Cicolini v Transport Secretary [2025] NSWIRComm 1095

1. The Applicant has been employed by the Respondent in a Grade 9 permanent position (Substantive Role) since October 2021. The Substantive Role was as a Resource and Deployment Manager.

...

4. The Applicant suffered a workplace injury ..., being adjustment disorder with anxious distress (the Injury).

5. Between 30 March 2023 and 24 April 2023, the Applicant took a period of sick leave due to the Injury. In this period, she accessed a psychologist for treatment.

6. Between 24 April 2023 and 22 May 2023, the Applicant accessed worker's compensation payments and continued her leave on this basis.

7. On 8 May 2023, the Applicant submitted a certificate of capacity. This certificate stated that she was fit to return to full-time work, but not with the 'same work colleague' who triggered the Injury.

8. On 25 May 2023, the Applicant commenced an alternate role in a different team of the Respondent (the Alternate Role). This Alternate Role was at a Grade 7 level, rather than Grade 9. The Applicant was, however, paid the substantive Grade 9 rate.

...

14. On 30 January 2025:

(a) the Respondent wrote to the Applicant, formally notifying her of their intention to medically retire her;

(b) the Applicant's treating General Practitioner provided an updated medical opinion to the Respondent, opining that the Applicant was medically fit to return to her previous role, in so far as she was not directly supervised by [the employee who she said triggered her injury].

...

17. On 29 April 2025, the Respondent medically retired the Applicant.

18. On 20 May 2025, the Applicant wrote to the Respondent, formally requesting reinstatement to her Substantive Role (the Reinstatement Request). On 7 July 2025, the Respondent rejected this request.

19. The Applicant subsequently filed in the Industrial Relation Commission of NSW, seeking that the Applicant be reinstated within the meaning of section 242 of the Workers Compensation Act 1987 (the Act)."

1. In limiting the extract, because that is all that is relevant to the Commission's decision, the Commission observes that the respondent then agrees with that extract as a proper description of the background.

1. Attached to the applicant's witness statement was the letter to the respondent of 20 May 2025 requesting that she be reinstated. That letter and the attachments to the letter were attachments TC-7 to the applicant's witness statement. The letter was from the Rail Tram and Bus Union (RBTU) on the applicant's behalf. The relevant parts of the letter are:

"RE: Tina Cicolini - Formal request for reinstatement

We write on behalf of our member, Ms Tina Cicolini making a formal request for her to be reinstated back to her position of Manager Legal Support and Development, previously called Resource and Deployment Manager due to her being fully fit for preinjury duty with no work restrictions.

A. Background

1. Ms Cicolini was a Manager Legal Support and Development within Transport for NSW (TfNSW) which is a grade 9 position.

2. Ms Cicolini unfortunately suffered a workplace injury resulting in her lodging a workers' compensation claim.

...

5. On 20 January 2025, Ms Cicolini provided a letter from her treating practitioner clarifying she was fit to return to her pre-injury hours and full duties of her previous role, attached and labelled 'Attachment 4'.

...

7. On 29 April 2025, TfNSW advised Ms Cicolini of their decision to proceed with the ROMA providing her 5 weeks paid notice, attached and labelled 'Attachment 6'.

B. Workers Compensation Act

8. Part 8 of the Workers Compensation Act 1987 (NSW) (the Act) allows workers who are dismissed as the result of a work-related injury to seek reinstatement or reemployment within two years.

9. We further note that s 241(3) of the Act advises of the requirements an injured worker must satisfy when seeking reinstatement, which states:

9.1 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.

9.2 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.

9.3 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.

10. When applying the above to Ms Cicolini's matter it is noted she is:

10.1 Applying to be reinstated to her previous position, which is Manager Legal Support and Development (previously called Resource and Deployment Manager);

10.2 The position is not more advantageous to her previous position; and

10.3 Ms Cicolini has provided to TfNSW a certificate given by her medical practitioner advising she is fit for employment of the kind for which Ms Cicolini is applying for reinstatement.

11.Ms Cicolini is seeking reinstatement to her previous position based on the medical certificate that was issued on 20 January 2025."

