Bindaree Beef Pty Ltd v Riley

[2013] NSWCA 305

Court of Appeal (NSW)|2013-04-09|Before: Bathurst CJ, Beazley P, Basten JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2013-04-09

Before

Bathurst CJ, Beazley P, Basten JA

Catchwords

Pt 8 Workplace Injury Management and Workers Compensation Act 1998, ss 3, 48, 49, 311, 319, 321
(2005) 221 CLR 539 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
(2012) 86 ALJR 1044 Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355
130 IR 1 Chappel v Hart [1998] HCA 55

Source

Original judgment source is linked above.

Catchwords

Pt 8 Workplace Injury Management and Workers Compensation Act 1998, ss 3, 48, 49, 311, 319, 321(2005) 221 CLR 539 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32(2012) 86 ALJR 1044 Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355130 IR 1 Chappel v Hart [1998] HCA 55(1998) 195 CLR 232 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47(1995) 184 CLR 163 Ex parte Parsons(2013) 87 ALJR 588 General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 Henville v Walker [2001] HCA 52(2001) 206 CLR 459 Hollingsworth v Industrial Court of New South Wales [2007] NSWCA 209(2007) 166 IR 192 I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41(2002) 210 CLR 109 Kirk v Industrial Court of New South Wales [2010] HCA 1(2010) 239 CLR 531 Purvis v State of New South Wales [2003] HCA 62(2008) 177 IR 172 Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 Wishart v Fraser [1941] HCA 8

Judgment (15 paragraphs)

[3]

Factual background 3Mr Riley commenced employment as a slicer at the Inverell Abattoir operated by the applicant in November 1997. The work of a slicer involves using a knife to cut the meat from the carcass of animals at the abattoir. The job requires trimming of meat sections thrown onto a table by boners and cutting the trimmed meat to specifications. The trimming and cutting involves the turning over of the meat sections. 4Importantly for the purpose of the present case, part of the work involved reaching across the table to grab a section of meat thrown onto the table by the boner. 5In May 1999, as a result of the physical work involved in carrying out his occupation, Mr Riley experienced arthritic pain and discomfort in his arms and shoulders and lodged a workers compensation claim with the applicant. Between 2001 and 2004 Mr Riley was downgraded to pre-trimming work, although in 2006 he was reclassified to the position of temporary promoted slicer. 6On 24 October 2007 an operation was performed on Mr Riley's left shoulder and on 2 April 2008 an operation was performed on his right shoulder. 7On 15 January 2009 Mr Riley returned to work as a slicer on restricted duties. His hours of work over time increased to seven hours per day as a slicer and one hour a day as a packer. From 28 May 2009 Mr Riley performed his normal pre-injury duties as a slicer. 8Both the applicant and Mr Riley adjusted work practices to enable Mr Riley to carry out his duties as a slicer. To avoid overreaching when a section of meat landed beyond his reach, he asked another slicer to move the meat to him. He described the procedure in cross-examination in the following terms: "Q. You said in paragraph 39 that you've adjusted your lifting technique. Could you describe for me the adjustment to your lifting technique, please?A. I asked the supervisor to get the boners to throw the meat closer to us, I turned a lot better, I used the .. (not transcribable) .. to lift it. Q. Could you show - could you perhaps -A. From there to there. Q. Perhaps if you could put your papers down for a moment, you could stand up and show me what you mean by -A. Well, I'm working like this. I used to turn, pick my meat up, make sure I took the weight from there to there, turn, put it down and done my job. .. (not transcribable) .. Q. So you don't - you say that you don't have to lift your hand above shoulder height for the work?A. No. Q. Perhaps - PERRY: I'm sorry, but the answer was no. I beg your pardon, Commissioner, perhaps - I was just - COMMISSIONER: I took it he meant that's correct. PERRY: Yes, yes, that's so. And I just wanted to put on the transcript what was the exchange between the cross-examination and the witness. When the witness said, 'I'm facing like this', he had two hands in front of him, just about the hip area and facing straight ahead. And then when he said, 'I turn like this', it was a turn, a short turn to the left, and then motioning to pick up something and then turning back to that position straight in front of him. STEWART: That's an accurate description. Q. Could you just stand up again and please show that motion that Mr Perry has just described? And this is the motion, is it, Mr Riley, that is taking the piece of meat for you to then slice, is that correct?A. That is correct. Q. And if you could show me the - and is that what you say is the full extent of the motion required by a slicer doing that job?A. Yes. Q, Do you say that's all that a slicer is required to do? That's the full extent of their motion?A. You pick the meat up whichever way you can, but I make it easy for myself, I have to think all the time. I pick it up, I do the job. Q. Sorry, can you show me how far you would have to extend your arms if the meat wasn't dropped right on your particular tray?Q. Well, if it's dropped too far away, you'd ask another slicer if they'd throw it up and then you wait till a foreman comes along and you ask them to get the boner to throw the meat closer to you. Q. And so what would you describe as too far away?A. About arm's reach. Q. So if it's out of arm's reach, you won't reach for it, is that correct?A. No, I don't. Q. But other slicers would, wouldn't they?A. Not necessarily. Q. But the reason you don't reach for it is because of your shoulders, is that correct?A. No, not necessarily, no. Q. Well, why wouldn't you reach for it?A. Because I like to protect myself as much as I can. Q. Because you're worried about injuring yourself, aren't you?A. No. Q. Of course you are, Mr Riley. The reason that you won't reach that far is because you're worried about injuring yourself, isn't that correct?A. True." 9On 12 January 2009 Mr Riley made a claim for permanent impairment under s 66 and s 67 of the Workers Compensation Act 1987 (the Act). A medical assessment certificate was issued on 23 August 2010 assessing that Mr Riley had a loss of 40% of the efficient use of each of his arms at or above the elbow. 10On 30 September 2010 an agreement was reached whereby the applicant's workers compensation insurer agreed to pay compensation to Mr Riley for the assessed loss of the efficient use of his arms. 11By 18 October 2010 the applicant's Human Resources Manager, Mr Michael Bayes, became aware of the payment in respect of the assessment of Mr Riley's loss of the efficient use of his arms. Following a meeting on that day, Mr Bayes wrote a letter in the following terms to Mr Riley: "We refer to the discussion with Michael Bayes of 18 October 2010. We confirm you allege that you sustained an injury to both arms on 24 May 1999. On 30 September 2010, you received a considerable amount of compensation pursuant to ss 66 and 67 of the Workers Compensation Act, 1987 in respect of a 40% permanent loss of efficient use of both arms at or above the elbow. You have been performing your normal duties as a slicer which involves repetitive use of both arms. On the basis of the findings in the Workers Compensation Commission, continuing to undertake those duties will present as a risk of re-injury. Indeed, you have previously sustained aggravations to that injury. Such a risk potentially places Bindaree Beef Pty Limited in breach of its obligations under the Occupational Health and Safety Act, 2000 (NSW) and this cannot be allowed to continue or to occur in the future. As you may be aware, the Occupational Health & Safety Act, 2000 (NSW) requires the prevention of actual injuries and the risk of injury. Therefore, placing you simply at risk of injury means that Bindaree Beef Pty Limited has breached its obligations under the Act and potentially committed a criminal offence. As we discussed on 18 October 2010, we must consider a number of options with respect to your future employment including, possibly, the termination of your employment. We therefore invite you to attend a meeting on 20 October 2010 to discuss your future employment, whether you are able to perform the inherent requirements of those duties, alternative employment duties and your employment with Bindaree Beef Pty Limited generally, specifically addressing the issues of your current medical restrictions. We wish to make it clear that this process (even if it may result in the termination of your employment) will not in any way affect your entitlement to worker's compensation benefits. You are most welcome to bring a support person to the meeting." 12A further meeting was held on 27 October 2010, following which Mr Riley's employment was terminated. The letter of termination dated 29 October 2010 was in the following terms: "We refer to the meeting held on 27 October 2010.We confirm that in attendance at the meeting were Karen Rogers (AMIEU organiser), Mick Mitchell (AMIEU On-site delegate), and Jock Needer (AMIEU floor delegate) Paul Murray and Michael Bayes. You will recall that in our first meeting we discussed the issues surrounding your ongoing employment including a number of options such as termination of employment and any alternative duties positions that may exist within Bindaree Beef. We then adjourned the meeting to provide both parties with an opportunity to consider the options further. On 27 October 2010 we reconvened the meeting. During the meeting it was agreed that having regard to your 40% permanent loss of efficient use of both arms as determined by the Workers Compensation Commission, the duties we owe under the Occupational Health & Safety Act which relate to the risk of injury and the lack of alternative duties positions that would eliminate any risk of injury in the future, we have no alternative but to bring the employment relationship to a conclusion. Your employment will cease effective from today. We confirm that the cessation of your employment will not affect your entitlements to workers compensation benefits. Your final pay will be calculated and will be deposited in your nominated bank account in the next pay period; a final pay slip setting out your termination payments will be available next Wednesday. We wish you well in the future." 13In an affidavit filed in the first instance proceedings, Mr Bayes stated his reasons for terminating Mr Riley's employment: "29. Following rehabilitation with Interact Injury Management, the applicant was able to return to his pre-injury employment duties as a slicer on or about 28 May 2009. Despite returning to his pre-injury duties, the applicant served medical evidence supporting a claim for permanent impairment compensation pursuant to s 66 and 67 of the Workers Compensation Act, 1987 in respect of a 40% permanent loss of efficient use of both arms at or above the elbow. 30. I am informed and verily believe that a dispute as to his entitlement to permanent impairment compensation arose and the applicant commenced proceedings in the Workers Compensation Commission. The matter ultimately proceeded to an Approved Medical Specialist who examined the applicant and provided a Medical Assessment Certificate as to the degree of permanent impairment. This assessed a 40% permanent loss of efficient use of both arms. 31. Pursuant to s 326 of the Workplace Injury Management and Workers Compensation Act, 1998, the Medical Assessment Certificate is conclusively presumed correct as to the degree of permanent impairment, whether the degree of permanent impairment is ascertainable and whether the impairment is permanent. 32. In my experience in workers compensation matters, very rarely have I seen a worker being assessed as having a 40% permanent loss of efficient use of both arms. When I became aware of the Medical Assessment Certificate conclusions, I was immediately concerned that the applicant would present as an OH&S risk to the respondent. The duties being performed by the applicant were repetitive and heavy in nature. 33. Section 8(1) of the Occupational Health & Safety Act states that an employer must ensure the health, safety and welfare at work of all employees of the employer. This includes eliminating the risk of injury as well as actual injuries. 34. As I have been involved in prosecutions of the Bindaree Beef Group by WorkCover for breaches of the Occupational Health & Safety Act, the fact that the applicant was performing his duties as a slicer caused me most concern as these are repetitive duties which place strain upon both arms and the back. It appeared to me that the applicant could not perform his normal duties as a slicer with such a large permanent impairment without, at the very least, creating a risk of injury which would arguably constitute a breach of the Occupational Health & Safety Act. The penalties under the Occupational Health & Safety Act are large with a maximum of $550,000.00 for a first offence and $825,000.00 in respect of a second offence." 14Mr Bayes was cross-examined as to his reasons for terminating Mr Riley's employment and gave the following evidence: "Q. You would have been, against that background, taking some care to closely monitor his performance, either on your own account or by one of your staff. And when I say would have, did you not do that?A. No, look, it's indifferent. If there had been - there was nothing good and there was nothing bad. We have, as I said, 600 workers there .. They only come to my attention if there is a problem. Q. See, there wasn't a problem was there?A. Not that I was aware of, no. Q. No, And the only problem that arose was when you found out that he got an award for 40% of each arm, is that right?A. That contributed to my previous knowledge, yes. Q. That contributed?A. Yes. Q. To what did you say?A. That contributed to the overall perception that I had over the period of time and that was just another incident which led me to my final conclusion. ... Q. Well, even as late as - even as at January 2009, you said to Mr Loeves, okay, we'll agree to this three month plan, but I can't give any guarantees about the long term?A. I had reservations. Q. Yes. And then you didn't think at that time, you agreed earlier in your evidence, that he would be able to do the three months or get back to the full pre-injury duties in the three months, did you?A. I had reservations, yes. Q. And then he makes it by no May 2009, no problems at all up to October 2010. That's true, isn't it, you've agree with that?A. (No audible reply) Q. You've nodded. And what I want to put to you is that you've seen this letter in the mail, there's 40%, you've seen that as an excuse to be able to hang your hat on to terminate his employment. That's true, isn't it?A. That alone is not the truth. Q. Are you agreeing that that's partly the case?A. That contributed towards my decision, yes." 15In re-examination he stated that the only reason for the dismissal of Mr Riley was the perceived risk of further injury. 16On 31 January 2011 Mr Riley made an application for a reinstatement order under s 242 of the Act. On 23 December 2011 orders were made in the first instance proceedings under s 243(2) of the Act reinstating Mr Riley to his former position and compensating him for loss of income during the period of termination of employment. 17On 11 July 2012 the Full Bench of the Commission dismissed the applicant's appeal.

