Carlton and United Beverages Limited and Philip Brunt [2006] NSWIRComm 98

LEGISLATION CITED: Industrial Relations Act 1996 Industrial Relations Act 1991

Ambulance Service of New South Wales v Health Services Union (2004) 136 IR 350 Anderson v Northern Co-operative Meat Company Pty Ltd [2004] NSWIRComm 300 Bruce v Cole & Ors (1998) 45 NSWLR 163 Philip Brunt v The Continental Spirits Company [2005] NSWIRComm 1133 Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264 Carlton and United Beverages Limited and Phillip Brunt [2005] NSWIRComm 338 Commonwealth Steel Company Ltd v Ward (IRC 314 of 1993 (unreported) 16 December 1994) EDC v Burnard & Ors (1993) 49 IR 446 Effem Foods Pty Ltd v Urban (1998) 81 IR 341 CASES CITED: Hollingsworth v Commissioner of Police No 2 (1999) 88 IR 282 Humphries v Cootamundra Ex Services and Citizens Memorial Club Ltd (2003) 128 IR 37 IGA Distribution Pty Ltd v Moses (No 2) (2002) 114 IR 307 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Little v Commissioner of Police (No 2) (2002) 112 IR 212 Newcastle City Council v Bevan (2001) 120 IR 121 Oswald v New South Wales Police Service (1999) 90 IR 42 Perrott v Xcellenet Australia Limited (1998) 84 IR 255 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales [2006] NSW IRComm 108

HEARING DATES: 15/02/06, 20/02/06, 22/02/06

APPELLANT Mr A Moses and Ms K Edwards of counsel Instructed by: Employers First LEGAL REPRESENTATIVES:

RESPONDENT Mr S Prince of counsel Solicitors: Szekeley & Associates

• 14 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WALTON J, Vice-President SAMS DP RITCHIE C Friday 9 June 2006

Matter No IRC05/4689 Carlton and United Beverages Limited and Phillip Brunt Application by Carlton and United Beverages Limited for leave to appeal and appeal against a decision of Commissioner Macdonald given on 26.8.2005 in matter no. IRC 175 of 2005

DECISION OF THE FULL BENCH [2006] NSWIRComm 98 1 This is an application for leave to appeal and, if leave be granted, appeal pursuant to ss187 and 188 of the Industrial Relations Act 1996 ('the Act') against a decision and orders of Macdonald C given in matter IRC175/05 on 26 August 2005 (Philip Brunt v The Continental Spirits Company [2005] NSWIRComm 1133). 2 The appeal is brought by Carlton and United Beverages Limited ('the appellant') consequent upon the orders of the Commissioner made under Pt 6 ch 2 of the Act, that the appellant re-employ Mr Philip Brunt ('the respondent') to the position he held at the time of his summary dismissal, but without his occupational health and safety duties. Because we have some concerns with the intent and practical effect of the Commissioner's order we will return to the detail of the terms of the order later. 3 At this juncture, we would observe that the Commissioner's orders were stayed on certain conditions by her Honour Schmidt J on 19 September 2005, [2005] NSWIRComm 338. Reasons for dismissal

4 At the time of his dismissal, the respondent was employed as a Security and Health and Environmental Officer at the appellant's Botany site. He was 45 years old and had worked for the appellant for 18 years. 5 The respondent was dismissed for misconduct on 23 December 2004 on two grounds: firstly, that he consumed alcohol on the appellant's premises without authorisation and, secondly, for the theft of the appellant's property namely the alcohol. 6 The circumstances of the respondent's misconduct were not in dispute. On 17 December 2004 after the completion of his shift, the respondent took and consumed a 375ml bottle of vodka in a room known as the Chatelle Room at the workplace. He then went to the staff entertainment room where he was found asleep by another employee. This employee and another employee took steps to get him home. The respondent's wife contacted an officer of the appellant and said she had concerns her husband had an alcohol problem. The respondent was suspended and after an investigation by the appellant, the respondent was dismissed. 7 During the proceedings before the Commissioner, the respondent admitted to another earlier incident of theft and consumption of alcohol on the appellant's premises. 8 The respondent did not contest his conduct, but challenged the fairness of his dismissal on the grounds that his alcohol problem had been caused by stress at work. It was claimed that his stress was brought on by his occupational health and safety duties and by a difficult relationship with a supervisor at the site, Mr Jagger. 9 In addition, it was said that the appellant had ignored its own Employee Assistance Policy and that, after 18 years' service, dismissal was too harsh a penalty. The Commissioner's decision

10 The conclusions and orders of the Commissioner are to be found at paragraphs [83]-[87]: 83 The Commission has before it an application by Mr Philip Brunt to be reinstated into his former employ. Having considered all of the evidence, the Commission has found the summary dismissal of the Applicant to be "harsh". The Commission has then had to consider the practicality of reinstatement. This is an issue because the Applicant seeks a qualified reinstatement that amounts to a re-employment. That is, the Applicant sought re-employment into his former position but without the occupational health and safety component that was part of his role.