1. The contents of an attachment to the 20 May letter, itself dated 30 January 2025, set out:

"Medical Report

30/01/20205

RE: Ms Tina Cicolini

...

To Whom It May Concern,

Re: Tina Cicolini - Return to Work Capacity

I am writing to provide clarification regarding Tina's capacity to return to work for her workers' compensation claim.

I believe that Tina is medically fit to return to her pre-injury work hours and is capable of performing her role as previously undertaken.

The one restriction is that Tina is unable to work with or under the direct supervision of her previous senior staff member, .... Tina has previous explained that this individual was directly involved in the circumstances that led to her workers' compensation claim, and ongoing interaction with this person would likely exacerbate her stress and negatively impact her mental health.

Additionally, I would like to note that there are now no restrictions to Tina working with the individuals she previously had restrictions in relation to .... These restrictions have been lifted, and she is able to work alongside them without issue.

Please do not hesitate to contact me if you require further information or clarification regarding Tina's return-to-work capacity.

Dr Steven Vo"

Part 8 Protection of injured workers from dismissal

240 Definitions

...

(2) For the purposes of this Part, an injured worker is a worker who receives an injury for which the worker is entitled to receive compensation under this Act or the Workers' Compensation (Dust Diseases) Act 1942.

(3) For the purposes of this Part, a person is the employer of an injured worker only if the injury arose (either wholly or partly) out of or in the course of employment with that person.

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.

1. In the AOS, the applicant's relevant submissions were that:

20. Section 241 of the Act has been referred to as the 'gateway' provision - the fulfillment of which will allow a worker to bring an application before the Commission.

21. To meet the gateway, the Applicant must:

(a) be an injured worker;

(b) be dismissed because she is not fit for employment as a result of this injury;

(c) apply to the employer for reinstatement to employment not more advantageous than previously held;

(d) produce a certificate by a medical practitioner 'to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement'.

22. The Applicant is an injured worker within the meaning of the Act as:

(a) the Applicant received a personal injury, being adjustment disorder with anxious distress (s.4), as attested by the First Psychiatrist Report (the Injury);

(b) this Injury arose out of or in the course of employment (s.4); and

(c) the Applicant was entitled to receive compensation under the Act for the Injury, and indeed did receive worker's compensation payments on this basis between 24 April 2023 and 22 May 2025.

23. There is a presumption under the Act (s.244) that the Applicant was dismissed due to unfitness as a result of the Injury.

24. The Respondent medically retired the Applicant on the basis of the Injury and subsequent unfitness for employment. As such, this ground is made out, presumably uncontested.

25. On 20 May 2025, the Applicant applied to the Respondent seeking to be reinstated to her Substantive Position.

26. The Applicant attached the following medical certificate to her application for reinstatement:

(a) Medical Report issued by Dr Steven Vo, General Practitioner, dated 30 January 2025 (GP Certificate)

27. 'The plain words of s 241(3) do nothing more than require the worker to produce 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': Health Secretary in respect of HealthShare NSW v Betts [2023] NSWIRComm 1104 at [57].

28. The GP Certificate states that the Applicant:

(a) is medically fit to return to her pre-injury work hours;

(b) is capable of performing her role as previously undertaken, with the sole restriction being that she must not work 'with or under the direction supervision' of OB.

29. In the production of the GP Certificate, the requirements of s.241(3), and hence the preliminary gateway eligibility are prima facie met."

(Emphasis in original. Footnotes omitted, citations lifted to submissions.)

"30. The Commission may order that the Applicant be reinstated to her Substantive Role, if the Commission is satisfied that the Applicant is fit for 'that kind of employment'.

...

32. The Act refers to a 'kind of employment', rather than the more specific 'position' mandated by the unfair dismissal provisions of the Fair Work Act or Industrial Relations Act. 'The notion of a kind of employment has been established to be far broader than the notion of a position... the Legislation has been specifically worded to avoid the notion of more restrictive engagement in positions, but instead uses the broader concept of employment of a kind': Hofman v Penford Australia Limited [2008] NSWIRComm 1026 [61]; [65]."

(Emphasis in original. Footnotes omitted, citations lifted to submissions.)

