Bindaree Beef Pty Ltd v The Australasian Meat Industry Employees' Union, Newcastle and Northern Branch on behalf of Riley

DECISION OF THE COMMISSION 1Anthony Terrance Riley was a slicer employed by the appellant, Bindaree Beef Pty Ltd, at its Inverell Abattoir. The work of a slicer involved taking cuts of meat boned from beef carcasses by a boner and trimming and slicing the meat according to specifications. It is reasonably heavy and repetitive work. 2In 1999 Mr Riley suffered a workplace injury manifested by pain in his arms and shoulders. Mr Riley, however, continued in employment with the appellant albeit on a lesser paid job, but in respect of which make-up pay under the Workers Compensation Act 1987 ("WC Act") was payable. Between 2006 and 2008 Mr Riley underwent surgery in respect of his injury. The surgery involved bilateral shoulder surgery and surgery for carpal tunnel syndrome. He subsequently returned to work in January 2009, commencing on restricted duties. Between April 2009 and September 2010 Mr Riley performed his normal pre-injury duties of a slicer. 3In September 2010, agreement was reached with the appellant's insurer regarding permanent impairment compensation for Mr Riley under ss 66 and 67 of the WC Act in respect of a 40 per cent loss of the efficient use of his left and right arms and pain and suffering. 4In October 2010, the appellant advised Mr Riley of its concern at the risk of Mr Riley re-injuring himself and the liability the appellant might incur as a consequence. Later that month Mr Riley's employment was terminated. 5In January 2011, the Australasian Meat Industry Employees' Union, Newcastle and Northern Branch, on behalf of Mr Riley, made application under s 242 of the WC Act for an order reinstating Mr Riley. In a decision given on 23 December 2011, Macdonald C ordered Mr Riley to be reinstated in the position of slicer and made orders regarding lost remuneration: Riley and Bindaree Beef Pty Ltd [2011] NSWIRComm 1057. 6The appellant now seeks leave to appeal and, if leave is granted, to appeal from the decision and orders of Macdonald C. A stay of the Commissioner's decision was agreed on terms.

Relevant legislation 7The legislation relevant to the appeal is Pt 8 of the WC Act dealing with protection of injured workers, in particular s 241, 243 and 244: 241 Application to employer for reinstatement of dismissed injured worker (1) If an injured worker is dismissed because he or she is not fit for employment as a result of the injury received, the worker may apply to the employer for reinstatement to employment of a kind specified in the application. (2) The kind of employment for which the worker applies for reinstatement cannot be more advantageous to the worker than that in which the worker was engaged when he or she first became unfit for employment because of the injury. (3) The worker must produce to the employer a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement. ... 243 Order by Industrial Relations Commission for reinstatement (1) The Industrial Relations Commission may, on such an application, order the employer to reinstate the worker in accordance with the terms of the order. (2) The Industrial Relations Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), but only if the Commission is satisfied that the worker is fit for that kind of employment. (3) If the employer does not have employment of that kind available, the Industrial Relations Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being: (a) employment of a kind that is available but that is less advantageous to the worker, or (b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation). (4) If the Industrial Relations Commission orders the worker to be reinstated, it may order the employer to pay to the worker an amount stated in the order that does not exceed the remuneration the worker would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission. 244 Presumption as to reason for dismissal (1) In proceedings for a reinstatement order under this Part it is to be presumed that the injured worker was dismissed because he or she was not fit for employment as a result of the injury received. (2) That presumption is rebutted if the employer satisfies the Industrial Relations Commission that the injury was not a substantial and operative cause of the dismissal of the worker.

Decision at first instance 8The proceedings before Macdonald C took place over four days, which included an inspection at the Abattoir at which Mr Riley worked and where the Commissioner viewed the work of a slicer. The Commissioner heard evidence from six witnesses for the respondent and three witnesses for the appellant. The respondent's witnesses were Mr Riley himself, Mr Darren McNaughton and Mr Wayne Mawson, both slicers employed by the appellant, Mr William Sutherland a former employee of the appellant, Dr Marthinus Botes, medical practitioner and Dr Graham Doig, orthopaedic surgeon. Mr Robert Walters, boning room senior supervisor, Mr Michael Bayes, group human resources manager and Ms Catherine Brabrook, occupational therapist, gave evidence for the appellant. 9The Commissioner considered there were five issues he was required to determine: (1) whether the application under s 241(1) of the WC Act for reinstatement was flawed for the reason that Mr Riley was not dismissed on the ground he was not fit for employment as a result of the injury he received; (2) whether employment of the kind for which Mr Riley had applied for reinstatement was available; (3) whether Mr Riley was fit for the kind of employment for which he had applied for reinstatement; (4) whether in the exercise of the Commission's discretion the Commission should order reinstatement; and (5) whether the Commission should make orders for lost remuneration. 10As to the first issue, the appellant had contended before the Commissioner that: (a) The applicant was not dismissed because he was not fit for employment as a result of an injury. Therefore, his application for reinstatement of an injured employee is flawed as it does not satisfy the requirement of section 241(1) of the Act. Proof of that is the termination letter issued by Mr Bayes, wherein the reason for termination is the 40% permanent loss of efficient use of each arm. This gave rise to the risk of re-injury. (b) The reason for termination of the contract of employment goes to the safety of the employee at work and the liability that is afforded to an employer who does not ensure the health, safety and welfare of an employee. Proof of Mr Bayes' concern as to the reason for dismissal, is found in Dr Higg's report and the reliance upon the medical assessment certificate issued pursuant to section 326 of the Workplace Injury Management and Workers Compensation Act 1998. (c) Given that the applicant was not dismissed on the ground that he was not fit for employment, then his application, pursuant to the Act, is flawed and his application should be dismissed. 11Noting the rebuttable presumption in s 244 of the WC Act, Macdonald C found that the appellant's reliance on the Occupational Health and Safety Act 2000 ("OHS Act") was misplaced and that the statute "does not give the employer the power to terminate an employee's employment to ensure that the employee's health and safety is protected." Further, the Commissioner found that it was "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." Further, that: [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. 12As to the second issue, Macdonald C found that on the evidence the "role" of slicer was available. 13As to the third issue, the Commissioner found Mr Riley was fit for the kind of employment of slicer. The considerations that influenced the Commissioner in making this finding were: (a) Mr Riley had been performing the normal work of slicer from May 2009 to October 2010 in circumstances where Mr Bayes conceded that he was not aware of any problem with Mr Riley's performance as a slicer for that period; (b) Mr Riley was dismissed "only when Mr Bayes was alerted to the large insurance payout to the applicant...."; (c) Mr Riley had demonstrated that by adjusting his work methods and taking precautions to avoid the potential for injury, he was able to and did undertake the normal duties of a slicer; (d) the evidence of fellow workers supported Mr Riley's evidence of his capacity to undertake the work of slicer; (e) the fact that Mr Riley had been performing the work of slicer between May 2009 and October 2010 undermined Ms Brabrook's "negative evaluation" of Mr Riley's capacity to perform the work, an evaluation undertaken after Mr Riley had been dismissed. Moreover, Ms Brabrook had never met Mr Riley and had not carried out a formal functional assessment of him. Her negative evaluation was her opinion based on other people's medical and functional assessment opinions. Ms Brabrook was unaware that Mr Riley had been performing his pre-injury duties; (f) Dr. Botes confirmed that Mr Riley was fit for pre-injury duties subject to certain weight lifting restrictions that would not affect his work given the way Mr Riley had adjusted his work methods; (g) Dr. Doig gave evidence that Mr Riley was fit for duty. Dr Doig denied that Mr Riley was likely to suffer re-injury because he had a "spare-part" inserted as part of a shoulder operation and possibly, he said, there was less risk of re-injury; 14As to the fourth issue, having regard to the foregoing considerations, the Commissioner determined that he should exercise his discretion to order the reinstatement of Mr Riley. As to the fifth issue, Macdonald C decided that the period of time for which the lost remuneration order would operate would be from the date Mr Riley made his application to the employer for reinstatement (31 January 2011) to the date of the order for reinstatement (23 December 2011). The Commissioner ordered that any monies should have deducted from them any worker's compensation payments made to Mr Riley in the period from 31 January 2011 to 23 December 2011. 15The orders made by the Commissioner were in the following terms: (1) The Commission orders, pursuant to section 243(2) of the Workers Compensation Act, 1987, that Bindaree Beef Pty. Limited (the employer) reinstate Anthony Riley (the applicant) to employment of a kind, being the position of slicer. (2) The Commission orders pursuant to section 243(4) of the Workers Compensation Act 1987, that the employer pay to the applicant an amount of money being for the period from the date of the making of his application for reinstatement (31 January 2011) to the employer, to the date of this order (23 December 2011) less any amount of money received as payment in respect of workers compensation or derived from alternative employment. (3) The Commission orders that the applicant is to be reinstated to the employment of the kind herein stipulated as soon as practicable, and within twenty-one days from the date of this Decision.