[4]

The relevant legislation 18Prior to dealing with the Commission's reasoning in the first instance proceedings and the appeal proceedings, it is convenient to set out the relevant provisions of the Act. "241(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(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(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(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."

[5]

The decision in the first instance proceedings 19The Commissioner recognised that it was a precondition to the making of a reinstatement order that the injured worker was dismissed because of unfitness for employment as a result of the injury received. He concluded that the precondition was satisfied. His reasoning was short and to the following effect: "[28] The employer's reliance upon the Occupational, Health and Safety Act Act 2000 ( the O. H. and S. Act) or its predecessors, is misplaced. [29] The employer submitted that the applicant's employment was terminated in order to ensure that there was no risk of re-injury to the applicant. Further, the employer submitted that it acted in accordance with the terms of the O. H and S Act to ensure the applicant's health and safety. [30] The objects of the O. H. & S Act are found in section 3. The objects deal with ensuring, broadly speaking, the health and safety of employees at work and ensuring that safe work practices are in place at the worksite. The O. H. and S Act does not give the employer the power to terminate an employee's employment to ensure that the employee's health and safety is protected. The emphasis and purpose of the O.H. and S Act is to ensure that all efforts are made to keep employees at work and that they have a safe workplace. [31] For the above reasoning, the Commission rejects the employer's reliance on the O. H. and S Act as a justification to terminate the applicant's employment. [32] The Commission now turns to the operation of the Act to deal with the Employer's submission on this threshold issue. [33] It is clear that the applicant's employment was terminated, in part, due to his previous injury. This is so, as the termination letter refers to the risk of injury. [34] The reason for dismissal only has to include the employee's injury, in order for section 241 of the Act to be enlivened. The Commission notes the presumption in section 244 of the Act, as to the reason for dismissal. [35] The Commission finds on the evidence, that the employer has not rebutted the presumption that the applicant was dismissed, in part, at least, due to his injury. [36] For the above reasoning, the Commission finds that the jurisdiction to deal with the section 241 application, has been enlivened."