1. During oral submissions Ms Cooper, Legal Officer RTBU, for the applicant took the Commission to the decision of Commissioner Cambridge in Hofman v Penford Australia Limited [2008] NSWIRComm 1026 to make good her submission as to the meaning of "kind of employment":

"64 Therefore there is a clear difference between what might be described as reinstatement to the position of Plant Operator at the Tamworth production facility, as opposed to reinstatement to employment of the kind associated with the employer's Tamworth production facility.

65 When the applicant made written application to the employer for reinstatement as is required under section 241 of the Workers Compensation Act, he did not use the broad descriptor of employment of a kind associated with, or in connection with, the Penford Tamworth production facility. Instead he sought reinstatement to his previous position as a Plant Operator or, in the alternative he suggested three other identified positions. It is quite understandable that the applicant would take an approach to reinstatement to refer to positions such as Plant Operator or a position in the Starch Laboratory etc. It would seem however that the Legislation has been specifically worded to avoid the notion of more restrictive engagement in positions, but instead uses the broader concept of employment of a kind.

66 Consequently any application for reinstatement of an injured worker could be very broad and need not be confined to specification of a particular position. It would be sufficient to broadly identify employment of a kind that might subsequently follow from either a successful approach conducted under section 241 or, as part of any Orders made under section 243.

67 The amended Draft Orders that were sought on behalf of the applicant sought reinstatement to any of four identified areas of the Tamworth production facility. The applicant expressed a preference for reinstatement to the first identified area, (a) Starch Laboratory. The employer sought to resist Orders for reinstatement in any of the identified areas contained in the amended Draft Orders. In doing so evidence about the desirability of having Plant Operators rotate through various areas of the production facility was said to create an impediment to the applicant being reinstated to work solely in the Starch Laboratory, (or the Wet Circuit Area)."

1. The respondent submitted, in summary, that the application to the respondent for the applicant to be reinstated was such that the accompanying certificate by a medical practitioner as to fitness did not comply with the requirements of s241(3) of the WC Act. The respondent's outline of submissions set out:

"Has the Applicant passed through the 'jurisdictional gateway'?

10. The Respondent accepts that:

(a) the Applicant was an 'injured worker' within the meaning of Part 8 of the WC Act (AS[22]); and

(b) the Applicant was dismissed by the Respondent because she was not fit for employment due to her compensable injury (AS[23]).

11. It follows that, pursuant to s 241(1) of the WC Act, the Applicant was entitled to 'apply to the (Respondent) for reinstatement to employment of a kind specified in the application'. This invites attention to the application made by the Applicant to the Respondent for reinstatement and the kind of employment to which the Applicant sought reinstatement (Reinstatement Application).

12. The Reinstatement Application was made on 20 May 2025 by way of correspondence from the Rail, Tram and Bus Union on the Applicant's behalf. It relevantly stated:

We write on behalf of our member, Ms Tina Cicolini making a formal request for her to be reinstated back to her position of Manager Legal Support and Development, previously called Resource and Deployment Manager due to her being fully fit for pre-injury duty with no work restrictions.

...

10. ...it is noted [Ms Cicolini] is:

10.1 Applying to be reinstated to her previous position, which is Manager Legal Support and Development (previously called Resource and Deployment Manager);

10.2 The position is not more advantageous to her previous position; and

10.3 Ms Cicolini has provided to TfNSW a certificate given by her medical practitioner advising she is fit for employment of the kind for which Ms Cicolini is applying for reinstatement.

...

11. Ms Cicolini is seeking reinstatement to her previous position based on the medical certificate that was issued on 20 [sic] January 2025.

12. We are now requesting for TfNSW to commence the process to reinstate Ms Cicolini.

13. The Reinstatement Application was expressed in unambiguous terms. It was confined to a request that the Applicant be reinstated to the role that she held immediately prior to her dismissal, being the position of Manager, Legal Support and Development (Substantive Role). She did not seek reinstatement to any other position, nor seek employment of any other kind.