Leave to appeal 16It was asserted the appeal involved issues of principle, questions of public importance, and an injustice which was reasonably clear, that is to say an injustice that goes beyond merely being arguable: Kassem v Colonial Mutual General Insurance Company Limited [2001] NSWCA 38 at [76] per Rolfe AJA. Further, that there would be substantial injustice if leave were not granted, especially where the decision was attended with sufficient doubt to warrant its reconsideration: Adam P Brown Male Fashions Pty Limited v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177; De Mestre v A D Hunter Pty Ltd (1960) 77 WN (NSW) 143 at 146. 17The matters of principle were claimed to be in relation to the rights, duties, obligations, powers and decisions for employers and employees in complying with the Work Health & Safety Act 2011 (successor to the Occupational Health & Safety Act 2000) and the WC Act. It was further asserted the matter provides the Full Bench with the opportunity to consider and determine the test to be applied pursuant to s 244(2) of the WC Act and, in that respect, there had been no Full Bench decision as to the proper interpretation of the term "substantial and operative cause" to which s 244(2) of the WC Act refers. 18In relation to doubt and injustice it was asserted the Commissioner's decision was attended with sufficient doubt and afforded the appellant a significant injustice in circumstances where: (a) the respondent had already suffered significant injuries from the nature and conditions of the slicing job at the appellant, resulting in two surgical interventions with prosthetics being inserted into both shoulders, where the nature and conditions of the job are the same as those that resulted in his injuries; (b) the respondent suffered pain on a regular basis whilst performing the work of a slicer with the appellant; (c) the respondent was determined as having a 40% loss of efficient use of each arm as a result of performing the work of a slicer with the appellant; (d) there was medical evidence that the respondent, because of the state of his injuries, must comply with lifting restrictions in the performance of his work as a slicer with the appellant; and (e) the evidence that the respondent's treating surgeon had not examined him since 2009; his treating doctor advised that the respondent had lifting restrictions; and, neither practitioner had ever observed slicing work in an abattoir. Accordingly, the decision of the Commission at first instance, if it is allowed to stand, compels the appellant to place the respondent at risk of injury in the workplace and for which the appellant is liable. 19The respondent did not oppose leave to appeal in respect of the appellant's jurisdictional ground but otherwise opposed leave on the basis that the other grounds: (a) Relate to a discretionary decision; (b) The decision is not attended by any, or any consequential error; (c) Merely seek to have the Full Bench substitute its own decision on these matters. 20The Full Bench proposes to grant leave in respect of the whole of the appeal. It is clear that the appeal raises matters of such importance that it is in the public interest to grant leave: s 188 of the Industrial Relations Act 1996.

Appeal grounds 21The grounds of appeal fell into four categories. The first concerned the jurisdiction of the Commissioner under the WC Act. The second asserted the Commissioner erred in finding that Mr Riley had produced to the appellant a certificate given by a medical practitioner as to fitness for employment of a kind for which he applied for reinstatement, for the Commission's jurisdiction under s 241 of the WC Act to be enlivened. 22The third ground asserted the Commissioner erred in not properly identifying and determining the nature and conditions of the work of slicer, in not properly identifying and determining the risk of injury and/or re-injury to Mr Riley upon undertaking the work of slicer and in failing to give weight to the evidence regarding the nature of Mr Riley's injury. The fourth ground of appeal was that the Commissioner erred in not correctly interpreting and applying the OHS Act. We shall elaborate on each of the grounds in these reasons.

Respondent's notice of contention 23The respondent filed a notice of contention contending that the Commissioner's decision should be affirmed on grounds other than those relied upon by the Commissioner. However, the respondent did not seek a discharge or variation of any part of the orders made at first instance. The grounds in support of the notice of contention were that: 1.When considering the rebuttal of the presumption contained in s 244(2) of the Workers Compensation Act, 1987 (NSW), the Commissioner ought to have reasoned and found that the Respondent's injury was a substantial and operative cause of the dismissal by the Appellant. 2.The Commissioner ought to have reasoned and found that the medical certificate from Dr Botes, dated 10 November 2010, was to the effect that the Respondent was fit for employment of the kind for which he applied.

Appellant's submissions 24In relation to the appeal ground concerning jurisdiction, the appellant submitted that pursuant to s 241 of the WC Act the injured worker had to be dismissed "because he or she is not fit for employment as a result of the injury received". It followed, it was submitted, that the worker being not fit for employment, had to result from an injury where the worker was entitled to receive compensation under the WC Act: see ss 240 and 241 of the WC Act. 25In the present appeal the appellant submitted there was no issue that Mr Riley was an injured worker within the meaning of s 240 of the WC Act, where he had received an injury for which he was entitled to, and in fact, received compensation under that Act from the appellant. However, Macdonald C determined that the reason for dismissal only had to include the employee's injury, in order for s 241 of the WC Act to be enlivened. In other words, the Commissioner only applied that part of the jurisdictional test, as to the injured worker being dismissed "...as a result of the injury received". The Commissioner failed to apply and consider that part of the test as to the injured worker being dismissed "because he or she is not fit for employment". 26Further, it was submitted the Commissioner did not make any finding that Mr Riley was dismissed because he was not fit for employment; accordingly, no factual finding was made to ground jurisdiction. 27The appellant also contended that the Commissioner erred in holding jurisdiction was enlivened due to the presumption contained in s 244 of the Act, again by applying the wrong test. 28Still on the question of jurisdiction, the appellant observed that it had been contended (in the notice of contention) by the respondent that the Commissioner ought to have reasoned and found that the respondent's injury was a substantial and operative cause of his dismissal in circumstances where the Commissioner had found "that the applicant was dismissed, in part, at least, due to his injury" a finding that was inconsistent with the requirements of s 244(2) of the WC Act. The appellant submitted it was not open to the respondent, by way of the notice of contention, to take this course. It was contrary to s 191 of the IR Act. 29As to the fitness appeal ground, it was submitted Macdonald C erred in failing to find that at the time of the respondent applying for reinstatement to the appellant, there was no medical certificate that was to the effect that Mr Riley was fit for employment for which he applied for reinstatement (i.e., slicer). Further, no compensation could be ordered to be paid given this failing. That is, s 241(3) of the WC Act had not been satisfied. 30In any event, it was submitted it was not open on the medical evidence for the Commissioner to have found that Mr Riley was fit for full duties as a slicer. 31In relation to the third category of appeal grounds concerning the nature of the work, risk and injury, the appellant submitted the Commissioner erred in a number of respects in finding against the weight of evidence and it was not open to find that Mr Riley should be reinstated to the full duties of a slicer. 32In relation to the occupational health and safety appeal grounds the appellant submitted Macdonald C erred in not correctly interpreting and applying the OHS Act.

Submissions for the respondent 33The respondent submitted the relevant issue was whether the appellant satisfied the Commission that "the injury" was not a substantial and operative cause of his dismissal. It was not enough, the respondent submitted, for the appellant, in order to rebut the presumption, to satisfy the Commission that the reason for the dismissal was something other than "because he or she was not fit for employment". The onus was higher. 34The respondent submitted that despite a looseness of language, the Commissioner did apply the relevant test in determining that Mr Riley was dismissed because he was not fit for employment as a result of the injury received and that the appellant failed to rebut that presumption because it did not satisfy the Commission "that the injury was not a substantial and operative cause of the dismissal of the worker." 35Moreover, it was submitted, the evidence was that it was not only the injury itself, but also the respondent's fitness for employment, that caused the dismissal. 36On the fitness issue the respondent submitted the Commissioner did not err in his findings in relation to the medical certificate, dated 10 November 2010, that grounded the application. Alternatively, if there was such an error, it had arisen from a lack of clarity and tidiness in the relevant evidence. Further, if there was any such error, it was not a consequential one because the certificate did comply with s 241(3) of the WC Act. 37In relation to the nature of the work, risk and injury the respondent submitted the relevant issue in this respect was ultimately whether the Commission was satisfied that Mr Riley was fit for the kind of employment for which he applied (s 243(2)) - or alternatively, employment of another kind referred to in s 243(3). The respondent submitted it had proved that Mr Riley was fit for work as a slicer. 38In relation to the occupational health and safety appeal ground, the respondent referred to the appellant's assertion that the Commissioner did not consider a number of aspects of the OHS Act. However, it was submitted, it was not necessary, in order to provide adequate reasons, for the Commissioner to "trail through each of these aspects" and that appeal courts "should avoid overly pernickety examination of the reasons of the Tribunals such as that constituted by the Commissioner." In any event, the Commissioner correctly observed the OHS Act did not contemplate the termination of an employee's employment to ensure that his or her health and safety was protected. 39The respondent submitted the appeal should be dismissed. Alternatively, the appeal should be allowed only insofar as to enable the decision below to be varied in accordance with Grounds 1 and 2 of the Notice of Contention filed for the respondent.

