for the Workers' Compensation Act 1987 and the Industrial Arbitration (Workers' Compensation) Amendment Act 1987 the Minister referred to the new provisions providing protection to injured employees. He said: 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 a person who has been injured at the workplace than to be dismissed from employment while attempting to recover from injuries (sic). (emphasis added) 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 the 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. 113 Part 7 of ch 3 of the Industrial Relations Act 1991 reproduced the provisions of the Industrial Arbitration Act dealing with the protection of injured employees. In particular, s235(1) of the 1991 Act defined an injured employee as follows: For the purposes of this Part, an 'injured employee' is an employee who: (a) receives an injury within the meaning of the Workers' Compensation Act 1987; or (b) receives an injury (being a dust disease) for which the employee is entitled to receive compensation under the Workers' Compensation (Dust Diseases) Act 1942. 114 The Explanatory Memorandum to the 1991 Act stated that Pt 7 of ch 3 re-enacted provisions designed to protect the employment of employees injured on the job. 115 The provisions for the protection of injured employees are now contained in Pt 7 of ch 2 of the Industrial Relations Act 1996. 116 A slightly different definition of an injured employee was provided in s91(1) of the Act: For the purposes of this Part, an injured employee is an employee who receives an injury for which the employee is entitled to receive compensation under the Workers Compensation Act 1987 or the Workers' Compensation (Dust Diseases) Act 1942. 117 The Explanatory Memorandum to the Act stated that Pt 7 of ch 2 was a re-enactment of the provisions of the 1991 Act designed to protect the employment of employees injured on the job. 118 In the Second Reading Speech delivered in Parliament on 23 November 1995 the Minister noted that Pt 7 of ch 2 carried forward the provisions of the 1991 Act which were designed to provide certain employment security rights for persons who have suffered a work-related injury. The Minister stated: The existing provisions have been the subject of some judicial criticism and the Bill has been redrafted to state more clearly the powers of the Commission in this area and to make some appropriate changes to assist injured workers. The Bill now allows the Commission the discretion to make back payments. This is an appropriate discretionary measure; dismissed injured worker, no less than unfair dismissal applicant, should not be disadvantaged financially and should be encouraged to return to work. There is no ability to order compensation in lieu of reinstatement, the policy objective is the reinstatement of injured workers.

[87]