14. The Respondent assumes that the reference in the Reinstatement Application to a '20 January 2025' medical certificate is, in fact, a reference to the medical certificate provided by her general practitioner, Dr Steven Vo, dated 30 January 2025 (30 January Certificate). It can be immediately observed that this medical certificate significantly pre-dates the Applicant's dismissal, which took effect on 29 April 2025. It was medical evidence to which the Respondent already had regard prior to the dismissal decision being made.

15. Contrary to the characterisation at AS[14(b)], the 30 January Certificate relevantly states:

I believe that Tina is medically fit to return to her pre-injury work hours and is capable of performing her role as previously undertaken.

The one restriction is that Tina is unable to work with or under the direct supervision of her previous senior staff member ... ongoing interaction with this person would likely exacerbate her stress and negatively impact her mental health.

16. The 30 January Certificate does not refer to the nature of Ms Cicolini's injury or illness, or any prognosis, including when (if ever) the medical restriction to which Dr Vo referred was likely to be lifted.

17. Pursuant to s 241(3), the Applicant was obliged to produce to the Respondent, with her Reinstatement Application, a certificate from a medical practitioner to the effect that the Applicant was fit for employment of the kind for which she sought reinstatement. Given the terms of her Reinstatement Application, it follows that the Applicant needed to provide medical evidence she was fit to perform her Substantive Role. This obligation to produce such evidence is expressed in mandatory terms. It is a 'jurisdictional gateway' to the Commission considering the Originating Application: Glen Robson v GWA Group Limited [2015J NSWIRComm 9 at [25]; Potter v Industrial Relations Secretary in respect of the Department of Regional New South Wales (No 2) [2023] NSWIRComm 1026 (at [55]).

18.0 It is difficult to see how a medical report that was outdated by around four months at the time of the Reinstatement Application, and which had been provided to the employer prior to dismissal, could ever properly satisfy s 241(3) of the WC Act. As the authorities make clear, the medical certification needs to establish current fitness for work: Jenkins v Secretary of the Ministry of Health on behalf of Nepean Blue Mountains Local Health District [2023] NSWIRComm 1045 (at [23]-[25], [31]) and the authorities cited therein; Ronald MacDonald v Jetstar Airways Pty Ltd [2019] NSWIRComm 1010 (at [62)-[64], [70]); Cansino and South Western Sydney Area Health Service [1999] NSWIRComm 355 (at 12, (7)). A historical medical certificate cannot achieve that end.

19. In any event, the fatal flaw with the 30 January Certificate is that, to satisfy s 241(3) of the WC Act, it needed to certify the Applicant as being fit to perform the Substantive Role. On any objective view, it does not.

20. The 30 January Certificate clearly states that the Applicant's fitness to return to work was restricted and conditional. The Applicant accepts as much (AS[28(b)]). The 30 January Certificate expressly provides that the Applicant cannot work or interact with, or work under the supervision of, a particular colleague and Manager. There is no apparent dispute that the Manager continues to be employed by the Respondent, and that if the Applicant were to be reinstated to her Substantive Role, she would need to interact and work with, and work under the supervision of, that same Manager."

(Emphasis in original. Footnotes omitted, citations lifted to submissions.)

1. The Applicant's Outline of Submissions in Reply set out, responding to the respondent's submissions:

1. The Respondent submits that the Applicant does not have jurisdiction to make an application for reinstatement pursuant to s.242 of the Workers Compensation Act 1987 (the Act), having failed to meet the requirements of s.241(3) of the Act.

s.241(3) - Medical Certificate

2. Section 241(3) of the Act grants relevant jurisdiction if, amongst other requirements, the Applicant 'produce(s) 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'.

3. The Respondent submits that medical report under the hand of Dr Steven Vo (the Certificate) does not meet this requirement on the basis of:

4. The Respondent submits that as the Certificate dates four months prior to the Application, it could not satisfy s.241(3) of the Act.

5. The cases provided by the Respondent do not act as authority for this proposition. The Applicant further takes issue with the categorization of the Certificate as 'historical'.

6. Jenkins does not mandate the currency of medical evidence pursuant to s.241(3) of the Act. It only establishes that the Commission must be satisfied that the employee is 'fit' for specified employment (at [23]): Jenkins v Secretary of the Ministry of Health on behalf of Nepean Blue Mountains Local Health District [2023] NSWIRComm 1045 (at [23]-[25], [31]).