Section 241(1): whether correct test applied 40The 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. 41The 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. 42Having 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". 43The Commissioner understood that Mr Riley had suffered an injury for which he received workers compensation (see [9]-[10] of the first instance decision) and that an issue in the proceedings was whether Mr Riley was fit for employment (see the Commissioner's summary of the arguments at [23]-[25]). The Commissioner also understood that in making a reinstatement order there was a requirement that the employee was fit for the kind of employment that was available or could be made available: see [47] of the first instance decision. Importantly, at [49] the Commissioner noted there was a statutory procedure to be followed by an injured worker seeking a reinstatement order including that: (b) The injured worker was dismissed because he/she was not fit for employment arising out of the workplace injury: Section 241(1). The employer submitted that the applicant was not dismissed on the ground of fitness for employment. The Commission was advised that the reason for dismissal was the risk of injury that might befall the applicant given the 40% loss of efficient use of both arms. 44At [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. 45We 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. 46The 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.

Section 244: whether correct test applied 47The appellant submitted the Commissioner erred in holding jurisdiction was enlivened due to the presumption contained in s 244 of the Act, again by applying the wrong test. In this respect, the appellant referred to what the Commissioner said at [35]: [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. 48It followed from the Commissioner's finding, it was submitted, the appellant had rebutted the presumption that the respondent was dismissed because he was not fit for employment as a result of the injury he had received. 49The 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. 50However, contrary to what the appellant submitted, merely because the Commissioner found Mr Riley was dismissed, in part, due to his injury, it does not necessarily follow that the appellant had rebutted the presumption that Mr Riley was dismissed because he was not fit for employment as a result of the injury he had received. If it followed it would mean that we would have to accept Macdonald C found the appellant had successfully rebutted the presumption for the reason that the employer had discharged the onus of showing the injury was not a substantial and operative cause of the dismissal: s 244. That is clearly not what the Commissioner found: see [35] of the first instance decision. 51It was the appellant's case at first instance that the reason for Mr Riley's dismissal was not that he was not fit for employment as a result of the injuries to his shoulders resulting in a 40 per cent permanent loss of efficient use of each arm. The reason was a concern that he might re-injure himself and others and given the duties imposed on employers under the OHS Act to ensure the safety of employees, it was necessary for the appellant to terminate Mr Riley's employment to avoid the risk of re-injury and a potential breach of the Act. 52Macdonald C found that Mr Riley had been performing the normal work of a slicer between May 2009 and October 2010 without the employer raising any issue about his capacity to do the work. It was only after Mr Bayes received a letter from the appellant's workers compensation insurer, Allianz, on 18 October 2010 about a large payout to Mr Riley for the loss of efficiency in his left and right arms that Mr Bayes raised with Mr Riley a concern about the risk of re-injury and subsequently proceeded to terminate the employment of Mr Riley. 53The Commissioner considered the risk of re-injury and held the employer "did not produce any medically qualified person(s) as witnesses to argue against the applicant's fitness for work or risk of re-injury" (emphasis added): at [95]. Further, the Commissioner was not persuaded by the evidence of Ms Brabrooke (the occupational therapist) that there was a risk of re-injury (at [95]). On the contrary, the Commissioner found the evidence of Dr Botes and Dr Doig as to Mr Riley's fitness "was not undermined through cross-examination - either directly on the issue of his fitness or his fitness through the possibility of re-injury" (emphasis added) (at [98]). Macdonald C noted Dr Doig's denial "that the applicant was likely to suffer re-injury because he had a "spare-part" inserted as part of a shoulder operation and possibly, he said, there was less risk of re-injury." The Commissioner referred approvingly to the evidence regarding Mr Riley's work methods to avoid the risk of re-injury: at [72]-[73]. 54The Commissioner also stated at [82]: [82] As to the risk of re-injury, Dr. Botes agreed that there is such a risk but stated that it did not necessarily follow that the applicant was not fit for work. He elaborated this response to mean that employees have a way of protecting themselves on the job. In respect of the applicant, certain people had been involved in agreeing that he would perform the job in a specific way. By adhering to that advice, the applicant did not injure himself. Dr. Botes went on to say that anybody doing the work at Bindaree Beef had the possibility of injuring themselves, with or without previous injury. 55In the result, the proper inference to be drawn from the Commissioner's decision is that he considered there was at best, a minor risk of re-injury and accordingly, it was appropriate to order reinstatement. If the Commissioner had found there was, to any material degree, a risk of re-injury it is unlikely he would have ordered reinstatement. On the other hand, if the Commissioner had found there was a risk of re-injury it is likely he would have found that the appellant had rebutted the presumption in s 244 because it was the appellant's contention that the shoulder injuries and consequent loss of efficiency in Mr Riley's arms were not a substantial and operative cause of the dismissal of the worker, but rather it was because of a concern of re-injury and the risk that constituted under the OHS Act. It would seem to follow that in finding that Mr Riley was dismissed only "in part" due to his injury and finding that the employer had not rebutted the presumption in s 244, the Commissioner was of the opinion that whilst re-injury may have formed part of the reason for dismissing Mr Riley, the other "part" of the reason was his injury and that the appellant had failed to show this latter "part" was not a substantial and operative cause of the dismissal. 56Of course, none of this answers the question of whether the Commissioner erred in finding that the appellant had not rebutted the presumption that the reason for dismissing Mr Riley was because he was not fit for employment as a result of the injury received. 57It was not in issue that the appellant carried the burden of rebutting the presumption in s 244(1) of the WC Act by having to prove on the balance of probabilities that the injury was not a substantial and operative cause of the dismissal of Mr Riley. 58The phrase "substantial and operative cause" as it appears in s 244(2) of the WC Act has not been the subject of any authoritative decision. The phrase or similar words are used in the criminal law in some jurisdictions in the context of causation: see, for example, R v Smith [1959] 2 QB 35; R v Rudebeck [1999] VSCA 155 at [66]; Hallett [1969] SASR 141 ("operating and substantial cause"). The phrase also appears in the Industrial Relations Act 1996 in the context of freedom of association: see s 210(2). 59In Smith the victim, who had been stabbed by the defendant had been dropped by stretcher bearers and provided with poor medical treatment. It was, nevertheless, held the defendant was guilty because his act was a "substantial and operating cause" of the victim's death. 60Senior counsel for the appellant helpfully referred to Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; (2011) 191 FCR 212 (currently under appeal in the High Court) and Maritime Union of Australia v CSL Australia Pty Limited [2002] FCA 513. In Barclay the Full Court was concerned with, inter alia, s 346, s 360 and s 361(1) of the Fair Work Act 2009 (Cth), which provide: 346. A person must not take adverse action against another person because the other person: (a) is or is not, or was or was not, an officer or member of an industrial association; or (b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b). ... 360. For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason. 361(1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. 61In Barclay, Gray and Bromberg JJ, in allowing the appeal, discussed the test to be applied in determining culpability under s 346: [25] To the extent that the AEU and Mr Barclay contended before the primary judge, and on the appeal, that the introduction of the word "because" had the effect of making irrelevant the state of mind of the person taking the adverse action, that contention must be rejected. [26] As Gummow, Hayne and Heydon JJ said in Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 at [236] of the use of "because" in a similar way to its use in s 346: 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". [27] The central question under s 346 is why was the aggrieved person treated as he or she was? If the aggrieved person was subjected to adverse action, was it "because" the aggrieved person did or did not have the attributes, or had or had not engaged or proposed to engage in the industrial activities, specified by s 346 in conjunction with s 347? [28] The determination of those questions involves characterisation of the reason or reasons of the person who took the adverse action. The state of mind or subjective intention of that person will be centrally relevant, but it is not decisive. What is required is a determination of what Mason J in Bowling (at 617) called the "real reason" for the conduct. The real reason for a person's conduct is not necessarily the reason that the person asserts, even where the person genuinely believes he or she was motivated by that reason. The search is for what actuated the conduct of the person, not for what the person thinks he or she was actuated by. In that regard, the real reason may be conscious or unconscious, and where unconscious or not appreciated or understood, adverse action will not be excused simply because its perpetrator held a benevolent intent. It is not open to the decision-maker to choose to ignore the objective connection between the decision he or she is making and the attribute or activity in question. [29] So much is evident from the use of the word "because". It is also consonant with the objective and protective purposes of s 346. Further, it is consistent with the approach to construction taken in relation to provisions in anti-discrimination legislation where, in a similar context, the word "because" is utilised: see in particular Purvis at [142]-[166] per McHugh and Kirby JJ and at [234]-[236] per Gummow, Hayne and Heydon JJ; and Toben v Jones [2003] FCAFC 137; (2003) 129 FCR 515 at [31] per Carr J, [61]-[63] per Kiefel J and [151] per Allsop J. [30] Section 360 continues the long-standing position that, where adverse action is taken against a protected person, culpability will be established if the reasons for that conduct include a reason for conduct that is within the ambit of s 346. The reason must be an operative or immediate reason and need not be the sole or dominant reason (see the Explanatory Memorandum at para 1458). But the drawing of distinctions between proximate or immediate reasons for conduct (Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349; (2001) 112 FCR 232 at [216]), or between the cause of conduct and the reason for conduct (Greater Dandenong at [164]), is not helpful. Those distinctions fail to give sufficient attention to whether or not the reason was operative, and they also draw distinctions between a reason and a factor in a reason. As Gray J (with whom Woodward and Jenkinson JJ agreed) said in Lewis Construction Co Pty Ltd v Martin (1986) 17 IR 122 at 125: The Act and the authorities do not distinguish between a "reason" and a "factor"; indeed, in Bowling, these terms are used interchangeably. [31] Further, that no distinction is to be drawn between the cause of conduct and the reason for conduct is supported by our earlier conclusion at [24] as to the meaning of "because" and the interchangeable use by the relevant provisions (ss 340, 346 and 360, 361) of cause and reason. [32] The onus cast by s 361 on the person taking the adverse action means that, to succeed, that person has to establish that he or she was not actuated by the attributes or industrial activity which s 346 seeks to protect. As Mason J said in Bowling at 617, that objective will not be achieved unless the evidence establishes that the real reason for the adverse action lies outside the ambit of the provision - in this case s 346. The real reason or reasons for the taking of the adverse action must be shown to be "dissociated from the circumstances" that the aggrieved person has or had the s 346 attribute or has or had engaged in or proposes to engage in the s 346 industrial activity. 