[6]

The decision in the appeal proceedings 20The Full Bench concluded that the Commissioner did not fall into error in his approach. Although the Full Bench acknowledged that the Commissioner was clearly wrong in stating that for s 243 of the Act to apply the reason for dismissal only has to include the employee's injury, it concluded that the Commissioner's statement was only "a slip or loose language". The reasoning on this point was in the following terms: "[40] The jurisdiction of the Commission under Pt 8 of the WC Act is enlivened if an injured worker is dismissed because he or she is not fit for employment as a result of the injury received: s 241(1) of the WC Act. The appellant relied on what Macdonald C said at [34] of his decision, namely, '[the reason for dismissal only has to include the employee's injury, in order for section 241 of the Act to be enlivened' to submit that the Commissioner did not apply the correct jurisdictional test and, therefore, it was entitled to succeed on this appeal for this reason alone. [41] The Commissioner was clearly wrong in stating that the reason for dismissal only has to include the employee's injury in order for s 241 to apply. If that were the basis upon which the Commissioner proceeded to deal with the application before him the appellant must inevitably succeed in having the first decision overturned. [42] Having read the learned Commissioner's decision as a whole, however, it is apparent he was alive to the fact that what he had to consider was whether Mr Riley was dismissed because he was not fit for employment as a result of the injury he had received for which he was entitled to, and in fact received, compensation under the WC Act from the appellant: see s 240(2) for the definition of 'injured worker'. ... [44] At [56] the Commissioner stated, 'The key issue for the Commission's determination in this matter is the question going to the applicant's fitness for the role.' Finally, the Commissioner found the employee was fit to perform the role of slicer. [45] We can only conclude that what the Commissioner mistakenly observed at [34] was a slip or loose language. It is quite apparent, however, the Commissioner understood that Mr Riley's claim was that he was dismissed because he was not fit for employment as a result of the injury he received and that what the Commissioner had to determine was whether the claim had merit and whether reinstatement should be ordered. [46] The appellant next submitted the Commissioner did not make any finding that Mr Riley was dismissed because he was not fit for employment. Whilst it would clearly have been preferable for the Commissioner to make a positive finding, the inescapable inference to be drawn from the Commissioner's decision is that the Commissioner proceeded on the basis that Mr Riley was dismissed because he was not fit for employment." 21However, the Full Bench did conclude that the Commissioner erred in his application of the presumption: "[49] The presumption in s 244 is that the injured worker was dismissed because he or she was not fit for employment as a result of the injury received. The employer may rebut that presumption if the employer satisfies the Commission that the injury was not a substantial and operative cause of the dismissal of the worker. The test is clearly not whether the worker was dismissed, 'in part', due to his or her injury. In stating the test in this way, the Commissioner erred. ... [87] Turning to the question of whether the Commissioner erred in finding the appellant had not rebutted the presumption in s 244(1), we accept that the Commissioner committed error in the process of arriving at his conclusion the presumption had not been rebutted. What is more, the Commissioner failed to adequately address s 244. Nevertheless, despite these deficiencies, we consider the Commissioner was correct in his conclusion." 22The Full Bench then proceeded to deal with the submission that the presumption in s 244(1) of the Act had been rebutted as the evidence established that Mr Riley had been dismissed for occupational health and safety reasons, not because he was unfit for employment as a result of his injury. The Full Bench held that the question of whether the injury was "not a substantial and operative cause of the dismissal of the worker" posited an objective test. The Full Bench distinguished federal industrial cases which suggested there was no distinction between the "cause of conduct" and the "reason for conduct" in the following terms: "[81] Despite what was said in Barclay and Purvis about the unhelpfulness of drawing distinctions between proximate or immediate reasons for conduct, or between motive, purpose or effect and, in particular, that no distinction is to be drawn between the cause of conduct and the reason for conduct, we do not consider we are able to ignore the words of s 244 and simply adopt the approach of the majority in Barclay, or in the other federal cases based as they were on a search for the 'substantial and operative reason' or 'operative reason' for the impugned conduct. The provisions considered under federal industrial laws were quite different in structure, content and purpose to s 244. [82] Importantly, in s 244(2) the words 'operative cause' are used when the words 'operative reason' would equally have been available to the drafters of the legislation, such words having been the subject of a long line of authority commencing, it seems, with Bowling in 1976. The word 'cause', we think, is interchangeable with the term 'proximate reason' (see Greater Dandenong), which requires a consideration of the objective circumstances that led to the employer dismissing the injured worker and not the employer's subjective reason for so doing. In our opinion, the test to be applied under s 244(2) is an objective one. [83] Thus, under s 244(2) in seeking to rebut the presumption in s 244(1), the employer must prove two things: first that the injury was not a substantial cause of dismissing the worker. If there were more than one cause of the employer's decision to dismiss the worker, which included the injury, provided the employer could prove the injury was not a substantial cause it would have satisfied one element of the test. The second element of the test to be satisfied is that the injury was not an operative cause of the dismissal. In satisfying that test the employer's subjective intention is not relevant. The employer must satisfy the Commission, on an objective analysis of all of the circumstances, that the injury was not the operative (or real or effective) cause (or proximate reason) of its decision to dismiss the worker. There must be a substantial causal connection between the injury and the decision to dismiss." 23The Full Bench concluded that the presumption had not been rebutted: "[90] Mr Riley deposed to what was said at the meetings on 18 October and 20 October 2010. In the first of the meetings, he refers to Mr Bayes saying that: I've been talking to Terry about his 40% loss of use of the shoulders, no one can work with that amount of loss and pain. It would be difficult even if the loss was 10% - 15% ... I am sending Terry home on full pay until we get time to organize it, I am sure Terry will want to seek legal advice and we will to (sic).' (emphasis added) [91] Mr Bayes deposed to the following: When I became aware of the medical assessment certificate conclusion, I was immediately concerned that the Applicant would present as an OH&S risk ... the duties being performed ... were repetitive and heavy in nature ... the fact that the Applicant was performing his duties as a slicer caused me most concern as these are repetitive duties which place strain upon both arms and the back ... It appeared to me that the Applicant could not perform his normal duties as a slicer with such a large permanent impairment without ... creating a risk of injury which would arguably constitute a breach ...' (emphasis added) [92] As we have noted, the appellant submitted Mr Riley was dismissed not because of his injury, but because of the risk of re-injury or further injury and the appellant's occupational health and safety obligations and potential liabilities. However, it seems plain enough that Mr Bayes was concerned that Mr Riley could not perform the inherent requirement of the job of slicer because of restrictions caused by his injury and because of his 'large permanent impairment'. [93] There would have been no dismissal but for the injury; the evidence is clear that the injury was central to the appellant's decision to dismiss. The appellant would not have even contemplated dismissal if Mr Riley had not received the injury to his shoulders resulting in less efficient use of his arms. Any concern about re-injury would not have materialised if it were not for the injury; the concern about re-injury was merely derivative. [94] The appellant sought to distinguish between the aggravation of an existing injury (which is defined as 'injury' under the WC Act: see s 4) and a re-injury. To aggravate an injury is to make the injury worse. To suffer a re-injury is to have the injury recur. In this case, the distinction is more illusory than real. It was undoubtedly the case that because of Mr Riley's injury the appellant regarded him as being susceptible to his injury being aggravated and/or that it left him more vulnerable than he otherwise would be to further injury or to the same injury recurring. For these reasons the appellant regarded Mr Riley's health as being at greater risk than if he had not sustained the injury and because of the injury the appellant believed its potential liability under the OHS Act was greater than it otherwise would be. [95] It may be accepted that one of the considerations underpinning the decision to dismiss Mr Riley was the appellant's concern about the risk of re-injury and its occupational health and safety obligations and potential liabilities. But the subjective motive of the appellant is irrelevant. Even if it was relevant and could objectively be regarded as a cause, it is inescapable that Mr Riley's injury was a substantial and operative cause."