Mr Moses opposed such a re-employment application. He said that no evidence had been led from witnesses for the respondent that such a position existed. He also made the point as to the practicality of reinstatement/re-employment by the Applicant who claimed that the stress at work caused his drinking problem. 84 Having considered the submissions, the Commission has decided to order the re-employment of the Applicant into the position he held at the time of his summary dismissal - but without his occupational health and safety duties.

The Commission made an adverse finding about Mr Jagger's attitude towards the Applicant in respect of the working relationship between Mr Jagger and the Applicant at the occupational, health and safety meetings - that is, Mr Jagger belittled and denigrated the Applicant at these meetings. It was also held that there was a correlation between the Applicant's drinking problem and stress at work. Witnesses gave evidence of the Applicant's anxiety in the context of the Applicant's occupational, health and safety duties. Given the foregoing, it would be inappropriate (if not a breach of the Occupational Health and Safety Act), to order an employee to resume such duties which caused him stress (not of his own making) and contributed to his drinking problem.

85 The Commission turns to the issue of loss of earnings. It is the Commission's order that the Applicant be re-employed, without loss of earnings, as if there had been no termination of his employment. The Commission has had regard to the evidence of earnings gained by the Applicant, subsequent to dismissal, and certain statutory criteria under s89 of the Act, in coming to the foregoing order. 86 The Applicant's barrister made a submission that the Applicant be reinstated or re-employed with a final warning, which latter condition was, as the Commission understood it, in recognition of the Applicant's conduct - theft of company product and unauthorised consumption of alcohol.

The Commission rejects that submission as being inappropriate under the circumstances. That the conduct took place, there is no dispute. But having considered the evidence as to the cause of the Applicant's drinking problem - the stress at work, the role of Mr Jagger in creating that stress, the failure of the respondent to apply the EAP Policy, the Applicant's length of service and unblemished employment record - then that "final warning" is not appropriate. ORDERS 87 The Commission hereby makes the following orders:

(1) The Applicant (Mr Philip Brunt) is to be re-employed by CUB Limited into the position he held at the time of his summary dismissal, but without his occupational health and safety duties.

(2) That the employment of the Applicant is to be taken not to have been broken by his dismissal. (3) CUB Limited is to pay the Applicant the sum of money (except for overtime) he would have earned, but for the dismissal.

(4) That this Order shall take effect on and from 26 August, 2005.

11 The principles applicable to the granting of leave have been settled by the Commission in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 (at 381 - 382), and the Full Bench authorities which have followed and applied that decision. They may be summarised as follows: (1) Leave will not lightly or automatically be granted: Perrott v Xcellenet Australia Limited (1998) 84 IR 255 at 265).

(2) Leave would ordinarily be refused where an appeal raises arguments which were not squarely raised at first instance, that is, where the appellant has brought, in substance, a new or materially different case on appeal: Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264.

(3) An appeal should raise substantial and important considerations, and any public interest considerations need to be evaluated "in the light of the nature of the issues raised in the appeal, including whether the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application". The Commission should also have regard to whether the appeal raises issues going to the proper administration of justice; see Humphries v Cootamundra Ex Services and Citizens Memorial Club Ltd (2003) 128 IR 37 at [77].