62At [74] their Honours stated: [74] If adverse action is taken by an employer in response to conduct of a union, it is impossible for that employer to dissociate or divorce from that conduct its reason for the taking of the adverse action simply by characterising the activity of the union as the activity of its employee. The primary judge failed to approach the matter on the basis that BRIT needed to establish that the real reason for the adverse action taken against Mr Barclay lay outside the ambit of s 346. His Honour did not hold that, in order to succeed, BRIT had to establish by evidence that the real reason or reasons for the conduct taken against Mr Barclay were dissociated from the circumstances that Mr Barclay was an officer of the AEU and had engaged in industrial activity. As we have stated, at [28] above, the search required by s 346 is a search for what actuated the conduct of the person who took adverse action, not for what that person thinks he or she was actuated by. 63Lander J dismissed the appeal. At [199]-[202] his Honour relevantly stated: [199] In the end, the question for the Court is what was the reason for the person to take the adverse action. The subjective intention of the alleged contravenor if accepted by the Court to be the actual intention will be determinative. That construction is consistent with the reasoning of the High Court in Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92. The appellants' argument that the use of the word "because" rather than the expression "for the reason that" as had been used in previous legislation means that the Parliament opted for an objective test rather than a subjective test must be rejected for two reasons. First, because the difference in the words themselves do not have such a result. The use of the word "because" does not bring about the result that the test is objective. An objective test would be simply inconsistent with the Ancillary Rules in Division 7 of the Act and, in particular ss 360, 361 and 362 of the Act. Secondly, the drafter has used the word "because" as a modern form of drafting. [200] The reason for the taking of the adverse action must be one of the matters in both sections before the conduct contravenes either section. The person's reasons for taking the adverse action will engage the sections if those reasons are the proscribed reasons in those sections. [201] The construction of the sections which I favour does not make the sections unworkable. Ordinarily it would be very difficult for a person who is the victim of adverse action to establish the precise reasons why the adverse action was taken against that person. However, as already noted, s 361 reverses the onus of proof and if a person alleges that a person has taken action for a particular reason, and that reason would constitute a contravention, it is presumed that the action was taken for that reason unless the person who took the action proves otherwise. Thus, in this case, it fell upon the respondent and, in particular, Dr Harvey, to satisfy the onus thrust upon the respondent by s 361 to establish the reason or reasons why she took the adverse action which she did. [202] The construction at which I have arrived does not mean that the person who has taken adverse action can simply claim it was taken for a reason apart from a reason in s 340 or s 346 and that that is the end of the matter. The Court will have to be satisfied to the requisite standard that the person claimed he or she took the adverse action for a reason which would not amount to a contravention of the section. In assessing whether or not the persons' evidence ought to be accepted, the Court will no doubt have regard to all of the facts and circumstances surrounding the taking of the adverse action to determine whether or not the reason which is claimed to be the reason for taking the adverse action is truly stated. 64In Maritime Union of Australia v CSL, Branson J discussed the distinction between the operative (or immediate) reason regarding impugned conduct and the cause (or proximate reason) at [54]-[55]: [54] It is difficult, if not impossible, to identify the ratio decidendi of Greater Dandenong. However, two members of the Full Court (Merkel and Finkelstein JJ) concluded that the learned primary judge had erroneously failed to distinguish between the operative (or immediate) reason for the Council's conduct and the cause (or proximate reason) for the Council's conduct. While, as it seems to me, this distinction may in many cases be easier to articulate than to draw, especially in respect of a statutory provision that recognises the possibility of a number of reasons having a causal connection with conduct, I consider that I should be guided by the approach taken by Merkel and Finkelstein JJ who constituted a majority of the Full Court in Greater Dandenong on this issue. I am fortified in my decision to adopt this approach by the fact that the approach appears to me to be consistent with that adopted by R D Nicholson J in MUA v Geraldton (see [43] above). [55] Adopting the approach identified above, I am satisfied that the Company has proved on the balance of probabilities that the operative or immediate reason (or perhaps reasons) for the conduct of the Company with which this proceeding is concerned was Mr Jones' desire that each of the CSL Pacific and CSL Yarra should have the flexibility to trade as part of the CSL International fleet not only on the Australian coast but elsewhere in a cost effective way. I do not doubt, indeed Mr Jones did not deny, that in the process of reaching his decision that the CSL Yarra should be sold and reflagged, he gave consideration to the cost differential between an Australian crew and a foreign crew. As mentioned above, that cost differential flows from the content of the industrial instruments. However, it is necessary for me, as R D Nicolson J pointed out in MUA v Geraldton (see [42] above), to characterise the Company's reasons, which in this case are in reality Mr Jones' reasons. This exercise of characterisation involves, as his Honour observed, questions of judgment. In my judgment, part of the reason (or perhaps one of the reasons) for Mr Jones' decision was the desirability, as he saw it, of the CSL Yarra being able to be used in a cost effective way. I am satisfied that he considered that the freedom to crew the CSL Yarra with a crew which did not enjoy the protection of the industrial instruments would contribute significantly to the cost effective utilisation of the vessel. However, it seems to me that the fact that the crew of the CSL Yarra were entitled to the protection of the industrial instruments, while in part a cause of the decision taken by Mr Jones, was not an operative reason for his decision in the sense identified in [54] above. The relevant operative reason, I find, was the need to be able to utilise the vessel in a cost effective way. 65In referring to these authorities, senior counsel for the appellant seemed to submit that the test to be applied under s 244 was a subjective test, although it is noted in Barclay that whilst the majority said that the state of mind or subjective intention of the person was centrally relevant, it was not decisive. What was required was "a search for what actuated the conduct of the person who took adverse action, not for what that person thinks he or she was actuated by." This would seem to require the application of an objective test, which may or may not take into account the person's state of mind. On the other hand, in Greater Dandenong and in Maritime Union v CSL the approach taken was to consider the operative (or immediate) reason, that is, the employer's subjective reason for engaging in the prejudicial conduct. 66Briefly, and without addressing all of the provisions, the scheme provided by ss 346, 360 and 361 of the Fair Work Act is, firstly, s 346 creates an offence: it provides that a person must not take adverse action against another person because the other person is, inter alia, an officer or member of an industrial association. Section 360 provides that a person takes action for a particular reason if the reasons for the action include that reason. 67Section 361 provides that in an application in relation to a contravention of, inter alia, s 346, it is alleged that a person took action for a particular reason and taking that action for that reason would constitute a contravention (eg., adverse action against another person because the other person is an officer or member of an industrial association), it is presumed, in proceedings arising from the application, that the action was taken for that reason unless the person proves otherwise. 68Section 244(1) of the WC Act, on the other hand, merely creates a presumption that the injured worker was dismissed because he or she was not fit for employment as a result of the injury received. Section 244(2) provides the basis upon which the presumption may be rebutted, namely, "... if the employer satisfies the Industrial Relations Commission that the injury was not a substantial and operative cause of the dismissal of the worker." 69Unlike s 346 or the provisions considered in Greater Dandenong and Maritime Union v CSL, no question arises under s 244(1) as to why the injured worker was dismissed or what was the "real reason" that actuated the employer's conduct in dismissing the worker or whether the "state of mind or subjective intention" of the employer is relevant. Section 244(1) presumes that the injured worker was dismissed because he or she was not fit for employment as a result of the injury received. It seems to us an applicant would need to prove as objective facts, that he or she was an injured worker within the meaning of the WC Act, and that he or she had been dismissed. However, it would be sufficient for the applicant to allege that the dismissal occurred because he or she was not fit for employment as a result of the injury received. The onus would then fall on the respondent employer to rebut that presumption by proving to the Commission's satisfaction that the injury was not a substantial and operative cause of the dismissal of the worker: s 244(2). 70The critical question in s 244(2) is the meaning of "a substantial and operative cause" in the context of the section. 71In General Motors-Holden's Pty Ltd v Bowling (1976) 12 ALR 605 the High Court was concerned with an allegation that a shop steward had been dismissed from his employment for a prohibited reason. Section 5(1) of the Conciliation and Arbitration Act 1904 (Cth) prohibited an employer from dismissing an employee "by reason of the circumstance" that the employee was an officer, delegate or member of an industrial organisation. Mason J concluded (at 616-617) that an employer was actuated by a particular reason or circumstance if that reason or circumstance was "a substantial and operative factor" although not "sole or predominant" influencing him to take that action. Gibbs, Stephen and Jacobs JJ agreed with Mason J's analysis. Barwick CJ dissented. 72As the majority noted in Barclay: [30] As Gray J (with whom Woodward and Jenkinson JJ agreed) said in Lewis Construction Co Pty Ltd v Martin (1986) 17 IR 122 at 125: The Act and the authorities do not distinguish between a "reason" and a "factor"; indeed, in Bowling, these terms are used interchangeably. 73It is of some significance, we think, in considering the meaning of "substantial and operative cause" in s 244(2) of the WC Act that Mason J in Bowling applied the test "substantial and operative factor" (factor being used interchangeably with "reason" and given its usual meaning, "reason" may be capable of being used instead of "cause" subject to the context in which the word is used). 74In Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 Nicholson J considered whether there had been a contravention of s 298K of the Workplace Relations Act 1996 (Cth). As Nicholson J observed at [219]: Section 298K so far as is relevant reads: "(1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) dismiss an employee; (b) injure an employee in his or her employment; (c) alter the position of an employee to the employee's prejudice; (d) refuse to employ another person; (e) ..." It is to be read with s 298L which relevantly provides: "(1) Conduct referred to in subsection 298K(1) ... is for a prohibited reason if it is carried out because the employee, ... or other person concerned: (a) is ... [a] member of an industrial association; or ... ... (h) is entitled to the benefit of an industrial instrument or an order of an industrial body; or ..." Section 298V provides, so far as is relevant: "If: (a) in an application under this Division relating to a person's ... conduct, it is alleged that the conduct was, or is, being carried out for a particular reason ...; and (b) for the person ... to carry out the conduct for that reason ... would constitute a contravention of this Part; it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason ..., unless the person ... proves otherwise." 75After referring to Bowling and the cases that followed that authority, Nicholson J at [224] stated: [224] In my view the words "or for reasons that include a prohibited reason" in s 298K(1) effect a change to the law and permit a reason to be an operative reason provided it is one of the reasons for the conduct. It would not therefore have to be the "substantial" reason. It would have, of course, to be "operative" - that is it would have to be a reason. Section 298L is to be understood subject to that requirement. 76Geraldton was followed in Greater Dandenong, Maritime Union v CSL, Australian Workers' Union v John Holland Pty Ltd (2000) 103 IR 205 and Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19. 77It will obviously depend on the terms of the statute whether a "reason" will need to be "substantial" or not, but the federal cases consistently refer to "operative reason": see for example, AWU v John Holland Pty Ltd [2001] FCA 93; Helal v McConnell Dowell Constructors (Aust) Pty Ltd (No 3) [2011] FCA 1344; McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828; Australian Meat Industry Employees' Union v Belandra Pty Ltd [2003] FCA 910. 78As noted earlier, the meaning of "operative reason" was discussed in Greater Dandenong by both Merkel J and Finkelstein J in the way described by Branson J in Maritime Union v CSL. A distinction was drawn between the "operative (or immediate) reason" of the Council's conduct in that case and the "cause (or proximate reason)" for the Council's conduct. The distinction was further elaborated on by North J in Belandra at [90]-[95]: [90] A distinction between the cause of the situation and the reason for the action was explained by Merkel J and Finkelstein J in Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union (2001) 112 FCR 232; [2001] FCA 349 (Greater Dandenong). The council employed people to provide home and community care services. Legislation was introduced which required a proportion of council expenditure to be the subject of competitive tendering. The council decided to put out to competitive tender the home and community care services. Two bids were received. One was an in-house bid, and the other was from an organisation called Silver Circle. The Silver Circle bid was for $6.6 million and the in-house bid was for $7.7 million. The difference in price was largely accounted for by the fact that the award covering Silver Circle employees provided less pay for the same work than the award covering council employees. The council was aware that if the Silver Circle offer was accepted, the council employees would be made redundant, and they would be engaged, at least initially, by Silver Circle. They would do the same work as before, but would be paid less to do it. The council accepted the Silver Circle tender. The trial judge, and Wilcox J on appeal, held that by accepting the Silver Circle tender, the council altered the position of the employees to their prejudice because they were entitled to the benefit of the award covering council employees. This conduct amounted to a breach of s 298K(1)(c) and s 298L(1)(h). Merkel J did not accept that the employees had established that the higher award entitlements was "an operative reason" for the council's conduct. He said, at par 164: '... the cases demonstrate that s 298K is not concerned with the cause of the prejudicial conduct. Rather, it is concerned with the employer's reason