The Bill adopts a more flexible approach to the kind of employment to which an employee can be reinstated. This will facilitate the laudable aim of the return to work of injured employees - but will be balanced against employer interests as it must be employment which is available and for which the employee is fit. It is not intended that orders would be made for employment that is merely of a token nature and does not involve useful work having regard to the nature of the worker's incapacity, education, skills and work experience. It is intended that the references to dismissal in this part of the Bill dealing with the protection of injured workers be capable of applying to instances of constructive dismissal. 119 Having regard to the legislative history of the current provision, the clearest intention of the legislature to the issue currently before the Commission is that expressed by the Minister when introducing the Industrial Arbitration (Workers' Compensation) Amendment Bill and the Workers' Compensation Bill in 1987. That is that 'workers ... will ... be given protection against unfair dismissal while on workers' compensation'. (emphasis added) 120 Such an approach supports the proposition put forward by the respondent. That is, that an injured employee is entitled to the protection that Pt 7 ch 2 provides as long as he/she has suffered a work related injury for which he/she is entitled to receive workers' compensation at the time of their dismissal. 121 Notwithstanding that and the legislative history detailed above, the written submission of counsel on behalf of the Minister stated: [13] There is nothing in the extrinsic material to the Act to suggest that Parliament intended to narrow the class of persons eligible to seek the protection of Part 7 of Chapter 2 of the Act, from employees who have sustained a workplace injury to employees who are entitled to workers' compensation at the time of the application for such protection. [14] If Parliament had such an intention, there is an expectation that the matter would have been addressed in the Second Reading Speech or the Explanatory Memorandum. This is especially so in the light of the extensive comment that does exist in the Second Reading Speech to the Act about other changes to the relevant provisions. The absence of any reference to a narrowing of eligibility suggests that the different wording adopted was simply a drafting change. 122 I am not persuaded such a conclusion is as obvious as the submission would suggest. There is nothing I can discern in the extrinsic material to the Act over successive amendments that would suggest some change to what would appear to be the intention of the legislature when the injured employee provisions were first inserted into the Industrial Arbitration (Workers' Compensation) Amendment Act 1987. That is, that 'workers ... will ... be given protection against unfair dismissal while on workers compensation'. 123 On behalf of the appellant, attention was drawn to a number of authorities where the proper construction of 'is' within specific legislative provisions has been considered. The appellant submitted there was no temporal element in s91(1) of the IR Act and that the sub-section should be read as 'is entitled to receive compensation at any time'. Alternatively, it was argued, reference to 'is' in the expression 'the employee is entitled to receive compensation' refers to the time when the injury occurred. 124 In Brambles Constructions Pty Limited v Helmers (1966) 114 CLR 213 the High Court considered the proper construction of s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) which was in the following terms: 'Where damage is suffered by any person as a result of a tort ... (c) any tort-feasor liable in respect of the damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise ...' 125 The factual background to the matter before the Court is relevant to the issue ultimately decided. 126 The respondent Mr Helmers had been found liable for damages for injuries occasioned to one of his employees caused by Mr Helmers' negligence. During the course of those proceedings, Mr Helmers served a third party notice on Brambles claiming a contribution pursuant to s5(1)(c). The initial proceedings between the employee and Mr Helmers were commenced within the six year limitation period. However, Mr Helmers' third party notice was served on Brambles outside the six year limitation period relating to the injury grounding the action between the employee and Mr Helmers. Brambles argued that if the employee had sued Brambles at the date the third party was served, the plaintiff would have been out of time. Accordingly, it was said, Brambles was not liable to Mr Helmers for any contribution. 127 In short, the appellant argued that the expression 'if sued' in s5(1)(c) of the relevant statutory provision above must mean 'if sued by the plaintiff' and the question then arose as to whether the third party (in this case Brambles) would have been liable if sued. At the time Mr Helmers claimed a contribution from Brambles, the plaintiff's rights against Brambles were statute barred. Accordingly, it was argued, Brambles was not a tort-feasor as per s5(1)(c) who 'would if sued have been liable'. 128 In dismissing the argument on behalf of Brambles, Barwick CJ said: The Supreme Court of New South Wales has decided, and in my respectful opinion correctly, that the claim of the tort-feasor for contribution is a cause of action apart from and independent of the cause of action which the injured party has or would have had against the tort-feasor from whom contribution is sought, and that the failure of the injured party to take formal steps such as the giving of notice of action to the tort-feasor from whom contribution is sought is an irrelevant circumstance in the action between the one tort-feasor and the other tort-feasor for contribution: Nickels v Parks (3). ...

[88]