12 During his submissions, Mr A Moses of counsel, who appeared for the appellant, correctly acknowledged that, in balancing the various considerations and making findings of fact and in the exercise of his discretion, the Commissioner's finding that the respondent's dismissal for alcohol consumption and theft was harsh, might not attract the necessary requirements for leave to be granted in this appeal. Given the limits of the review of such decisions on appeal and our view that the Commissioner's finding that the dismissal was harsh was reasonably open to him, the respondent was not called upon in this regard during the hearing of the matter and we now confirm our order to refuse leave to appeal in this respect. 13 We note Mr Moses further submitted that he would "have nothing to say in respect of the respondent being awarded the maximum compensation under s89(5) in the event that the Commission were to find that leave ought not be granted on the issue of harshness". 14 However, Mr Moses had contended that the central focus of this appeal was the proper application of s89(2) of the Act in circumstances where a finding of unfairness had been made. In the light of the aforementioned conclusion as to leave this is the only remaining issue in the appeal. We consider that leave to appeal should be granted in this respect. In our view, this appeal raises significant issues concerning the proper administration of the Commission's unfair dismissal jurisdiction; particularly whether the order of re-employment should have been made by the Commissioner on the evidence before him. We have come to that view notwithstanding the recent decision of a Full Bench in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales [2006] NSW IRComm 108, because neither that decision, nor the decision of the Full Bench in IGA Distribution Pty Limited v Moses (No.2) (2002) 114 IR 307 entirely resolve all of the matters raised on this aspect of the appeal.

THE LEGISLATION 15 We have earlier observed that the Commissioner purported to make orders pursuant to ss 89 (1), (2) and (8) of the Act. Section 89 is in the following terms: (1) Reinstatement The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. (2) Re-employment If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable. (3) Remuneration If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order. (4) Continuity If the Commission orders reinstatement or re-employment, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal. (5) Compensation If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave. (6) When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment. (7) Threat of dismissal In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat. (8) An order under this section may be made on such terms and conditions as the Commission determines.

16 In light of the limited grant of leave to appeal, it is unnecessary to detail the submissions of the parties as to the Commissioner's findings under s84 of the Act. We shall summarise the respective submissions concerning s 89 of the Act. Appellant's submissions

17 Mr Moses submitted that, in his unfair dismissal application, the respondent had primarily sought reinstatement under s89(1). This is the primary remedy for a dismissed employee who invokes the jurisdiction of the Commission: see Oswald v New South Wales Police Service (1999) 90 IR 42 at pp67, Hollingsworth v Commissioner of Police No.2 (1999) 88 IR at pp.341 and 342, and Little v Commissioner of Police (No.2) (2002) 112 IR 212 at p243. Subsequently, the respondent proposed his re-employment to the position he previously held at the time of his summary dismissal, but without the occupational health and safety duties which formed part of the position. 18 As far as re-employment is concerned, s89(2) of the Act authorised the Commissioner: ... to re-employ the applicant, on terms and conditions determined by the Commission, in another position that the employer has available and that, in the Commission's opinion, is suitable…

Mr Moses submitted that there are two requirements that flow from s89(2) - (i) that the former employer has another position available and (ii) that, in the view of the Commission, the employee is suitable for that position. 19 Counsel for the appellant referred to Commonwealth Steel Company Limited v Ward (Matter No IRC 3144 of 1993 unreported decision of 16 December, 1994). There, it was submitted, the Full Bench of the Commission held that the word "available" in the equivalent provisions to s89(2) in the Industrial Relations Act 1991 (NSW) was not the same thing as "vacant": it simply meant that it would be possible to place a dismissed employee in an existing position on an employer's establishment apart from the position which he formerly occupied. 20 By comparison, it was contended, in Effem Foods Pty Limited v Urban (1998) 81 IR 341 the Full Bench of the Commission held (at p.346) that: ...the power under s.89(2) to order re-employment is limited to re-employment in another position that the employer has available. This requires the existence of an available and suitable position; it does not authorise the Commission to require an employer to create a position tailored to the abilities of the applicant... 21 Mr Moses put that the decision in Effem Foods Pty Limited v Urban had not been expressly overruled but has been the subject of adverse comment by various Full Benches of the Commission: see for example Newcastle City Council v Bevan (2001) 120 IR 121, IGA Distribution Pty Limited v Moses (No.2) and Anderson v Northern Co-operative Meat Company Pty Ltd (2004) 137 IR 404, which have preferred the approach of the Full Bench in Commonwealth Steel. 22 Mr Moses submitted that the reasoning of the Full Bench in Ward, Bevan, IGA and Anderson does not mean that the Commission has the power to compel an employer to create a new special position in its establishment to accommodate an unfairly dismissed employee. Yet, this was the effect of the Commissioner's orders in this case. The Commissioner appears to have concluded, it was contended, that re-instatement was not practicable although he made no express finding in those terms, which he was required to do. In making the order for re-employment, the Commissioner did not expressly refer to s89(2) of the 1996 Act or explain why such an order could be made. He was required to do this: see EDC v Burnard & Ors (1993) 49 IR 446. 23 Mr Moses added that, in this case, it was submitted to the Commissioner that there was no evidence that such a position existed - or was available. The Commissioner, apart from reciting the submission, did not provide reasons as to why the order could be made in the absence of such evidence. The Commissioner had a duty to provide such reasons. 24 It was further contended that the order for re-employment was unsupported by evidence as to its availability or suitability. On that basis alone, it offended two of the principles set out by Spigelman CJ in Bruce v Cole & Ors (1998) 45 NSWLR 163 at 188. 25 Finally, Mr Moses put that, on any view of it, the exercise of the discretion available under s89(2) of the Act had miscarried. It could not be seriously suggested that a former employee in the position of the respondent, could be re-employed in a plant that deals with alcohol (where he is not directly supervised and has opportunity to access any part of the plant on his own) in circumstances where:

(a) the respondent had called in aid of his explanation for the misconduct a drinking problem triggered by stress;

(b) although witnesses who were called on his behalf (excluding his wife) were not aware of any drinking problem, the evidence of the respondent was that the drinking problem either commenced in 2002 (pre Mr Jagger), April 2004 or from September 2004. His wife gave evidence that he would come home intoxicated from time to time and that she was concerned about him;

(c) whilst there was a general assertion that the respondent had a drinking problem, there was no medical evidence of the extent of the drinking problem or whether the respondent was an alcoholic. The onus of proof on this issue rested with the respondent. In those circumstances, even if the Commissioner was satisfied that there was a drinking problem there was no medical evidence that he was cured of the drinking problem. The assertion of the respondent in a letter to the General Manager of the appellant was that he: (i) had a drinking problem which is why he allegedly came forward for assistance; and (ii) that he was going to counselling (as of February 2005) and had stopped drinking. 26 The appellant submitted that the evidence of the respondent whilst being cross-examined was that he in fact had not gone to counselling and the way in which he was dealing with his problem was to go to the gym. The evidence of the respondent on this point was unreliable. If the Commissioner accepted that the respondent had a drinking problem, he should not have accepted that it was no longer an issue. The Commissioner should have found that it presented a potential and unacceptable risk if he were re-employed at the plant and accordingly refused relief. Respondent's submissions

27 Mr S Prince of counsel, who appeared for the respondent, put that the appellant was quite clearly on notice from at least 13 May 2005 (prior to the commencement of the hearing) that the respondent sought "re-employment to a dispatch position with no occupational health and safety component" upon the grounds that the occupational health and safety component was the stressor that caused the applicant's problems that are the subject of the proceedings. 28 The Commission had considered the submission of the appellant opposing such a re-employment application on the basis that no evidence had been led from witnesses for the appellant that such a position existed. The appellant had also submitted that the employment would not be practicable because the applicant had claimed that stress at work caused his drinking problem. When the Commissioner came to consider remedy, it is clear that he considered that an application existed for qualified reinstatement which was in reality an employment order. 29 Mr Prince submitted that the Commissioner clearly acknowledged that he was required to consider the practicability of reinstatement. He did so by considering the health and safety of the respondent. He clearly rejected the practicability of re-instatement to the precise position held prior to the dismissal on the basis of a concern for the respondent's health and safety. 30 Once the Commissioner had rejected the practicability of re-instatement, he clearly went on to consider whether or not re-employment was practicable in the circumstances.

31 Mr Prince contended that the submissions of the appellant proceeded upon the incorrect assumption that the Commissioner created a new and special position in the employer's establishment by reason of the re-employment orders. This was simply incorrect. The Commissioner merely modified a pre-existing position in order to ensure that occupational health and safety obligations were addressed. 32 Mr Prince put that there was no requirement on the Commissioner to specifically particularise a formulation of words in reaching his decision. The Commissioner has a discretion to formulate his discretion in any way he chooses, so long as he addresses in substance the matters required to be dealt with by the Act. It was clear that the Commissioner found that reinstatement would be impracticable where the Commissioner found at [84] that: ... given the foregoing, it would be inappropriate (if not a breach of the Occupational Health and Safety Act), to order an employee to resume such duties which caused him stress (not of his own making) and contributed to his drinking problem.