[7]

(i) The applicant 24The applicant submitted correctly that having regard to the provisions of s 179 of the Industrial Relations Act 1996, it was necessary for it to establish jurisdictional error on behalf of the Commission. 25The applicant submitted that the question of whether the injured worker was dismissed because he was not fit for employment as a result of the injury received was one of jurisdictional fact. It submitted that the presumption in s 244 of the Act was directed to the reason for the employee's dismissal. It also submitted that the reference to injury in s 244(2) was a shorthand reference to the jurisdictional test contained in s 241, namely, that the worker was dismissed because of unfitness for employment as a result of the injury received. 26The applicant contended that the Commission fell into error in the first instance proceedings because it only applied part of the jurisdictional test. Specifically, the Commission considered whether the worker was dismissed as a result of the injury, but failed to consider whether he or she was dismissed because of unfitness for employment. 27The applicant further submitted that the Commission in the first instance proceedings provided no reason for its conclusion that the applicant had not rebutted the presumption. That was also contended to be an error going to jurisdiction. 28In its written submissions the applicant contended that if jurisdictional error infected the decision in the first instance proceedings, it was unnecessary to consider the decision of the Full Bench. However, ultimately senior counsel for the applicant submitted that there was no reason to grant relief in respect of the first instance proceedings, at least if it was concluded that the Full Bench had also fallen into jurisdictional error. 29The applicant submitted that the Full Bench fell into jurisdictional error in two respects. First, it submitted that in concluding that the Commission in the first instance proceedings proceeded on the basis that Mr Riley was dismissed because he was not fit for employment, the Full Bench relied on disparate parts of the decision which were not directed to the jurisdictional question under s 241 of the Act. 30Second, the applicant submitted that the Full Bench erred in concluding that the words "operative cause" rather than "operative reason" mandated an objective test in assessing whether the presumption in s 244(2) was rebutted and, consequently, that the subjective intention of the employer was irrelevant. It submitted that it was this mistake in the construction of s 244(2) which led the Full Bench to conclude that it was "inescapable that Mr Riley's injury was a substantial and operative cause". In those circumstances, the applicant submitted that the Full Bench failed to correct the jurisdictional error made in the first instance proceedings and, further, in misconstruing s 244(2) misconceived the nature of its own process on appeal and thereby committed jurisdictional error. 31The applicant submitted in reply that Mr Riley was able to perform his normal duties and therefore could not have been dismissed because he was not fit for employment as a result of the injury he had received. It submitted that even if the reference to injury in s 244(2) was not shorthand for "not fit for employment as a result of the injury received", the definition of injury in the Act was "personal injury arising out of or in the course of employment". It submitted that Mr Riley was not dismissed for this reason, but rather, he was dismissed because of the risk of future injury. 32In its submissions in reply, the applicant also expanded on the reasons the Full Bench fell into jurisdictional error. It said that determination of whether the employee was dismissed because of unfitness for employment as a result of the injury received was a precondition to jurisdiction and, in dealing with that jurisdictional fact, the Full Bench applied the wrong test and reached the wrong conclusion. Secondly, it submitted that the Full Bench misconceived its role and duty, misunderstood the nature of its jurisdiction and failed to apply itself to the questions posed by the Act. 33In his submissions at the hearing, senior counsel for the applicant submitted that relief should be granted even if the Court was of the view that the same result would be reached if the correct test were applied. This, it was submitted, was because neither the Full Bench nor the Commissioner correctly analysed the evidence. 34In supplementary submissions the applicant relied on the decision of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044 (Barclay). That case relevantly involved a consideration of s 346 of the Fair Work Act 2009 (Cth), which prohibited a person taking adverse action against another person for reasons including that he or she had engaged in industrial activity. Section 360 of that Act provided that for the relevant part of that Act, "a person takes action for a particular reason if the reasons for the action include that reason". Section 361(1) casts a burden of proof on the employer, relevantly stating, "it is presumed, in proceedings arising from the application, that the action was ... taken for that reason or with that intent, unless the person proves otherwise". 35The High Court rejected a purely objective inquiry and concluded that the relevant question was why the adverse action was taken by the decision-maker: Barclay supra at [44] and [101]. The applicant submitted that the reasoning of the High Court in Barclay was applicable in the present case, notwithstanding the difference in wording in the particular sections. The applicant submitted that the use of the word "because" in s 241 and s 244 of the Act invited attention as to the reasons the decision-maker acted. 36In dealing with the construction of the section, senior counsel for the applicant acknowledged that the presumption in the predecessor to s 244(2), s 238(2) of the Industrial Relations Act 1991, stated that the presumption was rebutted if the employer satisfied the Commission that "the employee was not dismissed for reasons not solely or principally related to the injury". However, senior counsel submitted that the present wording had its genesis in the Industrial Relations Act 1996 and there was nothing in the Second Reading Speech or the Explanatory Memorandum to that Act to suggest that the substitution of the word "cause" for the word "reasons" was intended to effect a fundamental change in the law. 37Senior counsel for the applicant also submitted that the objective test posited by the Full Bench ignored the fact that dismissal can only occur as a result of human action. 38Senior counsel for the applicant further submitted that the injury had to be the operative cause of the dismissal. He pointed out that the injury took place in 1999 and in these circumstances, particularly having regard to the evidence of Mr Bayes, the injury was not an operative cause.

[8]

(ii) The respondent 39In relation to the first ground of appeal, Mr Riley submitted that the Full Bench did not err in its consideration of whether the Commissioner applied the correct test. He submitted that the Full Bench was entitled to look at the whole of the decision to decide whether the Commissioner had correctly concluded that Mr Riley was dismissed because of unfitness for employment. He submitted that even if the Full Bench was incorrect in reaching this conclusion, it was an error within jurisdiction as the Full Bench did not misconceive its appellate function under s 192 of the Industrial Relations Act 1996. 40Mr Riley submitted that the Full Bench correctly interpreted s 241(1) and s 244 of the Act. He pointed to the legislative history of s 244 commencing with s 154E of the Industrial Arbitration Act 1940, inserted into that Act by the Industrial Arbitration (Workers Compensation) Amendment Act 1987, which stated that the presumption would be rebutted if the employer satisfied the tribunal "that the employee was dismissed for reasons not solely or principally related to the injury". As I indicated above, similar wording appeared in s 238 of the Industrial Relations Act 1991. 41Mr Riley submitted that the introduction of the present wording by the Industrial Relations Act 1996 made rebuttal of the presumption more difficult. He pointed to the Second Reading Speech to that Act which stated that the Industrial Relations Act 1991 had been redrafted "to make some appropriate changes to assist injured workers". 42Mr Riley submitted that the word "cause" should be read in light of the legislative history of the Act and also the statement in s 3 of the Workplace Injury Management and Workers Compensation Act 1998 that one of the objects of the compensation system was to promote the return of injured workers to the workplace as soon as possible. He submitted that the word "reason" was replaced with "cause" to provide an objective test to assist those objectives of the Act. 43Mr Riley pointed to the different wording in s 244(1) and s 244(2) of the Act. He submitted that whilst s 244(1) makes it clear that the reason for the dismissal is presumed, the language of s 244(2) is different. He submitted that this was in contrast to the provisions of the Fair Work Act (Cth) considered in cases such as Barclay. In these circumstances, he submitted that the Full Bench was correct in applying an objective test. 44Mr Riley also submitted that if the Full Bench was in error, it was an error which should be classified as within jurisdiction not amounting to a misapprehension of its functions and powers. 45At the hearing, counsel for Mr Riley submitted that as the Full Bench nevertheless took the reasons given for the dismissal into account, even if the Full Bench misapprehended the test, ultimately they did not fall into error and any error was made within jurisdiction.