or reasons for engaging in that conduct. Thus, there can be a significant difference between the employer's subjective reason for engaging in prejudicial conduct and the objective circumstances that led to the employer engaging in the conduct.' [91] He continued, at par 167: 'In my view the proper inferences to be drawn from the primary facts found by the primary judge are that an operative reason for the council's resolution to accept Silver Circle's tender was its lower price and that a circumstance that led to it accepting the lower price was the higher Award and Agreement entitlements of the HACC [council] employees. While the higher entitlements may be causally linked to the council's acceptance of the Silver Circle tender, the evidence does not support the primary judge's conclusion that they were an operative reason for the council's acceptance of the tender. No councillor or council document stated that the entitlements were a reason for the council's acceptance. The inference drawn by the primary judge to the contrary was based on an approach that, erroneously, failed to distinguish between the operative reason for the council acting and the circumstances that led to the price of the in-house bid being higher than the price of the Silver Circle bid. The fact that the councillors were aware of, or considered, those circumstances does not make them a reason for their decision. This is not a case of a council not being prepared to pay Award or Agreement entitlements or seeking to discriminate against its employees by reason of those entitlements. Rather, it is a case of a council, that is required by law to engage in a competitive tendering process, accepting the most competitive tender which met the objective criteria it specified.' [emphasis added] [92] Merkel J, however, dismissed the appeal because the council had failed to discharge the onus of showing that the acceptance of the Silver Circle tender was not because of the employees' entitlement to the benefit of an industrial instrument. [93] Finkelstein J would have allowed the appeal, and also made a distinction between the cause of conduct and the reason for conduct. He said at par 199: 'According to these cases, to decide whether an employee has been unlawfully dismissed, it is necessary to ascertain the true motive for, or purpose of, the dismissal. If there is some legitimate reason for the dismissal, such as the desire to avoid bankruptcy or the need to maintain a profitable operation, the dismissal will be lawful. It matters not that the cause of the impending bankruptcy or the unprofitable trading is the high rate of wages payable under an award or certified agreement. That is to say, although the benefits produced by an award or certified agreement have caused the problem which the employer seeks to address, that does not necessarily make those benefits the "reason" or motive for his act.' [emphasis added] [94] He also said, at par 204: 'Thus, there has been an unbroken line of State and federal authority in favour of the proposition that, for the purpose of deciding whether there has been an unlawful dismissal for the reason that an employee is entitled to the benefit of an award or certified agreement, it is necessary to draw a distinction between the "reason" or motive behind the dismissal and what produced that motive.' [emphasis added] [95] And finally, at par 216, his Honour said: 'It seems to me that the trial judge failed to distinguish between the immediate reason for the relevant act, be it the dismissals or the acceptance of the Silver Circle award, and the proximate reason for that act. I can make the point by reference to two sentences in the reasons. The trial judge said: `The major and decisive factor in the Silver Circle bid's acceptance was its price. The major and decisive factor in the difference in price was that, as everyone conceives it, Silver Circle would remunerate the workers doing HACC work under the Silver Circle award and not the council's industrial instruments.' The finding that price was a "major and decisive factor" is plainly correct. To describe the other "major and decisive factor" (that the price difference was the result of different award rates) as a motive for the decision is where the error is to be found. This "major and decisive factor" is not what motivated the decision but merely explains the difference in price.' [emphasis added] 79The distinctions drawn by the majority in Greater Dandenong do not appear to have carried much favour in federal cases dealing with contravention of adverse action and anti-discrimination provisions. In Barclay, the majority observed at [30] that: But the drawing of distinctions between proximate or immediate reasons for conduct (Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 (2001) 112 FCR 232 at [216]), or between the cause of conduct and the reason for conduct (Greater Dandenong at [164]), is not helpful. Those distinctions fail to give sufficient attention to whether or not the reason was operative, and they also draw distinctions between a reason and a factor in a reason. As Gray J (with whom Woodward and Jenkinson JJ agreed) said in Lewis Construction Co Pty Ltd v Martin (1986) 17 IR 122 at 125: The Act and the authorities do not distinguish between a "reason" and a "factor"; indeed, in Bowling, these terms are used interchangeably. 80In Purvis v The State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 the High Court dealt with the construction of s 5(1) of the Disability Discrimination Act 1992 (Cth), which provided that "a person discriminates against another person on the ground of a disability of the aggrieved person if, because of the disability" the person did certain things. In the joint judgment of Gummow, Hayne and Heydon JJ their Honours made certain observations about the issue of whether the appellant had been treated less favourably "because of" his disability. Their Honours said (at [234] and [236]) that: It is, however, desirable to say something shortly about the third issue argued in the appeal: was there less favourable treatment "because of" disability? The arguments about this aspect of s 5(1) 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. Attention was directed to the drafter's use of the expression "by reason of" in the equivalent provisions of the Sex Discrimination Act [144] rather than the expression "because of" used in s 5(1) and other provisions of the Act [145]. Reference was made to s 10 of the Act and its provision that if an act is done for two or more reasons and one of those is the disability of a person "whether or not it is the dominant or a substantial reason for doing the act" then for the purposes of the Act "the act is taken to be done for that reason". ... 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". 81Despite 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. 82Importantly, 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. 83Thus, 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. 84We do wonder whether the word "operative" in s 244(2) is superfluous because if the injury was a substantial cause (that is, a thing that makes something happen) of the dismissal it must be an operative cause. Nevertheless, the statute uses the phrase "substantial and operative cause" and meaning has to be assigned to each word. 85We note that following exchanges with the Bench, whilst senior counsel for the appellant maintained that the test in determining whether the injury was a substantial and operative course was essentially subjective, counsel conceded a substantial or operative reason for the dismissal may comprise a multiplicity of factors. Some of them, it was submitted, were subjective, in the sense they refer to intention; others were objective, in the sense that they refer to ascertainable facts that comprise the context in which the action was taken. 86It was inevitable, in our view, that such a concession had to be made. However, for the reasons we have expressed, we consider the test is clearly an objective one. 87Turning 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. 88The evidence in the proceedings included the letter of 29 October 2010 terminating Mr Riley's employment. The letter read in part: [D]uring 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 duty we owe under the Occupational Health & Safety Act ... and the lack of any 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 ... (emphasis added) 89The foregoing correspondence may be read with an earlier letter from Mr Bayes to Mr Riley of 19 October 2010 in which Mr Riley is invited 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 Ltd generally, specifically addressing the issues of your current medical restrictions ... This process (even if it may result in the termination of your employment, will not in any way affect your entitlement to workers compensation benefits. (emphasis added). 90Mr 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) 91Mr 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) 92As 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". 93There 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. 94The 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. 95It 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. 96The criminal law's treatment of the "substantial and operating cause" test is instructive. The test is an objective one. We mentioned earlier R v Smith. The case was decided on the principle that: [I]f at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound (at 42-43). 97In R v Evans and Gardiner (No 2) [1976] VicRp 53; [1976] VR 523 the victim, a prisoner, was stabbed in the stomach in April 1974 by the two accused and received prompt treatment by way of a bowel resection and the wound healed. However, in March 1975 the victim died as a result of a secondary condition - a stricture in the bowel at the site of the resection operation. 98The Supreme Court of Victoria rejected the submission that the doctor's failure to diagnose the secondary condition made it unsafe for the issue to go to the jury. It held that the real question for the jury was whether the blockage of the bowel was due to the stabbing. The Court held there was sufficient medical evidence for the jury to support such a finding. The Court in Evans stated: The failure of the medical practitioners to diagnose correctly the victim's condition, however inept and unskilful, was not the cause of death and the real question for the jury was whether the blockage was due to the stabbing. 99In R v Blaue [1975] 1 WLR 1411 a young girl was stabbed and her lung pierced. She refused a blood transfusion on religious grounds. She had been told that she would die without a transfusion. She died and the defendant was charged and convicted of murder. The Court of Appeal said: The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death. (at 450) 100Thus, in Smith, Evans and Blaue it was held that the original stabbing injury was a substantial and operating cause of the death in each case and notwithstanding the contribution that the intervening events may have made to the victims' ultimate demise, those events did not break the chain of causation. 101At the time the appellant took the decision to dismiss Mr Riley the original injury continued to be a substantial and operative cause of the decision to dismiss, albeit there were other considerations in the mind of the appellant. These other considerations were either subjective or if they could be considered as objective could not be regarded as "so overwhelming" as to make the original injury merely part of the history such that it could be said the injury was not a substantial and operative cause of the dismissal. To take the analogy with the criminal cases further, it might be said the appellant's reliance on its concern about the risk of re-injury and its occupational health and safety obligations and liabilities did not break the chain of causation between the injury and the dismissal. 102In Bowling, as we earlier noted, the test that was applied was the substantial and operative factor test. In that case the appellant dismissed an employee who was a member and delegate of a union on the basis of the employee's unsatisfactory attitude to work and supervision. Section 5(1) of the Conciliation and Arbitration Act prohibited the appellant from dismissing Bowling by reason of his being a member or delegate of the union. 103After accepting that the principal reason for the employee's dismissal was that he was considered by his employer to "be a trouble maker" by deliberately disrupting production and setting a bad example to others, Mason J stated (at 617 - 618): It is ... a very considerable leap forward to say that this finding in itself is a comprehensive expression of the reasons for dismissal and that they were dissociated from the circumstance that the Respondent was a shop steward. No doubt that is an advance which could be made if officers of the Appellant had said in evidence: "We dismissed him because he was a trouble maker, because he was deliberately disrupting production and setting a bad example and we did so without regard at all to his position as a shop steward", and that evidence had been accepted. Yet this evidence was not given and, even if it had been given, there may have been a question as to it reliability. Once it is said that the Appellant dismissed him because he was deliberately disrupting production and was setting a bad example, it is not easy to say without more that this had nothing to do with his being a shop steward ... (and at 619 - 620) ...We are left then with a reason for the dismissal which does not exclude the possibility that it was associated with the circumstance that the Respondent was a shop steward. If this was no more than a slender possibility, the circumstance might be discarded as one which was not a substantial and operative factor in the dismissal. However, I have already said enough to indicate why the possibility cannot be so regarded - the Respondent's office as a shop steward endowed him with a special capacity to influence others and was therefore not easily dissociated from his ability to set an example to others ... 104The onus cast by s 244(2) means that, to succeed, the employer has to establish that it was not actuated by the injury. As Mason J said in Bowling at 617, the real reason or reasons for the taking of the adverse action must be shown to be "dissociated from the circumstances" that the aggrieved person has or had the relevant attribute. 105The evidence in this case does not show that the cause of the decision to dismiss was dissociated from the injury. On the contrary, the evidence shows the injury was a substantial and operative cause of the dismissal. 106We find the Commissioner did not err in concluding that the appellant did not rebut the presumption that Mr Riley was dismissed because he was not fit for employment as a result of the injury received.