It was also clear that the Commissioner had regard to s89 of the Act in coming to the orders formulated by the Commission. 33 The respondent submitted it was not correct to say that no evidence existed of a position within the company which would satisfy the description nominated by the respondent for re-employment. The position which the respondent held prior to the termination of his employment comprised of four components: a) Safety; b) Dispatch/warehouse; c) Security; and d) Systems and procedure. 34 There was evidence that the appellant had reduced the respondent's safety role following his collapse at the Melbourne conference in 2004. The appellant had reduced some of the responsibilities that the respondent had for safety. In November 2005 Mr Beasant was asked to take over responsibility for the safety function and also to take on the management of the respondent. 35 In September 2005 management had determined that some of the respondent's tasks should be reduced and that was done independently of any request of the respondent. The reduction in the respondent's duties limited the requirements of his (safety) role to purely a co-ordination activity. The management of the four safety standards and injury management on site were reallocated to other staff. 36 It was clear that the respondent's job involved some proportion of time which would be spent on either dispatch or safety or security functions. It is equally clear that the employer was able to change elements of those duties from time to time to either increase the safety role or to reduce the dispatch. This was not a case where the employee was seeking re-employment to a completely new and non-existent position. 37 Mr Prince submitted that it was significant that the submissions put by the appellant as to the practicability of reinstatement or re-employment did not turn upon the nature of that division of the appellant's business or its incapacity or inability to provide work to the respondent if he was unable to undertake the occupational health and safety role within his job.

38 Mr Prince argued that it was not for the respondent to "lead" evidence from the appellant's witnesses. Mr Brunt's role in the proceedings was to challenge evidence put forward by the appellant in the process of cross- examination not to adduce evidence in chief from hostile witnesses. The appellant was perfectly capable of leading evidence to show that re-employment was impracticable and it did not do so. The appellant must accept the consequences of the way it ran the case. There is no indication of any evidence which was not led which could change the position. The focus by the appellant on the question of onus reveals the absence of any substantive basis for its submission. Appellant's submissions in reply

39 Mr Moses submitted that in the event of the Commission not upholding the appellant's primary position that the respondent's application for relief fails at the threshold, the appellant submitted that the Commissioner erred in making the order for re-employment.

40 The respondent's submissions on this point asserted that the failure of the appellant to lead evidence that the re-employment of the respondent on the terms ordered by the Commissioner was impracticable (or that no such position was available) prevents the appellant from ventilating this point on appeal. The respondent appears to assert that once the respondent had foreshadowed that such an order would be sought, the onus then shifted to the appellant.

41 Mr Moses maintained that this submission adopted an erroneous construction of s89(2) of the Act. The Commission cannot exercise the power to order re-employment unless the Commission is satisfied that: a) There is another position which the employer has available; and

b) that position is suitable. 42 The requirement for the consideration of suitability makes it plain that there must be evidence before the Commission of a position which the employer has available. The Commission cannot consider the suitability of a position until it has first determined that position exists, and what it is. Suitability cannot be considered in a vacuum. And the Commission cannot conclude that a position is available unless there is probative evidence before it of that fact. No such probative evidence was available to the Commission in the present case and the precondition for the exercise of the power under s89(2) was thus not met.

43 Mr Moses put that cases such as IGA Distribution Pty Limited v Moses (No.2) (2002) and Anderson v Northern Co-operative Meat Company Pty Ltd, which involved the re-employment of employees who had been on light duties prior to the date of termination, do not avail the respondent as to the proper construction of s89(2). In "light duties" cases, the Commission has evidence of the availability of a relevant position because of the fact that the employee had, prior to termination, occupied exactly such a position. The respondent cannot, in the same way, be said to have occupied a position which involved the performance of 40 per cent of the duties which he was performing prior to termination.

44 Even where the position in which re-employment is sought is a "light duties" position, appealable error will result where the Commission does not properly consider all of the relevant issues; see Ambulance Service of New South Wales v Health Services Union (2004) 136 IR 350 at [18]-[19].

45 Mr Moses submitted that the respondent's mistaken view that the appellant bears the onus of displacing the order for re-employment is repeated in the respondent's submissions as to the merits of re-employment. Unlike a case where compensation for personal injury is sought, a respondent to an application for relief under Part 6 of the Act is not generally entitled to seek to have an applicant for relief attend medical appointments. To suggest, in that circumstance, that the appellant was somehow obliged to lead medical evidence as to the state of the respondent's drinking problem is simply untenable.