7. The Respondent provides no authority for their proposition that a 'historical medical certificate' could not establish current fitness for work.

8. Indeed, as already canvased in the Applicant's submissions 'the plain words of s 241(3) do nothing more than require the worker to produce 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": Health Secretary in respect of HealthShare NSW v Betts [2023] NSWIRComm 1104 at [57].

9. The context of the Certificate is also pertinent. Following the provision of the Certificate to the Respondent in January 2025, the Applicant made repeated requests (on 30/01, 05/02, 10/02, 11/02, 14/02 and 18/02) that the Applicant be reassessed by the employer psychiatrist to confirm the updated medical opinion. The Respondent provided no substantial response to this request.

10. In such circumstances, it is not appropriate for the Respondent to raise currency objections to the Certificate, when the Applicant went to great lengths to obtain an updated medical assessment from the Respondent.

11. The currency objection to the Certificate is not established on the Respondent's submissions.

12. The requirements of s.241(3) are couched in two generalisations. First, the Certificate must be only 'to the effect' that the worker is fit. Secondly, the certificate must certify fitness for employment 'of the kind for which the worker applies'.

11. The Certificate states that the Applicant is 'medically fit to return to her pre-injury work hours' and 'capable of performing her role as previously undertaken'. The Certificate clearly provides evidence 'to the effect' that the Applicant is fit for employment.

12. The other criteria sought by the Respondent (at [16]) are simply not demanded by the legislation, noting that s.241 functions as a preliminary jurisdictional provision, rather than the later discretionary provisions.

13. 'The notion of a kind of employment has been established to be far broader than the notion of a position... the Legislation has been specifically worded to avoid the notion of more restrictive engagement in positions, but instead uses the broader concept of employment of a kind': Hofman v Penford Australia Limited [2008] NSWIRComm 1026 [61]; [65].

14. The Applicant has provided a medical certificate attesting for fitness for the 'kind' of employment sought, namely 'her role as previously undertaken'.

15. The Respondent's objections as to whether the employer could, in fact, impose proposed adjustments to separate OB and the Applicant (the Adjustments) within the substantial role are not engaged in the gateway provision, and rather relate to the exercise of the Commission's discretion.

16. Accordingly, the Applicant has met the preliminary requirements of s.243 of the Act."

(Emphasis in original. Footnotes omitted, citations lifted to submissions.)

1. The 20 May 2025 letter from the RTBU, by which the applicant sought reinstatement, should be read without an eye to technicality, but plainly as to what it says on its face. Given the beneficial nature of Part 8, and its intention, being the enhanced rehabilitation of an injured worker by their return to work, any doubt would reasonably fall to the benefit of the worker.
2. Unfortunately for the applicant, the letter is unambiguous. It sets out reinstatement to her "previous position" and indeed using that exact phrase three times. The letter names the role sought. Clearly the letter seeks reinstatement to one role, and it is specific as to which role.
3. The decision of Commissioner Cambridge cannot assist the applicant. Commissioner Cambridge's analysis of the meaning of "kind of employment" is rational, and I do not suggest any disagreement with the Commissioner. The term "kind of employment" as Commissioner Cambridge set out:

" ... could be very broad and need not be confined to specification of a particular position ...".

1. Confining the request to a specific position is what the applicant did in the letter of 20 May 2025.
2. In so far as Commissioner Cambridge at [65] of Hofman found that although the application to the employer was confined to four specific roles and yet the Commissioner, at [67], contemplated a wider range of employment for reinstatement, I observe that Commissioner Cambridge was conducting considerations at that point in the context of s 243 of the WC Act.
3. In this matter, there were indeed submissions about the "kind of employment" the Commission now could and should make. They extended beyond the applicant's "previous position". They do not arise in the context of s 241 and because of the conclusion that the Commission has reached in this matter, these are not determined in this application.