In my opinion, there is no need to import into s5(1)(c) any temporal element in this connexion. The effect of s5(1)(c), in my opinion, is that a tort-feasor who has come under an enforceable obligation to pay money for the damage caused by his tortious act may successfully recover contribution from another tort-feasor who has also come under an obligation to pay money in respect of the same damage and he may also recover contribution from any other tort-feasor who, not having been sued by the injured party, had he been sued, would have been found to have caused or contributed to the same damage by a tortious act. It seems to me that there is no need whatever to specify any point of time as at which the expression 'if sued' should be applied. It can be read 'if sued at any time' which, of course, does not import any temporal element into the section. ... 129 As is clearly evident, the factual circumstances as well as the approach taken to the specific provisions of s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 has little if any application to the matter presently under consideration except as a good example of the application of purposive construction to statutory interpretation. 130 In Leonard v Smith and anor (1992) 27 NSWLR 5, Allen J was required to consider, inter alia, the proper approach to s151Z(2) of the Workers' Compensation Act 1987 that provides relevantly: (2) If, in respect of an injury to a worker for which compensation is payable under this Act: (a) the worker takes proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect: (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable; (d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages; ... 131 In relation to the above provisions and particularly paras (a) and (b), his Honour stated at 10-11: The first thing to be noticed is that by par (a) and par (b) there are two conditions each of which must be fulfilled. The first is that 'the worker takes proceedings independently' of the Act 'to recover damages from a person other than the worker's employer'. This simply means the taking of proceedings which do not rely in any way upon the Act. Ordinary proceedings for damages brought against an ordinary tortfeasor or motor accident tortfeasor, other than the employer, are such proceedings. The second condition is that 'the worker also takes or is entitled to take proceedings independently of (the) Act to recover damages from that employer'. Ordinary proceedings for damages against an employer tortfeasor are such proceedings. There is some difficulty with the phrase 'is entitled to take' such proceedings. It has been argued that this expression means that at the time the proceedings are commenced by the tortfeasor other than the employer the worker must have had the right to commence and maintain proceedings against his employer for damages. If because he had not taken some appropriate step to found such proceedings, or had lost through effluxion of time or otherwise the right to sue the employer then, so it has been argued, the condition would not be satisfied. This argument is reminiscent of the argument considered by the High Court in Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 in respect of the similar expression in s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. It is an argument unanimously rejected by the judges who constituted the court for that case and it is no more persuasive in the present case. The expression denotes a worker who by his conduct satisfies any condition precedent to being entitled to sue his employer and who sues at the appropriate time in an appropriate court . There is no temporal connotation linking his entitlement to take proceedings against his employer with the time at which he commences proceedings against the other tortfeasor. 132 In applying the approach enunciated, Allen J noted that the argument before him with respect to para (b) in s151Z(2) of the Workers' Compensation Act was founded on 'the similar expression' found in s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 considered in Brambles v Helmers. Both matters affirmed unequivocally that the legislative provision then under review did not require a temporal connection between the right of a plaintiff to pursue an action against a respondent and that respondent commencing proceedings against a third party for contribution (Brambles v Helmers) or the taking of proceedings by a worker against his employer and any other person (Leonard v Smith). On any view, both matters are distinguishable and do not assist the appellant. 133 In Lapcevic v Collier [2002] NSWCA 300, the Court of Appeal also considered s151Z(2) of the Workers' Compensation Act 1987 but did so within the context of the appellant's point on appeal. That is, the judge's failure at first instance to apply the provisions of s151Z(2) to the calculation of damages. In her judgment, Beazley JA referred to the decision of Allen J in Leonard v Smith in the following context: [50] As the judgment at first instance in this matter demonstrates, the application of s151Z continues to confound those concerned with its operation. Or, as Meagher JA preferred to put it in State of New South Wales v Kennelly (No 1) [2001] NSWCA 71 at para 1: "... anyone who plunges into the murky waters of s151Z of the Workers Compensation Act 1987 (NSW) might well be expected to reach a different destination from other explorers of these waters." [51] The difficulty with the subsection lies in the construction and application of paras (c) and (d). The construction of the subsection was considered by Allen J in Leonard v Smith (1992) 27 NSWLR 5 and applied by this Court in Grljak v Trivan Pty Ltd (1994) 35 NSWLR 82 per Kirby P, Mahoney and Priestley JJA (adopting the reasoning of Cole J at first instance: unreported, Supreme Court of New South Wales, 4 June 1993). 