46 Rather, evidence of that kind is evidence which the Commission would need to have before it in order to determine that the position was suitable, which is the second precondition to the exercise of a power under s 89(2). The Commission could not properly exercise the jurisdictional requirement of satisfying itself that the position was suitable in circumstances where the respondent had not put evidence on this matter before the Commission.

47 Mr Moses put that the difficulty of determining with precision the construction which the Commissioner adopted is compounded by the almost total failure by the Commissioner to expose the reasoning process which was adopted by giving cogent reasons. For example, it is not clear whether the Commissioner took into account the fact that, in the context of conduct which had potential occupational health and safety consequences, the appellant was entitled to expect those responsible for occupational health and safety compliance to themselves comply. 48 The importance of this issue, and the fact that the question of onus arises much more starkly in this case than it did in the "light duties" cases which the Full Bench of this Commission has previously considered, make this case an appropriate one for the grant of leave to appeal.

49 An issue emerged during oral submissions in which the respondent disputed the appellant's contention that the position to which he was re-employed constituted 60 per cent occupational health and safety duties and, as a consequence of the Commissioner's order, he would only be performing 40 per cent of his former duties. 50 It was suggested and recorded by Schmidt J in her stay decision that it was common ground that 60 per cent of the respondent's duties were occupational health and safety related. 51 The respondent submitted it was common ground that, prior to restructure of his duties in the first half of 2004, his occupational health and safety duties were 60 per cent of his substantive duties. However, there had been a modification of the role and duties of the respondent after his collapse at a conference in 2004. It was submitted that, if it was necessary to lead evidence about these matters then the matter should be remitted for re-hearing on the question of the remedy only. 52 The appellant maintained that 60 per cent of the respondent's former position involved occupational health and safety duties. There was no evidence before the Commissioner that the respondent's position did not comprise occupational health and safety duties. 53 It was submitted that there was no explanation from the respondent as to why leave should be granted to reopen his case. However, if the Full Bench is minded to remit the matter for re-hearing it should be subject to:

a) The matter being allocated to a member of the Commission other than Macdonald C.

b) The respondent be ordered to repay, within 21 days, the eight months' salary he was paid in compliance with the orders made at first instance. CONSIDERATION