[9]

(i) The construction of s 244(2) 46The principles of statutory construction to be applied are well established. They were set out most recently in the joint judgment of the High Court in Federal Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 87 ALJR 588 at [47]: "[47] As French CJ, Hayne, Crennan, Bell and Gageler JJ said in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd: 'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text'. Context and purpose are also important. In Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross French CJ and Hayne J said: The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, '[t]he 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' ... That is, statutory construction requires deciding what is the legal meaning of the relevant provision 'by reference to the language of the instrument viewed as a whole', and 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. (emphasis of French CJ and Hayne J)"(Citations omitted) See also Barclay supra at [41]. 47In the present case the purpose of the provisions of Pt 8 of the Act is relatively clear. It is to provide a mechanism to assist an injured worker to return to work either in his or her previous position or such other position for which he or she is fit. 48Thus, s 241(1) enables the worker if dismissed because of unfitness for employment as a result of the injury received, to apply to the employer for reinstatement. Section 242 entitles the worker if not reinstated by his or her employer, to apply to the Commission for a reinstatement order. 49Section 243 confers power on the Commission to make an order, but only if the Commission is satisfied that the worker is fit for the employment in question. 50The 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. 51It should be noted that the fact that the employer is unable to rebut the presumption is not of itself sufficient to enable the worker to be reinstated. It remains necessary for the worker to satisfy the Commission as to fitness under s 243(2). The Commission has power under s 245 of the Act to order a medical assessment to assist in its determination. 52The 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. 53Neither 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. 54I 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. 55I have set out the history of the legislation in dealing with the parties' submissions at pars [36], [40]-[42] above. I agree with the submissions of Mr Riley that the purpose of the change in wording was to assist injured workers. However, that assistance, in my opinion, was rendered by the replacement of the words "not solely or principally related" with "substantial and operative". Those words did make it more difficult for the employer to rebut the presumption. However, in my opinion the use of the word "cause" does not render irrelevant the actual reasons for the decision-maker dismissing the worker. The expressed reasons of the decision-maker must of course be evaluated in light of the actual circumstances surrounding the dismissal. 56The difference in wording in s 244(1) and s 244(2) in my opinion does not affect the position. Section 244(1) states the presumption. To rebut the presumption the employer has to establish that the injury was not a substantial and operative cause of dismissal. The question of fitness for employment is irrelevant to that inquiry. If the presumption is not rebutted then the question of fitness for employment arises under s 243(2), as it is a precondition for the making of an order under that section that the Commission is satisfied that the worker is fit for employment. 57It follows that I do not agree with the applicant's submission that the word injury is merely shorthand for unfitness for employment as a result of the injury. The provisions operate harmoniously giving the subsections their literal meaning. 58I also do not agree with the Full Bench that the word operative is superfluous in the section. Section 244(2) recognises that there could be more than one cause for the dismissal. The presumption will be rebutted if it is shown that the injury is not a substantial cause and one that is operative on the decision-maker at the relevant time. In General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605, the respondent was alleged to have been dismissed by reason of him being a delegate of an industrial organisation. Such a dismissal was an offence under s 5(1) of the Conciliation and Arbitration Act 1904 (Cth). Section 5(4) of that Act provided as follows: "In any proceeding for an offence against this section, if all the facts and circumstances constituting the offence, other than the reason for the defendant's action, are proved it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge." 59Mason J (as his Honour then was) with whom Stephen and Jacobs JJ agreed, described the operation of the section in the following terms at 616: " ... The importance which s 9 of the Conciliation and Arbitration Act 1904-1915 (the ancestor of the present s 5) then had may be ascertained from the dissenting judgment of Isaacs J in Pearce v W D Peacock & Co Ltd (1917) 23 CLR 199 at 205, where his Honour said of s 9: '... it is designed, among other things, to preserve organizations, so that the method selected by Parliament for setting disputes shall not be thwarted. The provision casting the onus on the defendant employer means that the fact that the dismissed employee was a member of an organization must not enter in any way into the reason of the defendant ...' The majority decided for the employer because there was evidence to support the magistrate's finding that the employer was not actuated by the reason alleged in the charge. The protection of trade unions and their representatives from discrimination and victimization by employers does not require an interpretation as extreme as that favoured by Isaacs J. It would unduly and unfairly inhibit the dismissal of a union representative in circumstances where other employees would be dismissed and thereby confer on the union representative an advantage not enjoyed by other workers, to penalize a dismissal merely because the prohibited factor entered into the employer's reasons for dismissal though it was not a substantial and operative factor in those reasons. The Australian Industrial Court did not apply Isaacs J's interpretation. In the light of what was said by Barwick CJ and Walsh J in connection with the words 'for the reason that' in s 66b(2)(d) of the Trade Practices Act 1965-1971 in Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617 at 634-5 and 646; [1972-73] ALR 921 at 929-30 and 937, the Industrial Court has held (see Roberts v General Motors-Holden's Inc (1975) 30 IIB 2085) that an employer is actuated by a particular reason or circumstance, if that reason or circumstance was 'a substantial and operative factor' influencing him to take that action. The Industrial Court has thereby rejected, rightly in my opinion, the notion that sub-s (1) is speaking of the sole or predominant reason actuating the employer." 60The words substantial and operative used by Mason J 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. 61What I have said, in my opinion, is consistent with authority. As has been stated in a number of cases, any inquiry as to causation has to be undertaken by reference to the purpose of the inquiry: Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 at [63]; Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 at [98]; Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 at [50]-[58]; I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109 at [56]. The inquiry in the present case is directed to the reason for the dismissal of the worker for the purpose of considering whether he or she has a valid claim for reinstatement. Once that is recognised the actuating purpose of the employer is relevant. 62In Barclay the High Court adopted the same approach. Although, as I have indicated, the wording of the sections in question was different, the following comments of French CJ and Crennan J in Barclay are apposite to the present case: "[43] Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action. The majority in the Full Court correctly rejected an argument put by the respondents that the introduction of the statutory expression 'because' into a legislative predecessor to s 346, in place of the previous statutory expression 'by reason of', rendered irrelevant the state of mind of the decision-maker. [44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression 'because' in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains 'why was the adverse action taken?'. [45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity."

[10]

