Commissioner of Police v Smith

DECISION 1In this matter, Richard Plunkett ("the appellant") seeks leave to appeal and, if granted, appeal against the decision of Connor C in Richard Plunkett v Silverbrook Research Pty Limited [2011] NSWIRComm 1031 dismissing his application for reinstatement to the position of senior software engineer with Silverbrook Research Pty Limited ("Silverbrook" or "the respondent") lodged pursuant to s 242 of the Workers Compensation Act 1987 ("the Act"). 2The appellant had worked at Silverbrook since 2001, having commenced employment there on a labour hire contract and, in 2002 and thereafter, having subsequently attained full time employment as a senior software engineer. His employment was terminated with effect from 26 August 2008. 3The appellant was diagnosed around 2005 with bilateral epicondylitis (known commonly as "RSI" or "tennis elbow"), a condition he developed during his time working for the respondent as a result of his typing duties. Between 2005 and 2007, the appellant continued to work for the respondent performing limited duties subject to an injury management plan. During 2006 and 2007, the appellant underwent surgery on each of his forearms. The appellant claimed and received workers compensation benefits in respect of the injury to his forearms. It was the appellant's contention that he suffered a concurrent psychological injury, which developed both as a consequence of coping with his physical injury and from difficulties he had experienced with his work colleagues and supervisors. 4In light of concerns as to the appellant's emotional state and his behaviour at work, the respondent directed the appellant to undergo a psychiatric assessment - a direction with which the appellant refused to comply. In August 2007, following his refusal, the appellant was suspended from work on full pay and, in May 2008, Silverbrook lodged a notification of an industrial dispute before the Commission against the appellant under s 130 of the Industrial Relations Act 1996 ("IR Act"). The matter proceeded before Cambridge C and was resolved by agreement. The appellant then underwent a psychiatric assessment, following which he was ultimately dismissed by the respondent in August 2008. 5In July 2010, having obtained medical certification stating that he was fit to return to his pre-injury duties, the appellant applied to the respondent for reinstatement to his former position in accordance with s 241 of the Act. In August 2010, the respondent refused to reinstate the appellant on the ground that it did not have a position available for him. 6Following Silverbrook's refusal to reinstate, the appellant commenced proceedings before the Commission on 25 August 2010 under s 242 of the Act, which culminated in the impugned decision published by Connor C. 7We should note, at the outset, the relevance of the decision of the Court of Appeal in Speirs v Industrial Relations Commission of New South Wales & Anor [2011] NSWCA 206 to these proceedings. As it happened, that judgment, delivered on 29 July 2011, post-dated Connor C's decision in the present matter which was given on 14 July 2011. While we acknowledge that the judgment was not available for consideration by the Commissioner at first instance, it is nonetheless a decision which the Commission is now required to consider. The relevance of the Court of Appeal's decision in Speirs is as to the jurisdiction of the Commission in determining whether a worker, who has applied for a reinstatement order, fits within the definition of 'injured worker' set out in s 240(2) of the Act. That provision is in the following terms: 240Definitions (cf IR Act, s 91) (1)... (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)... 8Relevantly, the Court of Appeal determined (at [95]) that "the Commission had jurisdiction to determine for itself whether the applicant was entitled to receive compensation for his injuries" in the context of an application made under s 242 of the Act. The Court held that the 'entitlement' of a worker to compensation arises by virtue of their having received an injury satisfying ss 4 and 9A of the Act, and subsists, even in the absence of a determination by the Workers Compensation Commission or the District Court, or a decision of the Workers Compensation (Dust Diseases) Board. The Court's decision in Speirs will be a factor in our determination of this matter. 9The legislative provisions upon which this case turns are found in Pt 8 of the Act. It is headed "Protection of injured workers from dismissal". Section 240(2), as noted, contains the critical definition of 'injured worker'. Section 241 provides that an 'injured worker' may apply for reinstatement from their employer if they have been dismissed as a result of their workplace injury. Section 241 is in the following terms: 241Application to employer for reinstatement of dismissed injured worker (cf IR Act, s 92) (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. 10If the employer rejects the injured worker's application for reinstatement, s 242 provides that the worker may apply to the Commission for a reinstatement order: 242Application to Industrial Relations Commission for reinstatement order if employer does not reinstate (cf IR Act, s 93) (1)If an employer does not reinstate the worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for a reinstatement order. (2)An industrial organisation of employees may make the application on behalf of the worker. (3)The Industrial Relations Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured worker was dismissed. 11Section 243 sets out the scope of the reinstatement order the Commission is empowered to make: 243Order by Industrial Relations Commission for reinstatement (cf IR Act, s 94) (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. 12Section 244 provides that the Commission, in considering whether to make a reinstatement order, will presume, in favour of the injured worker, that the worker was dismissed as a result of their injury, unless the employer can satisfy the Commission that the injury was not a substantial and operative cause of the dismissal of the worker. That section provides: 244Presumption as to reason for dismissal (cf IR Act, s 95) (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. 