54 The general approach to determining matters of the kind raised in this appeal was stated by the Full Bench in Anderson v Northern Co-operative Meat Company Pty Ltd at [33] and [34]: 33 In Entertainment Distributors Co Pty Ltd v Burnard (1993) 49 IR 446 at 453 a Full Bench of the Commission examined the provisions dealing with unfair dismissal in the Industrial Relations Act 1991 (NSW) and held: In our opinion, having regard to the provisions of Part 8 and in particular ss 246 and 250 it is fundamental to the proper exercise of the jurisdiction that the Commission should first make a finding whether or not the employee has been harshly, unreasonably or unjustly dismissed or threatened with dismissal by the employer and set out the reasons for that finding prior to making any order disposing of an application under s 246. It is not sufficient in our view for this merely to be left as a matter of inference from the fact that the Commission decides to dismiss the application or alternatively make orders pursuant to s 250. In this case the Commissioner made orders under s 250, including an order for re-employment without any finding or conclusion that the employees had been harshly, unreasonably or unjustly dismissed and without setting out any reasons for decision in which such a finding and the reasons therefore were implicit. 34 It is apparent from the decision before us that Ritchie C gave consideration to issues of reinstatement and re-employment before turning to consider whether the dismissal was harsh, unreasonable or unjust. This is an inversion of the statutory test which is impermissible. The approach adopted by Ritchie C was one of reasoning from his findings concerning the statutory remedies to a finding pursuant to s 84. This was wrong in law and principle and resulted, in our view, in the Commissioner ultimately not truly directing his attention to whether the dismissal was harsh, unjust or unreasonable (other than a mere recitation of such a finding at the end of his decision). 55 A Full Bench recently expressly endorsed this aspect of the decision in Anderson v Northern Co-operative Meat Company Pty Ltd in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales at [95]. To the extent that it may be thought that any aspect of the approach of the Full Bench in Riley may appear to deviate from the principles established in Anderson, we wish to indicate we are inclined to the view that Anderson represents the correct approach (however, we make no observations, in this respect, as to applications brought under Part 7 of Chapter 2 of the Act). 56 In the present case, Macdonald C made a specific finding that the dismissal was harsh, and leave to appeal that finding was refused. There being no remaining issue in relation to s 84 findings in these appeal proceedings, we turn to consider the correct approach to remedies. In Commonwealth Steel Company Limited v Ward at p.16, the Full Bench held (in relation to the statutory precursor to s 89): ... Where such a case has been made out [harsh, unreasonable or unjust dismissal], then the Commission has available to it three remedies in what we see as descending order. The primary and most appropriate remedy is reinstatement, as set out in s. 250(1). If the primary remedy is "impracticable", then the Commission has then to move to consider the second remedy, namely, re-employment. If that remedy is impracticable, then and then only, does the Commission move to the third and final alternative, namely, an award of monetary compensation which is limited. 57 The legal principles which apply to reinstatement under s 89(1) have not been contested. It is implicit in s 89(2) that reinstatement pursuant to s 89(1) must be practicable; and, following IGA Distribution Pty Limited v Moses (No.2) at p.315, an employee who has carried out restricted duties for a period of time can be said to hold thereby "a former position" (that is, a position with those duties or that work) for the purposes of s 89(1). Alternatively, the Full Bench noted in IGA Distribution Pty Limited v Moses (No.2) that an employee may be reinstated to a former position of full duties pursuant to s 89(1) but, having regard to s89(8), upon terms and conditions which would place him upon light duties. 58 If reinstatement is impracticable, the Commission must consider re-employment. This remedy is subject to a position being available, and, in the Commission's opinion, suitable. The meaning of "available" in this context (and in particular, whether it means "vacant") has been considered in a number of cases, including Commonwealth Steel Company Limited v Ward, Effem Foods Pty Limited t/as Uncle Ben's of Australia v Urban (1998) 81 IR 341, Newcastle City Council v Bevan (2001) 120 IR 121, and IGA Distribution Pty Limited v Moses (No.2). The approach in Commonwealth Steel and IGA v Moses (No 2) has been consistently preferred to the approach in Effem equating "available" with "vacant", most recently by the Full Bench in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales. To the extent that any uncertainty remains, we wish to make it plain that Effem no longer represents good law. 59 In Commonwealth Steel, the Full Bench elucidated the meaning of "available" thus: We therefore have grave doubts that the legislature intended that the word "available" meant "vacant". If that had been its intention, it would have been a simple matter for the legislature to have said so. In our opinion, the words "another position which the employer has available" where used in s 250(2)(a) mean, on their proper construction, another position that the employer has available in the sense that such a position " exists", that is, that another position is of avail to, capable of being used by, or at the disposal or within the reach of, the employer - whether or not it is vacant at the time. We think that the lack of a vacancy in an available position may be a factor which goes to the question of the vacancy of the applicant's former position to which he may be reinstated is also a factor which may be taken into account when considering the question of practicability. The weight of that particular factor will, or course, vary from case to case and it may well be, in the situation of an employer with a very small workforce or, indeed, one consisting only of an individual employee, that it will be greater than in a case where the employer has available numerous such positions. The larger the workforce, the less the relevant significance of the lack of a vacancy in other suitable and available positions. In so observing that the question of vacancy, either in the former position or another person, is a relevant factor for consideration in determining the practicability of reinstatement or re-employment, we are not to be taken as suggesting that it is the critical or overriding one amongst other relevant considerations which may attach in a particular case. 60 Relying upon the extract above from Commonwealth Steel, the Full Bench in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales explored the type of matters the Commission should consider in relation to "availability". In that case, which concerned an injured employee within the meaning of Ch 2 Pt 7 of the Act, the Commission had to consider the availability of an alternative position for a Regional Inspector of WorkCover who was subject to travel restrictions for medical reasons. The Full Bench observed at [108]: 108 On this view of the meaning of "available" in s 89(2), a relevant inquiry would, for instance, have been whether it was open to WorkCover to move Mr Riley out of the Construction Team and provide him with another position of Inspector at Gosford. This would have satisfied the rotation requirement and provided Mr Riley with a position that he was prepared to accept. It is apparent that no, or no adequate, consideration was given to this option by WorkCover in considering what alternative positions might have been available for Mr Riley at Gosford or some other location in the State where he could be employed, subject to his travel restriction because the mindset of WorkCover was that for a position to be available it had to be vacant. 61 Finally, as the Full Bench noted in Commonwealth Steel, monetary compensation is only to be considered when the first two remedies have been considered by the Commission and found to be unavailable. 62 In the present case, the Commissioner considered remedies at paragraphs [83] and [84] of the decision: 83 The Commission has before it an application by Mr Philip Brunt to be reinstated into his former employ. Having considered all of the evidence, the Commission has found the summary dismissal of the Applicant to be "harsh". The Commission has then had to consider the practicality of reinstatement. This is an issue because the Applicant seeks a qualified reinstatement that amounts to a re-employment. That is, the Applicant sought re-employment into his former position but without the occupational health and safety component that was part of his role.