(ii) Did the Full Bench fall into jurisdictional error? 63The Full Bench was in error in stating that the test was objective. However, in reaching its conclusion that the presumption had not been rebutted, the Full Bench in fact focused on the evidence of Mr Bayes. Importantly in par [95] of the decision in the appeal proceedings, whilst stating the subjective reasons of the applicant were irrelevant, the Full Bench concluded that even if they were relevant the same conclusion would be reached. The Commission thus effectively considered the result that would be obtained if its construction of the subsection was incorrect. 64To the extent, as the applicant contended, that the question of whether the employee was dismissed because of unfitness for work as a result of the injury was one of jurisdictional fact, the Full Bench did not err in holding that the presumption in s 244(2) was not rebutted so that the precondition to jurisdiction was made out. The risk of re-injury and the consequential occupation health and safety risks which were the concern of Mr Bayes arose directly from the injury which caused the 40% loss of efficient use in both arms. Mr Bayes put the position succinctly in par [34] of his affidavit, to which I have referred in par [13] above, when he said "It appeared to me that the applicant could not perform his normal duties as a slicer with such a large permanent impairment without, at the very least, creating a risk of injury". The injury and the impairment resulting from it were the matters which actuated the decision to terminate Mr Riley's employment. In these circumstances, the applicant did not show that the injury was not a substantial and operative cause of the dismissal. 65That is not to say that the occupational health and safety risks referred to by Mr Bayes as his reasons for dismissing Mr Riley are irrelevant to the questions of potential reinstatement. The fact that the presumption in s 244(1) of the Act is satisfied does not of itself lead to the conclusion that the injured worker was fit for the kind of employment in which he or she was engaged at the time of dismissal. It remains for the Commission to consider in the exercise of its jurisdiction under s243(2) whether the worker is fit for the kind of employment in question. In considering this question the Commission would, in my opinion, be required to take into account the question of whether or not the worker could safely perform that type of employment. Failure to do so, in my opinion, would constitute error. As it has not been suggested that the Commission in exercising its jurisdiction under s 243(2) failed to consider this issue, it is not necessary to consider whether such a failure would amount to jurisdictional error. 66Nor do I believe the Full Bench misunderstood the nature of its jurisdiction, misconceived its duty or misunderstood the nature of the opinion it was to form: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [31]. The Full Bench exercised its powers on appeal under s 192 of the Industrial Relations Act 1996, identified error and, having regard to the approach it adopted, confirmed the decision of the Commissioner. 67Nor do I think that the error of law made amounted to jurisdictional error. It is correct that the Full Bench misconceived the relevant statute, however, in the result it did not lead to a misconception of the nature of its functions or the extent of its powers: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 177-178; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at 574. The effect of its conclusion was that even if the correct test was applied the same result would have been reached. It follows in my opinion that there was no jurisdictional error. 68In these circumstances it is unnecessary to consider whether the Commission fell into jurisdictional error in the first instance proceedings. Any such error was corrected by the Full Bench in the exercise of its appellate powers under s 192 of the Industrial Relations Act 1996: TD Preece & Co Pty Ltd v Industrial Court of New South Wales [2008] NSWCA 285; (2008) 177 IR 172 at [34], [72]. 69Even if there was jurisdictional error in the exercise of discretion I would not have granted relief. Applying the correct test and taking the evidence of Mr Bayes at its highest, the same result would have been reached. There were no further factual issues which would require investigation. The applicant submitted that the appropriate form of relief was to remit the application to the Commission to be decided according to law. For the reasons I have given this would be a pointless exercise. 70It follows that the application should be dismissed with costs. 71BEAZLEY P: I agree with the Chief Justice. 72BASTEN JA: For a number of years, from 1997, Anthony Terrance Riley worked as slicer at the Inverell Abattoir operated by Bindaree Beef Pty Ltd ("the applicant"). The nature and conditions of the work led to Mr Riley suffering injury to both shoulders. In October 2010 the Workers Compensation Commission determined that he suffered a 40% permanent impairment of each arm, entitling him to lump sum compensation under s 66 of the Workers Compensation Act 1987 (NSW). Following operations on both shoulders he returned to his position as slicer in the boning room at the abattoir. 73On 29 October 2010 the applicant terminated Mr Riley's employment. The letter of termination stated that "having regard to your 40% permanent loss of efficient use of both arms as determined by the Workers Compensation Commission, the duties we owe under the Occupational Health & Safety Act which relate to the risk of injury and the lack of alternative duties positions that would eliminate any risk of injury in the future, we have no alternative but to bring the employment relationship to a conclusion". 74On 31 January 2011, the Australasian Meat Industry Employees' Union filed proceedings in the Industrial Relations Commission pursuant to s 242 of the Workers Compensation Act, seeking Mr Riley's reinstatement as a slicer at the abattoir. On 23 December 2011, Commissioner MacDonald made such an order: Riley and Bindaree Beef Pty Ltd [2011] NSWIRComm 1057. An appeal by the applicant was dismissed by a Full Bench of the Commission on 11 July 2012: Bindaree Beef Pty Ltd v The Australasian Meat Industry Employees' Union, Newcastle and Northern Branch on behalf of Riley [2012] NSWIRComm 74. There is no right of appeal from that decision, but the applicant sought a quashing order in this Court, pursuant to s 69 of the Supreme Court Act 1970 (NSW). It sought to challenge the orders made both by the Commissioner and by the Full Bench. By an amended summons Mr Riley was substituted for the Union as the first respondent. For the reasons given below, the Full Bench failed to exercise its appellate function according to law and its decision should be set aside.

[11]

Statutory scheme 75Provisions with respect to "protection of injured workers from dismissal" are found in Part 8 of the Workers Compensation Act. The relevant statutory provisions have been set out in full by the Chief Justice. Their history, since their introduction into the Industrial Arbitration Act 1940 (NSW) in 1987, is recounted in Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355; 130 IR 1. An "injured worker" is a worker who "receives an injury for which the worker is entitled to receive compensation under this Act...": s 240(2). There was no dispute that Mr Riley was an injured worker. 76The first step to be taken by an injured worker seeking reinstatement is to apply to the employer for reinstatement of a specified kind: s 241(1). That step is available to a worker who is "dismissed because he or she is not fit for employment as a result of the injury received": s 241(1). If the employer does not reinstate the worker immediately, the worker may apply to the Industrial Relations Commission for a reinstatement order: s 242(1). The Commission may make such an order, "but only if the Commission is satisfied that the worker is fit for that kind of employment": s 243(2). 77Decisions of the Commission are protected by a privative clause which provides that any decision is "final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal": Industrial Relations Act 1996 (NSW), s 179(1). The protection extends to decisions of the Commission on an issue of jurisdiction, but not to "any such purported decision of ... the Full Bench of the Commission in Court Session": s 179(4)(a). It is established that s 179 does not preclude review by this Court for jurisdictional error: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531. 78The applicant did not challenge the finding of the Commission that Mr Riley was fit for employment as a slicer in the boning room of the abattoir. Rather, the error alleged in the finding of the Commission was that Mr Riley had been dismissed because he was "not fit for employment as a result of the injury received". 79It was accepted by both parties that this test needed to be satisfied to engage the jurisdiction of the Commission. No such requirement appears from s 243 of the Workers Compensation Act, which does not use this language. The precondition is imposed by s 241, with respect to an application by the injured worker to the employer. The statutory implication is that the worker must establish that he or she satisfied the requirements of s 241 in order to reach the second stage of an application to the Commission. That the precondition is to be implied is confirmed by s 244 which states: 244 Presumption as to reason for dismissal (1) In proceedings for a reinstatement order under this Part it is to be presumed that the injured worker was dismissed because he or she was not fit for employment as a result of the injury received. (2) That presumption is rebutted if the employer satisfies the Industrial Relations Commission that the injury was not a substantial and operative cause of the dismissal of the worker. 80The presumption is a composite clause, in the same terms as the precondition for application to the employer for reinstatement in s 241(1). The question at the heart of these proceedings arose from the form of the rebuttal permitted under s 244(2). The applicant contended that the reference to "the injury" in s 244(2) was "shorthand" to refer to the whole of the composite clause, "not fit for employment as a result of the injury received". It will be necessary to return to that point of construction shortly. 81These provisions complement the reciprocal obligations of the worker to make "all reasonable efforts to return to work with his or her pre-injury employer" and of the employer to provide suitable employment: Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 48 (since substituted) and 49. The latter section provided: 49 Employer must provide suitable work (1) If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work ..., the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker. ... (3) This section does not apply if: (a) it is not reasonably practicable to provide employment in accordance with this section, or (b) the worker voluntarily left the employment of that employer after the injury happened (whether before or after the commencement of the incapacity for work), or (c) the employer terminated the worker's employment after the injury happened, other than for the reason that the worker was not fit for employment as a result of the injury. Note. See also Part 7 Chapter 2 of the Industrial Relations Act 1996 for provisions for protection of employment of injured workers. 82The exception to the employer's obligation in s 49(3)(c) is the obverse of the composite precondition to a worker's reinstatement application in s 241(1). (A penalty has since been added for breach of subs (1), but the note has not been amended to take account of the transfer in 2006 of the protection provisions to Pt 8 of the Workers Compensation Act.)