134 Further in her judgment, her Honour refers to a separate argument raised by the respondent. That was that: [65] The respondent raised a quite separate argument namely that s151Z(2) did not apply as the respondent had ceased to be entitled to take proceedings independently of the Act against the employer ... when he elected under the then s 151A of the Act to claim permanent loss compensation. Mr Hislop submitted that, because of the election which the respondent had made, and because of s151D(2) of the Act (which is a limitation provision), he was not entitled to take proceedings independently of the Act to recover damages from Advance. Therefore, he submitted, s151Z(2) did not apply . 135 After referring to State Rail Authority of New South Wales v Barnes [2001] NSWCA 133 and Grljak v Trivan Pty Ltd (In Liq) (1994) 35 NSWLR 82, her Honour rejected the submission that: [68] ... the word "is" in s151Z(2)(b) refers to an existing entitlement to institute proceedings for the recovery of damages should not be accepted. Section 151Z(2) should be read in the light of s151Z(1) which refers to an injury which "was caused under circumstances creating a liability in some person other than the workers' employer to pay damages in respect of the injury" . In s151Z(2) the word "is" refers back to the time when the injury occurred and to the circumstances creating liability to pay damages in respect of such injury. 136 In making the above observation, her Honour was referring to a worker's right to institute proceedings. As her Honour observed, such a right was not confined to an existing entitlement but the expression 'is entitled to take' refers to the time when the injury occurred and liability arose. 137 Such a conclusion seems inevitable to me. Yet it does not mean, in the context in which 'is' is used in s91(1) of Pt 7 ch 2 of the IR Act, that the same or similar conclusion manifests itself. 138 On behalf of the appellant, reference was also made to the decision of the Full Court of the Supreme Court of Queensland in Bergin v White (1956) St R Qd 432. In that matter, the Court was considering, amongst other issues, the construction of s32(3) of the Primary Producers' Organisation and Marketing Acts 1926 to 1951 (Qld). That section provided: The averment on behalf of the Board in any complaint that anything was or is a commodity to which the provisions of this Act are applicable, or was or is such a commodity mentioned or included in any notification, direction, or order, or that any place is a place in Queensland, or that any person is a grower of such commodity or is an authorised agent, shall be sufficient evidence of that fact. 139 Having regard to the above provision and the existing references to 'was or is' contained within the section as well as the italicised 'is' standing alone, Stanley J said: I have italicized the verbs as illustrating the basis of the respondent's argument that the Board cannot aver that a person was a grower, and must aver that he is a grower. A similar point on a similar section was decided by Mann CJ in Taylor v Anstis ([1940] VLR 300). I respectfully agree with his decision that 'is' must be read as including 'was' to achieve the obvious intention of the Legislature. 140 I perceive no assistance to the appellant in the above passage having regard to the legislative provision then being considered and the issues arising in this matter. It is apparent that Bergin v White was considered and dealt with on the basis of the overall legislative framework of the Primary Producers' Organisation and Marketing Acts and the specific wording of s32(3) of that Act. 141 The appellant has also referred to the decision of Dunford J in NRMA Insurance Ltd v Motor Accidents Authority of New South Wales [2004] NSWSC 567 revised. The issue in those proceedings was whether the Motor Accidents Authority of New South Wales (the Authority) had power to undertake a medical assessment and/or issue a Certificate pursuant to ss60 and 61 of the Motor Accidents Compensation Act 1999 (the MAC Act) in respect of a person who is deceased. The person, Mr Michael Bennett, had been injured in a motor vehicle accident in April 2001. In September 2002, he applied to the Authority for an assessment of his whole purpose impairment resulting from the accident. Mr Bennett died in November 2002 before any assessment was carried out. His solicitors requested the Authority to request the assessment proceed on the papers. The Authority resisted that, submitting it was inappropriate to continue with the assessment in view of Mr Bennett's death. 142 In considering the issue, his Honour had regard to s60 of the Motor Accidents Compensation Act 1999 that provides as follows: (1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. (2) Any such certificate as to: (a) whether the degree of permanent impairment of the injured person is greater than 10%, or (b) ... (c) ... is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.