Mr Moses opposed such a re-employment application. He said that no evidence had been led from witnesses for the Respondent that such a position existed. He also made the point as to the practicality of reinstatement/re-employment by the Applicant who claimed that the stress at work caused his drinking problem. 84 Having considered the submissions, the Commission has decided to order the re-employment of the Applicant into the position he held at the time of his summary dismissal - but without his occupational health and safety duties. 63 It is apparent from the decision that the Commissioner has, through a combination of errors of law and principle and omission, failed to distinguish between the three remedies; failed to consider them in the appropriate sequence; and failed to assess each individually by reference to the relevant statutory requirements. We note that the Commissioner firstly did not expressly make a finding of the impracticability of reinstatement although he proceeded to consider the re-employment of the respondent. Secondly, the Commissioner did not refer at all to s89(8) of the Act although it is obvious the re-employment of the respondent was made on certain terms and conditions. Nor did he give any specific consideration to the terms of s89(2) and how they may be applied in the context of the matter before him. Finally, it is not clear that, had the Commissioner approached the matter of remedy in accordance with the principles described above, the evidence before the Commission would have been sufficient to substantiate any of the findings required to be made. Considerable uncertainty attends the nature of the work performed by the respondent immediately prior to his dismissal; the proportion of this attributable to occupational health and safety duties; the availability of a position for re-employment; matters bearing on suitability such as the relationship between what was described as the respondent's "drinking problem" and his prior duties (let alone future, unspecified duties); and, if necessary, terms which may be appropriate to ensure that the "drinking problem" is adequately dealt with, which may encompass attendance for appropriate treatment under the auspices of the Employee Assistance Policy. 64 Leave to appeal has been granted in relation to remedy, and it is plain from the preceding discussion that the appeal, in that regard, should be upheld. Beyond that, however, the question remains as to the appropriate remedy. Both parties put submissions concerning the resolution of the issues by the Full Bench, and as to remittal. Mindful of the fact that all of the relevant evidence may not be before us, we are not in the position to follow the usual practice of the Commission and decide the matter for ourselves. We therefore consider that the correct approach is to remit the matter to be determined in accordance with the principles and reasons set out in this decision. 65 Both parties proposed that if the Full Bench allowed the appeal in relation to remedy and considered that the matter should be remitted, then the matter should be remitted to another member of the Commission. We accept those submissions on the basis that some of the factual matters which remain to be resolved in the light of this decision have already been partially determined by Macdonald C in his decision at first instance. That approach is consistent with the conclusions reached by the Full Bench in Ambulance Service of New South Wales v Health Services Union. There, the appeal Bench held that there was not the required consideration and determination of matters that were necessary before an order of re-employment was made by a single member of the Commission. We note that if the matter cannot be disposed of by correct application of the principles enunciated above on the evidence presently before the Commission, the question of whether leave should be granted to adduce further evidence is a matter to be determined on remittal. Furthermore, we do not consider it appropriate that any condition for the repayment of monies arising under the stay orders made of Schmidt J ([2005] NSWIRComm 338) should operate until the determination of the remitted matter (and then only subject to any further orders that may be made by the Member of the Commission hearing that matter). However, we shall otherwise dissolve the stay and, with that order, remove the requirement for top-up salary payments. ORDERS

66 The Commission makes the following orders: 1) Leave to appeal is granted in respect to remedy only.

2. The appeal is upheld as to the remedy ordered by Macdonald C in Matter No. IRC175/05.

4. The orders made by Macdonald C on 26 August 2005 in Matter No. IRC175/05 are quashed. 5) The stay order of Schmidt J of 19 September 2005 is dissolved; save that no condition for repayment shall arise until the determination of the remitted matter and then subject to any further orders made by the Member hearing the remitter.

6. The matter is remitted to a member of the Commission for determination in light of our conclusions in this matter.

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