[12]

Proceedings in Commission 83In this Court the applicant eschewed any argument that the fitness of the worker or the cause of his dismissal constituted a "jurisdictional fact", as to which the determination by the Commission was not final: Tcpt, 9/04/13, p 10(15). It accepted that, to succeed, it needed to establish that the Commission had committed jurisdictional error in its construction of the legislative scheme, thereby misunderstanding the exercise which it was required to undertake. 84The submissions tended to focus upon the decision of the Commissioner at first instance, asserting error on his part which the Full Bench had not recognised and rejected. The error complained of appeared in the conclusion of the Commissioner with respect to the composite precondition enlivening the jurisdiction of the Commission. The Commissioner stated: "34 The reason for dismissal only has to include the employee's injury, in order for section 241 of the Act to be enlivened. The Commission notes the presumption in section 244 of the Act, as to the reason for dismissal. 35 The Commission finds on the evidence, that the employer has not rebutted the presumption that the applicant was dismissed, in part, at least, due to his injury." 85The error relied upon by the applicant in this statement was the failure to refer to the other limb of the composite condition, namely not being fit for employment. 86Full Bench held at [42]: "Having read the learned Commissioner's decision as a whole, however, it is apparent he was alive to the fact that what he had to consider was whether Mr Riley was dismissed because he was not fit for employment as a result of the injury he had received for which he was entitled to, and in fact received, compensation under the WC Act from the appellant: see s 240(2) for the definition of 'injured worker'." 87The Full Bench at [43] noted a reference to both elements of the condition in the Commissioner's summary of the statutory procedure at [49]. 88The applicant's challenge to this approach raised two issues. First, in circumstances where the Full Bench understood and accepted the submission as to error on the part of the Commissioner, did the Full Bench itself commit jurisdictional error by misconstruing the reasoning of the Commissioner, if this Court were to form a different view as to how his reasoning should be understood? Secondly, if the Full Bench in fact addressed the right question, would it matter that the Commissioner had erred? 89The applicant's response to both these questions invoked Kirk and in particular, the relief granted by the High Court, which set aside the decisions of the Industrial Court at first instance and on appeal. However, there were reasons for that which have no application in the present circumstances, namely that the errors relied upon were not considered by the Full Bench and hence not determined by it, leave to appeal having been granted by the Full Bench, but limited to a specific and different question: at [45]. 90In the course of submissions to this Court, the applicant said that the appeal to the Full Bench was an appeal by way of rehearing: Tcpt, 09/04/13, p 13(15). That categorisation may be accepted: Industrial Relations Act, s 191. However, the result of the appeal is that the orders made by the Commissioner have been "superseded by the orders of the [Full Bench] and were no longer operative": Hollingsworth v Industrial Court of New South Wales [2007] NSWCA 209; 166 IR 192 at [6] (Handley AJA, Spigelman CJ and Mason P agreeing) applying Wishart v Fraser [1941] HCA 8; 64 CLR 470; see also Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [9]-[13]. 91It follows that the answer to the first question is not dictated by Kirk, but does not require determination. The answer to the second question is that the Court is not called on to review the decision at first instance unless, having set aside the judgment of the Full Bench for jurisdictional error on its part, it is apparent that there is only one conclusion properly available as a matter of law, which would require that the decision at first instance be set aside. 92Otherwise than in relation to its analysis of the Commissioner's decision, the Full Bench itself erred in its construction of the legislation. In particular, the Full Bench considered that the use of the term "cause" was one which "requires a consideration of the objective circumstances that led to the employer dismissing the injured worker and not the employer's subjective reason for so doing": at [82]. 93Precisely what was intended by this distinction is unclear. Shortly before reaching that conclusion, the Full Bench had referred to an extract from the joint reasons of Gummow, Hayne and Heydon JJ in Purvis v State of New South Wales [2003] HCA 62; 217 CLR 92, discussing whether a person had been discriminated against "because of" a disability, for the purposes of s 5(1) of the Disability Discrimination Act 1992 (Cth). Reference was made to submissions which sought to "draw distinctions between the motive of the discriminator, the purpose of the conduct and the effect of the conduct, and between objective and subjective criteria of operation": at [234]. At [236] the joint reasons stated: "For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed 'because of' disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it 'because of', 'by reason of', that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression 'because of'." 94Different issues can arise in different cases: in some cases the expressed reason for taking particular action may not be the real reason, either because the actor lacked insight into his or her intentions, purposes and motivations, or because the statement of intention cannot be accepted, or because the reason given masks an underlying, unstated, but operative causal factor. Unconscious motivations do not arise in the present case, although they may be significant in cases of racial or gender-based discrimination: see, eg, Purvis at [155]-[164] (McHugh and Kirby JJ, dissenting). This case did not involve any element of unconscious motivation, nor was there any doubt cast on the honesty or reliability of the evidence given for the applicant. However, the issue to be determined was undoubtedly the reason why Mr Riley's employment was terminated by his employer: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 86 ALJR 1044 at [43]-[45] (French CJ and Crennan J), set out at [62] above. The Full Bench was in error to approach the matter on any other basis. 95There remains a question as to what the Full Bench meant in saying that the test was "clearly an objective one": at [86]. Immediately following that statement, the reasoning set out passages from the evidence, including the reason given by the employer in the letter of termination (set out above at [73]), Mr Riley's evidence as to what the applicant's representative (Mr Bayes) said at meetings shortly prior to the termination and what Mr Bayes said in his evidence to the Commission. The Full Bench then stated: "92 As we have noted, the appellant submitted Mr Riley was dismissed not because of his injury, but because of the risk of re-injury or further injury and the appellant's occupational health and safety obligations and potential liabilities. However, it seems plain enough that Mr Bayes was concerned that Mr Riley could not perform the inherent requirement of the job of slicer because of restrictions caused by his injury and because of his 'large permanent impairment'. 93 There would have been no dismissal but for the injury; the evidence is clear that the injury was central to the appellant's decision to dismiss. The appellant would not have even contemplated dismissal if Mr Riley had not received the injury to his shoulders resulting in less efficient use of his arms. Any concern about re-injury would not have materialised if it were not for the injury; the concern about re-injury was merely derivative. ... 95 It may be accepted that one of the considerations underpinning the decision to dismiss Mr Riley was the appellant's concern about the risk of re-injury and its occupational health and safety obligations and potential liabilities. But the subjective motive of the appellant is irrelevant. Even if it was relevant and could objectively be regarded as a cause, it is inescapable that Mr Riley's injury was a substantial and operative cause." 96This reasoning reveals a degree of confusion. It looks to the statements of the employer's representative to identify the injury as a substantial operative cause of the termination of employment, but then dismisses the concerns as to occupational health and safety obligations as a "subjective" motivation, which could be disregarded. The Full Bench did not reject that motivation as untrue or not genuinely held: it rejected it as irrelevant. The question is whether it was entitled to disregard the employer's subjective intention. 97The applicant's case, at least in this Court (and it was not suggested that it was otherwise before the Commission) was that the composite precondition to the exercise of jurisdiction involved two elements, namely (a) that the worker was not fit for employment, and (b) that the cause of the unfitness was the injury. The applicant accepted that the worker was fit for his employment, in the sense that he was physically able to carry out the work (with a degree of accommodation), but only at risk of further aggravation of his injury. It was the obligation of the employer to avoid a risk of aggravating his existing injury which motivated its action. It was on this basis that it sought to treat the reference to "the injury" in s 244(2) as a shorthand for the composite phrase "not fit for employment as a result of the injury". In other words, the applicant said that if it could establish that the termination of the employment, despite being founded on the injury suffered by the worker, did not result from a belief that he was "not fit for employment", it had successfully rebutted the presumption and removed the precondition for the application for reinstatement. 98There is a certain logic to the applicant's position. The precondition to the making of a reinstatement application appears to involve two elements, namely unfitness and the cause of the unfitness, namely the injury. If the employer can demonstrate that unfitness was not an operative reason for the dismissal, then arguably the presumption as to the existence of the precondition should be rebutted. The purpose of the presumption being to place a burden of disproof on the party having primary knowledge of the reasons for the dismissal, rebuttal of either limb of the presumption by that party should suffice to remove the presumption. On that approach, it is logical to treat the reference to "the injury" in s 244(2) as covering both limbs of the composite precondition. 99To assess the strength of the applicant's assertion, it is necessary to consider more closely the elements of a reinstatement application and the purpose of Pt 8 of the Workers Compensation Act.