Fitness for employment 107Macdonald C found that Mr Riley was "fit for the kind of employment for which he has nominated: Slicer": at [57]. The appellant submitted the Commissioner erred in so finding and that Mr Riley was not fit for his full pre-injury duties as a slicer, being the employment of the kind for which the worker applied for reinstatement pursuant to s 241 of the WC Act. 108Section 241(3) of the WC Act provides: 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. 109Section 243(2) provides: (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. 110The appellant's first line of attack regarding Mr Riley's fitness for employment was that the medical certificate from Dr Botes dated 10 November 2010, that Mr Riley relied upon to commence the application, was held by the Commissioner to need a weight lifting restriction. This finding appears to have based on what was said to be a concession in cross-examination by Dr Botes, Mr Riley's treating general practitioner, that the medical certificate was not accurate and should have a lifting restriction. That lifting restriction was lifting up to 10 kilos as per the certificate dated 27 April 2009. 111The appellant referred to Mr Riley's concession that slicing involved handling cuts of meat up to 11 kilos and to Mr Sutherland's evidence that a person who dropped meat, be it the boner or the slicer, would have to pick it up and take it to the dropped meat table. Mr Sutherland said that on at least 2 or 3 times a shift and possibly up to 7 or 8 times a shift this would involve cuts of meat up to 20 kilos in weight. 112The appellant submitted that in failing to comply with s 241(3) of the WC Act, Mr Riley's application was deficient and liable to be dismissed. It was submitted: Put another way, the Commissioner at first instance erred in failing to find that at the time of the Respondent applying for reinstatement to the Appellant, there was no medical certificate that was to the effect that the Respondent was fit for employment for which he applied for reinstatement (i.e. slicer). Further, no compensation could be ordered to be paid given this failing. 113It is not clear to us that Dr Botes did concede that his certificate of 10 November 2010 should have contained a lifting restriction of 10 kilos. And although the evidence is somewhat confused, we doubt Dr Botes did make the concession. The certificate dated 10 November 2010 did not contain a weight restriction nor did the prior certificate issued on 28 May 2009. Apart from confused questions and answers about a weight restriction having been left off the 10 November certificate, nowhere else in the evidence is there any suggestion that for the purpose of the certificate under s 241(3) a weight limit applied. 114We note what the Full Bench said in Leticia Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355; (1999) 130 IR 1 at 13 regarding the predecessor provision to s 241(3) (s 92(3) of the Industrial Relations Act 1996): The effect of the certificate, that is its general thrust, must be that the employee is fit to undertake the work as described by the employee when making application for reinstatement. 115In any event, the weight of the evidence regarding fitness, taken as a whole, favours the Commissioner's finding that Mr Riley was fit to perform the work of a slicer. This leads us to consider the second leg of the appellant's attack on the fitness issue. 116The Commissioner's decision regarding Mr Riley's fitness to perform the work of slicer would have been enhanced if he had canvassed more explicitly the reports of those medical practitioners relied upon by the appellant. Nevertheless, we accept that the Commissioner did take those reports/evaluations into account and his reliance on the evidence of Drs Botes and Doig and the fellow workers allowed the Commissioner to reach the conclusions he did. 117Whilst Drs Loeve, Higgs and Garvan expressed what might be regarded as reservations at various times (Dr Loeve in December 2008, Dr Garvan in March 2010 and Dr Higgs in August 2010) about the capacity of Mr Riley to return to full pre-injury duties and about the risk of re-injury, as the Commissioner found at [57], "The employer provided no medical evidence to say that the applicant was not fit." 118On the other hand, Drs Botes and Doig did turn their minds to the question of whether Mr Riley was fit for work. It is to be remembered that Dr Botes was Mr Riley's general practitioner and Dr Doig was an orthopaedic surgeon who performed the surgery on Mr Riley's shoulders. They were the two practitioners that had the most knowledge of Mr Riley's condition. The only two medical practitioners who gave oral evidence and who were subject to cross-examination were Drs Doig and Botes. 119Dr Botes certified that Mr Riley was fit to perform pre-injury duties. He remained of that view in the face of vigorous cross-examination. Dr Doig prepared a report dated 17 February 2011 In that report, he stated: It is my opinion, based on his recent examination and work performance over the last 18 months, that he is fit to continue to work as a slicer currently and in the foreseeable future ... In the report Dr Doig took into account Mr Riley complaint of some discomfort with prolonged use. He also considered that there was "some risk of further chondral [cartilage] damage to the shoulders, in particular the glenoid surfaces ... (but) ... this risk is small as opposed to substantial ..." 120The report concluded by stating: [T]he overall prognosis is good to excellent. Mr Riley is 59 years of age this year ... he should be able to perform the duties of a slicer up until his retirement age with minimal risk of requiring further surgery or causing significant damage to his shoulder ... 121There was some criticism by the appellant of the evidence of Dr Botes and Dr Doig. The appellant referred to the evidence of the pain Mr Riley was experiencing and the apparent failure of Dr Doig and Dr Botes to take that into account. As counsel for the respondent submitted, however, taking pain medication does not necessarily mean that that person is unfit for work. Neither Dr Botes nor Dr Doig expressed any concern about pain medication being relevant to incapacity. 122As counsel further submitted, pain felt by Mr Riley, according to Dr Doig, was a matter for Mr Riley. Dr Doig said that the pain was "a very subjective symptom" and that "one person's agony is the next person's niggle". 123It was also Dr Doig's evidence that a finding of 40 per cent loss of use of each arm did not necessarily equate to incapacity. That figure represented, in this case, the interaction between the way the WorkCover permanent impairment guidelines work and, in essence, the combination of an artificial replacement to a joint as well as range of movement limitation. Counsel noted Dr Doig was trained in the assessment of Permanent Impairment Guidelines under the WorkCover Scheme. 124An issue in the proceedings, relied upon by the appellant as evidence of Mr Riley's incapacity to perform the work of slicer, was that of over-reaching. The Commissioner referred to this at [68]: [68] The applicant was cross-examined on the physical requirements of the job in respect of a particular phase of his work. This work phase is when the slicer has to reach across the table to grab a section of meat thrown on the table by the boner. That is, the boner does not always throw a section of meat to land next to where the slicer is working. The applicant said that if a section of meat lands beyond his arms' reach, then he asks another slicer to move the meat toward him. The applicant initially denied but then conceded that the reason why he does not reach for a too far away section of meat, is the risk of re-injury. He also gave as his reason for not over-reaching, that he is trying to protect himself. 125The Commissioner proceeded to make the following findings regarding over-reaching: [69] In assessing the foregoing evidence, the Commission is not persuaded that the applicant's work method of not over-reaching for a too far away section of meat, means that he is not fit for the role of slicer. Again, the evidence of Mr Bayes shows that the employer took no issue with the applicant's work performance between May 2009 and October 2010. This is the period of time, in which, the applicant has adjusted his work method. In re-examination, he said that no one has said to him, in this time frame, that his work was not up to scratch. [70] The applicant called three witnesses being current or former employees to give evidence: Sutherland, Mawson and McNaughton. In cross-examination, Mr Mawson, a slicer, said as to the issue of pain in performing the job, that the applicant's complaint about pain was no more than anyone else would complain. Mr Mawson said in evidence-in-chief that he had worked with the applicant for about two years and any struggles the applicant might have had with the work was no more than anyone else (due to some of the meat cuts getting quite hard). Mr McNaughton stated under cross-examination that he did not notice the applicant having any difficulties performing the work. [71] The evidence of these two fellow workers are consistent with the earlier evidence that the employer had not taken issue with the applicant's ability to perform the job - that is, the applicant's fitness for the role. [72] The cross-examination of the applicant brought out the applicant's concession that he does not over-reach because of the risk of re-injury, which was a major issue pursued by the employer in the proceedings. [73] The Commission notes straight up, about this risk of injury issue, that it is one that the applicant is conscious of and, to his credit, he takes a precaution in his work technique to avoid. He had taken that precaution between May 2009 till the time of his dismissal in October 2010. He had taken that precaution without any subsequent complaint from the employer that his work was not up to scratch. 126In cross-examination, when it was put to him that Mr Riley had given evidence that "he was worried about injuring himself and that's why he wouldn't reach that far", Dr Botes said that would not necessarily change his opinion about whether Mr Riley was fit for the job of a slicer or whether there was a risk of re-injuring himself. Dr Botes then stated: [E]ach of the people working there - and I often see people work and they have their own way of protecting them. When Mr Riley went back to work ... everybody had agreed for him to do a specific job in a specific way ... clinically, he was doing the work in that way and in that way he didn't injure himself. I think anybody doing the work there has a possibility of injuring himself with or without previous injury. And clinically to me, that was good enough for him to do his work in that way. 127Dr Botes was then asked whether this evidence that Mr Riley "was worried about injuring himself and that's why he wouldn't reach that far", meant that he was not fully fit for the job of the slicer because he could not reach for the meat. Dr Botes answered: Again, I don't think that is correct because that is the way he was protecting himself and other people do similar things ...He is not fit if he has to over-reach ... 128The evidence accepted by the Commissioner was that Mr Riley did not have to over-reach. The appellant's own evidence, as counsel for the respondent pointed out, was that the work practice - of boners dropping cuts of meat closer to the slicers so that the slicers did not have to reach far to drag the piece of meat towards themselves - had been in place for a very long time; at least well before Mr Riley went off work before his operations. 129Finally on the issue of fitness, Mr Riley performed the normal work of a slicer from May 2009 to October 2010 without any question being raised about his physical capacity to do the work or any complaint he was not keeping up with the work. There was no probative evidence that he was unable to continue to perform the work of a slicer. 130We find that the Commissioner did not err in being satisfied that Mr Riley was fit for the work of a slicer.