1. That the certificate predated the application to the respondent for reinstatement, and indeed the dismissal of the applicant, is unusual in the context of Part 8 applications to the Commission. By the time of the application to the respondent, the medical certificate was nearly four months old.
2. The respondent says this is too old to be current, as it says nothing of the state of the applicant's fitness as at 20 May 2025. The applicant says, apparently fairly, that her fitness for work has not changed and this is not seriously challenged by the respondent.
3. I consider the respondent does actually challenge this, but because of the conclusion the Commission has reached, it is not necessary or appropriate to make any conclusions or conduct any further analysis of this issue.
4. I have used the word "apparent" as to the applicant's fitness for work in the context of it not changing between at least the dismissal on 29 April 2025 and the application for reinstatement on 20 May 2025, and in all likelihood from 30 January 2025 to 20 May 2025 and indeed to this day. This is because the documentation, the evidence of the applicant, and the way in which the matter has been conducted has proceeded on the foundational assumption that the applicant is in fact fit for her previous duties, and possibly a wide range of other related work, except to the extent that she would work with or be supervised by a previous manager.
5. It also proceeded on the basis that the manager is still the manager of the applicant's previous position or the manager of that position's manager, the so-called "two-up". I am satisfied on the evidence of Maria Karam, Director People Portfolio 3, People and Culture Transport for NSW, there is a proper basis to conclude that person is the "two-up manager". Less clear is whether that is a lengthy two-up or a regularly engaging relationship.
6. Subject to a qualification, I am also satisfied that the medical report of Steven Vo of 30 January 2025 is a certificate given by a medical practitioner and that the report, if it had been unqualified, would have been sufficiently worded to be to the effect required by s 241(3) of the WC Act.
7. That qualification is significant, but unnecessary to resolve in this case. It is that the medical report is an attachment, to an attachment, to the applicant's witness statement.
8. Steven Vo, the medical practitioner, did not give evidence to the Commission. If the contents of his medical certificate were in dispute, and the respondent had clearly indicated it would be if the Commission proceeded past the gateway of s 241, the evidentiary value of the medical report would have been subject to doubt. Ultimately the question of the medical report's sufficiency or it being stale is not necessary to resolve.
9. Giving the medical report its highest value as current and as a medical report it sets out that the applicant is not medically fit for the employment to which the 20 May 2025 letter applied for her to be reinstated:

"The one restriction is that [the applicant] is unable to work with or under the direction supervision of her previous senior member ... "

1. The evidence is that the "previous senior member" remains a manager of the applicant's previous position. The application fails at the s 241 gateway.
2. There is cause to be concerned that a range of matters canvassed during the hearing of this matter are left unresolved but the previous decisions of the Commission, including those set out above in the submissions of the parties, make clear that the gateway is not a discretionary question for the Commission to consider.
3. In Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355, the Full Bench set out a 21-paragraph step-by-step analysis of Part 8 applications. Relevantly:

"(3) Such a person may apply to the employer who dismissed him or her for reinstatement to 'employment of a kind' which the person must specify when making the application: s92(1).

...

(5) Prima facie, the word 'reinstatement' imports a notion of becoming re-employed in the work which the person was undertaking at the time of termination of employment: see the discussion of the concept in Deltec International Courier Pty Limited v. Transport Workers' Union of Australia, New South Wales Branch [1993] 50 IR341 at 350-354; in any event, s91(3) defines 'reinstatement' to include 're-employment'. But, such a notion is displaced because the reinstatement is said to be available to employment of a kind specified in the application which, necessarily, imports the possibility of employment to something other than the precise pre-dismissal employment.

(6) 'Employment of a kind' refers to the work as specified in the application. The kind of employment applied for cannot be 'more advantageous to the employee' than the work in which the person was engaged when he or she first became unfit for employment because of the injury: s92(2). What is 'more advantageous' may be open to debate having regard to remuneration, general working conditions, status and the like; such debate does not arise in these proceedings. However, the kind of employment for which the employee applies for reinstatement may indeed, at his or her election, be less advantageous to the employee than the pre-injury employment, so long as it is not more advantageous.

(7) It is necessary for the person to 'produce' (that is, show) to the former employer a certificate from a medical practitioner. The effect of the certificate, that is its general thrust, must be that the employee is fit to undertake the work as described by the employee when making application for reinstatement: s92(3)."

1. Accordingly, the Commission orders that the application is dismissed.