[90]

[20] Similarly, in Logan Park Investments Pty Ltd v Commonwealth Director of Public Prosecutions (1994) 122 FLR 1 at 3 the word "is" in the relevant legislation was construed as meaning "was at the date of the restraining order" and the Court pointed out that there was substantial authority supporting such construction, citing Re M (a minor) [1994] 2 A C 424 and Re D (a minor) [1987] A C 317, and referred to words in the present tense being used without any temporal connotation. [21] In my view, similar considerations apply here. What the assessor is required to assess under s 61(2)(a) is whether the degree of permanent impairment of the injured person is greater than 10 percent. The person is injured once and for all at the time of the accident, so the injury is past; the permanent impairment on the other hand is a continuing static condition, but it is in any case only permanent up until the time of death, whether such death occurs prior to the assessment or many years after it. Accordingly, I consider that the word "is" in s61(2)(a) is not used in a temporal, but rather a narrative sense and should be read as meaning "is or was". 144 Again, it is apparent that his Honour had regard to the factual circumstances and the relevant legislative provision in order to give sensible effect to the date on which an assessment should be made. 145 I have had regard to prior decisions of the Commission where the injured employee provisions of the applicable industrial legislation have been considered. I refer particularly to State Rail Authority of New South Wales v The Honourable Justice Bauer and ors (1994) 55 IR 263; Cansino v South Western Sydney Area Health Service (1999) 130 IR 1 and Warrell v Western Sydney Tiles Pty Limited (2004) NSWIRComm 1089 (20 October 2004) 146 In State Rail Authority the Court of Appeal primarily considered the proper construction and application of the expression 'former position' as it appeared in Part XV of the Industrial Arbitration Act 1940 and s154 in particular, dealing with the protection of injured employees. It does not, in my view, relevantly advance the appellant's primary contentions in this matter. 147 In Cansino, the Full Bench of the Commission was required to consider the statutory framework of Pt 7 ch 2 and in particular, given the facts of the matter before them, to s94 of the IR Act which is included in Pt 7 ch 2. In doing so, the Full Bench stated at 11 as follows: Having regard to those general observations we now turn to an analysis of the provisions of Pt 7 of Ch 2 which are relevant to the determination of these proceedings. It seems to us that those provisions operate in the following way: 148 The Full Bench then went on to identify twenty one provisions that they identified encapsulated Pt 7 ch 2 including: (1) They 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): s91(1). 149 It is clear from a reading of Cansino that the twenty one identified provisions were a summary distilled from an overall consideration of Pt 7 ch 2. The above passage identified by the appellant was not part of any final conclusion of the Full Bench nor was s91(1) and its proper construction an issue in the proceedings. No issue was raised in Cansino on the matter that is fundamental in these proceedings. That is, the need to construe s91(1) and particularly the temporal connection between the dismissal and entitlement to workers compensation. 150 In Warrell v Western Sydney Tiles, McDonald C determined that the applicant's application for reinstatement pursuant to Pt 7 ch 2 of the IR Act must fail as the applicant sought monetary compensation not reinstatement. As McDonald C stated: Accordingly, beacuse the applicant sought an order not available under Part 7, then the applicant's s93 application is not properly grounded and the Commission can no longer consider the s93 application.

[91]