13There were multifarious issues raised in the appeal but, ultimately, we need only resolve one cluster of the issues in order to dispose of the appeal. For completeness, however, the issues raised, in short summary, included: (1)The meaning to be given to the term 'injury' under s 242 of the Act, particularly in light of the Court of Appeal decision in Speirs; (2)The meaning to be given to the presumption under s 244(1) of the Act that, in s 242 proceedings, an injured worker is presumed to have been dismissed because he/she is not fit for employment as a result of the injury, and the effect of the meaning of that section on the evidence required to be lead by the parties in relation to a rebuttal of the presumption under s 244(2); (3)The relevance of proceedings commenced by the appellant, other than the application under s 242 of the Act, to a determination of the issues under the Act; (4)What is meant by the term "a substantial reason" contained in s 244(2) of the Act; (5)Whether factors other than those given at or about the time of the appellant's termination are relevant to the Commission's exercise of its discretion under s 243 of the Act. 14In defining what we say is the essential issue that is determinative of the appeal, it is necessary to first set out the conclusion that was reached by the Commissioner at first instance. 15The ultimate determination made by Connor C was to dismiss the appellant's application for reinstatement vis-a-vis s 242 of the Act. He reached that conclusion on the basis of his satisfaction that, while it was accepted that the appellant suffered a compensable physical injury to his forearms, the requirements of the s 244(2) rebuttal provision had been met, meaning that injury had not been a substantial and operative cause of the appellant's dismissal. 16In coming to that view, the Commissioner reasoned that it was the appellant's behaviour and conduct at work which was the substantial and operative cause of his dismissal. The following passages from the first instance decision reflect this reasoning: 39This hearing turns on the wording of s.241(1), ie whether or not Dr Plunkett's dismissal was "...because he...is not fit for employment as a result of the injury received...". The evidence before me clearly indicates to my satisfaction that Dr Plunkett's dismissal did not actually flow from the injury he received but essentially from his relationship with other Silverbrook staff members and the issues raised in the letter terminating his services. ... 43... I note that Mr Kharti speaks in his letter of Dr Plunkett's "...fitness to return to work..." but it appears to me that the question of Dr Plunkett's fitness to return to work has to do with his behavioural issues and conduct at work and not the workers compensation injury to his forearms. 47... But in any event it seems to me that Silverbrook had genuine concerns on occupational health and safety grounds, both on behalf of Dr Plunkett and the other staff with whom he would come into contact were he to resume work with it and that was the substantial reason for his dismissal (and its refusal for him to return to employment). 17The reference to 'injury' in the extracts above was, in our view, a reference to the appellant's physiological injury. There was, however, a further workplace injury the Commissioner was, in our view, required to consider in this context, namely: an alleged psychological injury. The Commissioner mentioned the psychological injury issue in his decision, but, as we will find, failed to resolve whether the appellant had a compensable workplace injury in that respect, and what relevance any such determination may have had to his conclusion that it was the appellant's behaviour, conduct and attitude at work that was the cause of the respondent's decision to dismiss him. 18Having regard to the issues framed by the parties at first instance, it was necessary, in our view, for the Commissioner, in so determining the application before him, to reach a conclusion as to whether the appellant had sustained a psychological injury (being an injury which fell within the meaning of 'injured worker' under s 240(2) of the Act), and, if so, what bearing such a conclusion may have in determining whether the respondent had rebutted the presumption in s 244(1) by recourse to the provisions of s 244(2) of the Act. (It was also necessary to decide whether the worker, for the purposes of s 240(2) of the Act, was, for the purposes of his psychological complaint, able to bring an action in that respect under s 242 of the Act). 19If the appellant was an injured worker in this respect (and, we think, there was an arguable case that he was), then, in our view, on a review of proceedings at first instance and the submissions on appeal, the psychological injury must have been a matter which the Commissioner was required to consider (if answered affirmatively) in determining whether the respondent had displaced the presumption under s 244(1) (by demonstrating that the injury was not the substantial and operative cause of the dismissal under s 244(2)). That is, the Commissioner was required to determine whether the psychological injury was or was not a substantial and operative cause of the decision to dismiss (in contrast to the behavioural or attitudinal factors that the Commissioner found constituted the requisite cause). He failed to determine whether the appellant was an injured worker having regard to his claimed psychological condition and, therefore, failed to take into account the significance of that factor in his reasoning under s 244(2). 20There is plainly a potential overlap and coincidence in the appellant's behavioural and attitudinal issues (about which his employer complained), and the psychological issues he raised. If the appellant's behavioural issues were, in truth, a manifestation of his psychological injury, this may have had a bearing on the adjudication of the issues under s 244 of the Act (see Commissioner of Police v Smith [2010] NSWIRComm 162). 21Ms Eastman challenged, for the first time on appeal, that a finding could be made as a matter of law in terms of the psychological injury complained of by the appellant (vis-a-vis his status as an injured worker). However, while we consider those as matters about which attention may be given, we do not apprehend, on the present factual substratum before us and the arguments advanced, how they may be fatal to the appellant's claims based upon psychological injury at this juncture. 22It is clear from the foregoing that the resolution of the question as to whether the appellant had sustained a compensable psychological injury and what bearing that had on the resolution of issues under s 244(2) of the Act, were essential issues to be determined at first instance. The failure to resolve them constituted an appealable error of the kind contemplated in House v The King (1936) 55 CLR 499; 9 ABC 117; 10 ALJ 22. If, as the respondent contended, the Commissioner did, contrary to our view, in fact deal with these issues, there was plainly an absence of reasons which would, in any event, attract appealable review. These conclusions should result in leave to appeal being granted for the proper administration of justice, and the appeal being upheld. 23We will return to remedy later, but we shall now elaborate upon those reasons for our decision.