Work, nature and conditions, risk and injury 131Under this heading the appellant was critical of other aspects of the Commissioner's decision. In respect of a number of those we have already addressed them under the previous heading. 132The appellant submitted Macdonald C did not properly identify or determine the nature and conditions of the work of a slicer with the appellant, in particular, it was heavy and repetitive work. At [93] of his decision the Commissioner stated: [93] The Commission's deliberation of that application also included an inspection of the Inverell abattoir and, in particular, the work of a slicer, boner and other related jobs. 133As we noted earlier, at [68] the Commissioner considered the physical requirements of the job: [68] The applicant was cross-examined on the physical requirements of the job in respect of a particular phase of his work. This work phase is when the slicer has to reach across the table to grab a section of meat thrown on the table by the boner. That is, the boner does not always throw a section of meat to land next to where the slicer is working. The applicant said that if a section of meat lands beyond his arms' reach, then he asks another slicer to move the meat toward him. The applicant initially denied but then conceded that the reason why he does not reach for a too far away section of meat, is the risk of re-injury. He also gave as his reason for not over-reaching, that he is trying to protect himself. 134The Commissioner also had regard to the report by the occupational therapist who opined that: Due to the constant upper limb use, repetitive movements and pace of which the job is completed it is unlikely that this position would be suitable for Mr Riley or sustainable into the long term. 135Macdonald C rejected the therapist's evidence on the following basis: [77] Ms. Brabrook's report was made after the applicant had been dismissed. That is, her evaluation is made after the event. There does not need to be any speculation as to Ms. Brabrooks evaluation as to its possible accuracy or otherwise, because the applicant had already been performing the role, per a rehabilitation programme, from May 2009 to October 2010. In that time frame, the applicant had not suffered any re-injury and had carried out his role as slicer without any comment from the employer. The fact that he had carried out that role, without any adverse reaction or comment, undermines the negative evaluation by Ms. Brabrook and so undermines as to make her evaluation non-persuasive. [78] Apart from the foregoing finding, the Commission also records that Ms. Brabrook's negative assessment of the applicant was made in the circumstance where she (an occupational therapist) had never met him and not carried out a formal functional assessment of the applicant. Her negative evaluation is her opinion based on other people's medical and functional assessment opinions. (Tr. 08/09/11 - p.15). She was unaware that the applicant had been performing his pre-injury duties. (Tr. 08/09/11 - p.18). [79] By contrast, the applicant brought forth witnesses as to his fitness to work, being two medically qualified doctors - his local medical practitioner (Dr. Botes) and his orthopaedic surgeon (Dr. Doig). Ms. Brabrook is not medically qualified. 136The appellant submitted the Commissioner failed to properly identify the surgical procedures, and did not properly take into account the loss of use of the arms. A reading of the Commissioner's decision as a whole indicates that submission is not correct.