From a reading of s94(4), it is clear that this concept of 'remuneration' is not compensation, but 'back-pay'. This point is made explicit in the Minister's Second Reading Speech: " There is no ability to order compensation in lieu of reinstatement " - (Hansard, page 51). 151 In his decision, McDonald C stated in passing: [20] The Commission notes that in order to entertain a s93 reinstatement order, there are certain statutory prerequisites to be satisfied: · The applicant must be an injured employee, that is, an employee who receives an injury for which the employee is entitled to receive compensation under one of two named pieces of legislation: s91(1). 152 Again, the issue alive in these appeal proceedings was never in issue before McDonald C. His 'note' in passing as set out above is of no assistance in establishing the proper construction of s91(1) as it now presents itself for consideration. 153 In considering all of the above, I accept there are instances in some of the authorities to which I have referred to: (i) read 'is' as 'was'; (ii) interpolate words such as 'at any time' to the use of 'is' where it appears; or (iii) negate the requirement for a temporal connection having regard to the words used in the legislative provision being considered. 154 Notwithstanding such instances, I am not persuaded that this matter is one that calls for any of those conclusions. As is evident, each matter has been considered in light of the prevailing factual circumstances when considered in the context of the specific legislative provision together with the objects and purpose of the legislation under review. As was said in Project Sky Blue v Australian Broadcasting Authority [1998] 194 CLR 355 at [69]: The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole. ' (emphasis added) 155 In my view, Pt 7 ch 2 and s91(1) in particular cannot be viewed in isolation. It imports, by definition, the relevant workers' compensation legislation. In 1998, that was the Workers' Compensation Act 1987 (NSW). Specifically, s151Z(1)(b) of the Act provides explicitly: If the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker's injury under this Act, and the worker is not entitled to any further compensation . (emphasis added) 156 That provision cannot be ignored. It is specifically referred to within the definition of injured employee. If the employee 'is' not entitled to workers compensation, he/she is not an injured employee. In other words, there is a connection between an injured employee's rights to reinstatement and his/her rights to workers compensation entitlements under the relevant workers' compensation legislation. That such a connection is provided for is consistent with the intention expressed when the injured employee provisions were first introduced in the then Industrial Arbitration (Workers' Compensation) Amendment Act of 1987 when the Minister made clear the intention of the legislature was to give an employee 'protection against unfair dismissal while on workers' compensation'. Nothing could be clearer as to the legislature's intention. 157 In my view, to be an injured employee under Pt 7 ch 2 it is necessary to be an employee who receives an injury at work and to also have an existing and present entitlement to workers' compensation under the relevant workers' compensation legislative provisions at the time of dismissal. 158 If there was no such linked requirement between entitlement and dismissal, the employee is given an open-ended right to pursue reinstatement at some future time with a two year time frame simply because the employee, at some time in the past, had had an injury at work with an entitlement to workers' compensation. In my view, that cannot have been the intention of the legislature. The submission of counsel for the respondent expressed the position thus: ... The Part is designed to provide extra protection/benefits for such employees who are, by definition, at that time relevantly unfit/incapacitated for work as a consequence of a work related injury, because of the contemplation or expectation that they may well recover within a further two year period. In other words, is it to be seriously suggested that a worker who suffered a work related injury five or ten years earlier, recovered sufficiently to return to pre-injury or other gainful employment with the employer; and received all relevant 'entitlements' associated with that work related injury could/should nevertheless be able to have the benefit of a two year reinstatement ' window ' post dismissal merely because of that old injury? 159 There is, in my view, considerable force in that submission. To adopt the construction contended for by the appellant by reading the words 'at any time' after 'is' or to construe 'is' as 'was' in s91(1) would render the effect of Pt 7 ch 2 as manifestly absurd in extending reinstatement rights to injured employees in an open-ended way when the provisions of Pt 6 ch 2 for unfair dismissal would be available beyond the temporal considerations that Pt 7 ch 2 provides. Likewise, it seems to me, if one was to adopt the alternative contention of the appellant that the word 'is' in the expression 'is entitled to receive compensation' refers to the time when the injury occurred. 160 Further, it is unclear to me the import of the appellant's submission that work injuries and consequential workers compensation payments are often not static but dynamic and that the approach taken by Sams DP means that an injured worker would have a fluctuating entitlement to making a Pt 7 ch 2 application. It may be that an employee who has had a work related injury returns to work fully recovered but subsequently suffers an aggravation or reoccurrence of the injury. In such a situation, that employee's rights and entitlements to workers compensation would emerge as a new claim as would that employee's rights under Pt 7 ch 2, assuming that a dismissal occurred while the employee was in receipt of further workers compensation entitlements. 161 In other words, to the extent that a reoccurrence or aggravation of a pre-existing injury may be seen in the context of a 'fluctuating' workers compensation entitlement, only adds weight, in my view, to the construction of s91(1) that the respondent contends. There is no absurd or capricious outcome in such an approach. 162 In all the circumstances, I am satisfied that, to enable an employee to rely on the provisions of Pt 2 ch 7 of the IR Act, the definition of injured employee is s91(1) of the IR Act, specifically the word 'is' as it appears in that definition, is to be construed as requiring the existence of a temporal connection between the entitlement to receive workers compensation and the employee's dismissal. 163 In conclusion, the orders I propose are as follows: · Leave to appeal is granted · Appeal dismissed 164 PRESIDENT: The orders of the Full Bench on appeal are therefore as follows: 1. Leave to appeal is granted. 2. Appeal upheld and the decision at first instance is set aside.

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Judgment (93 paragraphs)

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Legislation Cited (6)

Cases Cited (38)