[13]

Elements of reinstatement application 100The elements of an application under s 241 may be itemised as follows: (a) the applicant (i) was, but no longer is, employed by the respondent; (ii) suffered an injury for which he or she is entitled to recover compensation, and (iii) was dismissed; (b) the basis of dismissal was that he or she was not fit for employment, and (c) the unfitness resulted from the injury for which compensation was payable. 101The scope of the presumption in s 244(1) is by no means clear. If it includes everything which follows the words "presumed that", it arguably covers all of the five elements set out above. On another reading, the presumption merely assumes that the applicant is an injured worker and has been dismissed, with the presumption relating to the reason for dismissal. Unhelpfully, the provisions make no reference to the need for the Commission to be satisfied in relation to the elements of s 241(1) which are held to be a necessary precondition to an application under s 242(1). The only express requirement with respect to an order for reinstatement is that the Commission be satisfied that the worker is "fit for that kind of employment": s 243(2). Somewhat curiously, if there be a dispute as to fitness, the Industrial Relations Commission may refer the dispute to an "approved medical specialist" for assessment pursuant to Ch 7, Pt 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW): Workers Compensation Act, s 245. How those provisions could operate is by no means clear: they deal with disputes between a "claimant" and a person on whom a claim is made: see s 321, definition of medical dispute in s 319. However, a "claimant" in Pt 7 is defined to mean "a claimant for work injury damages": s 311. These provisions do not fit comfortably together. 102The policy underlying Pt 8 is also revealed in part by the creation of an offence for an employer of an injured worker to dismiss the worker "because the worker is not fit for employment as a result of the injury" and within "the relevant period after the worker first became unfit for employment": s 248(1). The relevant period is six months, or any longer period during which the employee is entitled to accident pay: s 248(2). The employer has two defences: the first is that the worker would not undergo a medical examination reasonably required to determine his or her fitness; the second is belief on reasonable grounds that the worker was not "an injured worker": s 248(3). There is also a reverse onus provision in s 248(4), namely: "The prosecution may establish that an injured worker was dismissed because the worker 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." 103The presently relevant issue may be formulated in the following way: is the protection against dismissal provided for workers who have suffered a compensable injury, or for workers who have been dismissed because their employer considers them unfit for employment, because of a compensable injury? The answer is by no means self-evident. 104Although the protective provisions have existed in this jurisdiction for over 30 years, there is a paucity of authority with respect to this issue. One case which bears similarities to the present was the decision of Deputy President Sams in Construction, Forestry, Mining and Energy Union (New South Wales Branch) on behalf of Scott Anthony Elwell and Cobar Mining Services Pty Ltd [2004] NSWIRComm 32 ("Elwell"). Mr Elwell was injured in an incident on 19 December 2002. For a little over a year he was certified unfit for work, but then returned to work on restricted duties. On 7 April 2003 he was certified fit to return to his normal duties, but was immediately dismissed: at [21]-[22]. The reason given for his dismissal was that, in order to comply with its occupational health and safety obligations, the employer had determined only to allow trades persons or senior apprentices to work on its site and thus the applicant's position as a trades assistant had become redundant: at [74]. It did not challenge the conclusion that he was fit to return to his normal duties. The Commissioner noted the submission that the cause of the dismissal "was not the injury to the applicant or the circumstances surrounding the accident" but rather "the right of an employer to introduce a change in its operations for commercial or business reasons": at [75]. Mr Elwell did not hold trade qualifications, nor was he a senior apprentice. 105In the course of considering the operation of the legislation, the Deputy President noted the common ground between the parties that the applicant was an "injured employee", in the language then adopted in the Industrial Relations Act. He thought that matter needed some explanation, because the applicant had been dismissed after he had been declared fit for work: at [87]. Because the applicant nevertheless continued to receive medical treatment and rehabilitation, he held that the definition was satisfied and the need to consider whether the protective provisions would continue to operate if the entitlement to receive compensation had lapsed did not arise. No equivalent argument was raised in the present case. 106With respect to the presumption, the Deputy President was not satisfied that the injury was not a substantial and operative cause of the applicant's dismissal. He noted the absence of any directive from WorkCover or the Department requiring a ban on non-trades persons working on the site and thought the explanation proffered by the employer was not plausible: at [98]. However, that explanation, if accepted, would have established that the injury was irrelevant to the dismissal. The present contention, that the right to reinstatement was not engaged where the employer accepted that the worker was fit to work, so that no issue of unfitness motivated his dismissal, did not arise. 107The real explanation for the apparent ambiguity in s 244 may lie in an underlying assumption that where the injury was indeed a substantial and operative cause of the dismissal of the worker, it would be because the employer thought that he or she was unfit for the employment in question. Clearly unfitness that resulted from a pre-existing medical condition, not a compensable injury, would not attract protection under this provision, although it might found an order for reinstatement if the termination was "harsh, unjust or unreasonable": see Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; 221 CLR 539. The circumstances in which an employer might concede that the injury was a substantial and operative cause and yet that the reason for dismissal was unrelated to unfitness for employment, might have been unforeseen. That approach would raise two issues in the present case: first, was the reason given by the employer, namely compliance with its obligations under the Occupational Health & Safety Act, distinct and separate from any question of unfitness for employment? Secondly, if so, did the resolution of the employer's dilemma lie in resolving conflicting statutory obligations, rather than adopting a forced construction of one particular legislative provision? In accordance with the analysis suggested by one author, the answer may be found, not at the first interpretive stage of analysis, but at a second, conflict resolution stage: M Leeming, Resolving Conflicts of Laws (2011 Federation Press), p 7. 108The case for the applicant before the Full Bench was not put on the basis that there was a statutory conflict which needed to be resolved. It was, however, put on the basis that the need for the applicant to comply with its obligations under the Occupational Health & Safety Act took its conduct outside the scope of Pt 8. That required the Commission to resolve the tension within s 244. Although the construction of these provisions is a question of law, it is one which might well be left to resolution by the specialist tribunal with experience in industrial matters. As either interpretation is reasonably open, it would not be jurisdictional error for the Commission to chose one construction rather than the other. However, it was a question which the Full Bench simply did not address, determining the matter on the basis that the "subjective intention" of the applicant was irrelevant. That approach was erroneous. 109In these circumstances, there has been a constructive failure of the Commission to exercise its jurisdiction: the decision of the Full Bench should be set aside and the matter remitted to it to be determined according to law.

Bindaree Beef Pty Ltd v Riley

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