Occupational health and safety 137It was submitted for the appellant that the Commissioner erred in not correctly interpreting and applying the OHS Act in some 11 respects. These included that the Commissioner did not consider: an employer's obligations pursuant to the Occupational Health & Safety Act 2000 (NSW); the penalties imposed upon an employer for breaching its obligations pursuant to the Occupational Health & Safety Act 2000 (NSW); culminating (sic) in ordering the Appellant to reinstate the Respondent to work that has an identifiable risk to the health, safety and welfare at their place of work; placing an unjust burden on the Appellant by ordering it to reinstate the worker to work that risks his health, safety and welfare and in so doing exposes the Appellant and its managers to breaches of their obligations pursuant to the Occupational Health & Safety Act 2000 (NSW). 138There is undoubtedly an obligation under the OHS Act on employers to ensure that employees are not exposed to risks to their health and safety (see s 8). A failure to meet this obligation may result in a heavy penalty. It is to be noted that there are defences available to employers if they are charged with a contravention of the OHS Act (see s 28) and, in particular, if it was not reasonably practicable for the person to comply with the relevant provision to which the charge relates. 139The submissions of the appellant regarding the provisions of the OHS Act seem to amount to the proposition that if an employee is injured at work and there is a risk of re-injury, the only appropriate course is to terminate the employee's employment to avoid liability under the OHS Act. 140That view does not appear to have been informed by decisions of the Industrial Court in its OHS jurisdiction. There must be countless cases where employees have injured themselves at work and have later suffered an aggravation of the injury or re-injured themselves. We know of no case that has come before the Industrial Court or its predecessors involving the prosecution of an employer on the ground that because the employee had received a work injury and was susceptible to re-injury, the employer had failed to ensure the employee was not exposed to a risk to their health and safety. None were drawn to the attention of the Full Bench. 141Where the employer has taken all reasonably practicable steps to avoid the risk of re-injury - if the risk is real, it is difficult to conceive of a prosecution being launched in those circumstances, let alone being successful. 142We do not regard the existence of the OHS Act as providing, of itself, a justification for an employer to remove injured workers from its workforce. 143The objects of the OHS Act include the following: (a) to secure and promote the health, safety and welfare of people at work, (b) to protect people at a place of work against risks to health or safety arising out of the activities of persons at work, (c) to promote a safe and healthy work environment for people at work that protects them from injury and illness and that is adapted to their physiological and psychological needs, ... (f) to ensure that risks to health and safety at a place of work are identified, assessed and eliminated or controlled. 144The idea that the only appropriate response to an injured worker at risk of re-injury is to terminate the worker's employment is at odds with these objects. It is distinctly at odds with the object to promote a safe environment at work that protects employees and others from injury and illness and that is adapted to their physiological and psychological needs. We would think it is also at odds with the objectives of the Workplace Injury Management & Workers Compensation Act 1998, which is to be read and construed with the WC Act. In particular, we note the object to promote the return to work of injured workers as soon as possible and to achieve optimum results in terms of a timely, safe and durable return to work following workplace injuries: Speirs v Industrial Relations Commission of New South Wales & Anor [2011] NSWCA 206 at [16]. 145If there are genuine concerns on the part of an employer and the concerns are soundly based that an employee is at risk of re-injury and may be a risk to the health and safety of other workers, before making a decision to terminate the employee - a step that in very many cases may have drastic consequences for the individual - it is our opinion there is an obligation on the employer to first examine all of the alternatives including rehabilitation, alternative work and adapting the workplace to the employee's needs. Termination of employment should be the last resort. 146In any event, the evidence in these proceedings is that Mr Riley is fit for the work of slicer. According to one doctor he is at no more of a risk of re-injury than other workers. That being so, there was no proper basis to dismiss Mr Riley on the ground that his health and safety was at risk.

Orders 147The Full Bench makes the following orders:

1. Leave to appeal is granted.
2. The appeal is dismissed.
3. The stay order made by Staff J on 12 January 2012 is dissolved.

Amendments 11 July 2012 - Addition of counsel for the appellant, Mr D Stewart Amended paragraphs: Coversheet/Counsel DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 July 2012