Of particular relevance in this case is the rebuttal presumption provision found at s 95(2).
65 In my opinion, the decisions in Casino and Riley do not address the fundamental issue to be determined here, that is, was Mr Bates' injury the substantial and operative cause of his dismissal. If the answer to this question is yes, then the reasoning in those decisions is relevant to whether the applicant should be reinstated to a position which the respondent might reasonably have available. However, if the answer is in the negative, it takes the matter no further and the issue of a reasonably available position is moot.
66 That being said, the determination of this matter hinges on the meaning of the expression "substantial and operative cause" (of the dismissal of the employee). The respondent vigorously maintained that Mr Bates' injury was not the substantial and operative cause of his dismissal. Indeed, it was Mr Hayes' evidence that the injury was not a factor at all in the decision to make Mr Bates redundant. If that evidence is accepted then the respondent will have successfully rebutted the presumption provided for in s 95 of the Act and, as I said earlier, that would seemingly be sufficient to end the matter.
67 It will be immediately apparent that there is no authoritative judgment of the Commission which has considered the meaning of the expression "substantial and operative cause" in the context of the injured worker provisions of the Act (now the Workers' Compensation Act). Certainly Cansino and Riley do not address this point. In Construction, Forestry, Mining and Energy Union (New South Wales Branch) on behalf of Scott Anthony Elwell and Cobar Mining Services Pty Ltd and Anor [2004] NSWIRComm 32, I made the following short observation as to the meaning of the expression:
100 I also accept Mr Bukarica's submission that the expression "substantial and operative cause" should not be read down to mean the sole or only cause. Even if there were other reasons for the applicant's dismissal, I am well disposed to find that the applicant's injury was a primary motivation for the respondent's decision to dismiss him.
68 In view of the reliance placed by the respondent on s 95(2) it is necessary, I believe, to give more fullsome consideration of the meaning of the expression in order to test whether the respondent's defence has been made out.
69 The Concise Oxford Dictionary defines 'substantial' as "of real importance or value, of considerable amount" and 'operative' as "having principle relevance". The Macquarie Dictionary defines the word 'substantial as "of ample or considerable amount, quantity, size etc; of real worth or value" and 'operative' as "most significant or relevant".
70 The first observation to be made from these definitions is that there is a similarity in both the words' meanings which, to my mind, is intended to give emphasis to the proposition that the injury must be the primary or principle cause of the employee's dismissal. As I said in Elwell, the expression should not be read down to mean the sole or only reason. However, conversely, it cannot mean that the presumption fails if the injury was but one of a number of reasons for the dismissal. It must be something much more than simply being one of the reasons or causes of the dismissal. Put another way, if the injury is a factor in the dismissal, it must be the factor which attracts the most weight.
71 Even if it is accepted that Mr Bates' injury resulted in him being relocated to the office and consequently his lack of office skills was a factor in his selection for redundancy, does the injury result in a conclusion that it was the most significant reason for his redundancy? There can be no doubt that Mr Bates was capable of performing his office duties. Indeed, there had been no complaint about his competence or abilities in this regard. But this is not the point. What is relevant, and how the case was developed, was whether Mr Bates' redundancy was genuine and therefore the significant or primary cause for his dismissal, rather than his injury.
72 It is not an answer as Mr Marshall contended, that had Mr Bates not been injured he would have remained a glass cutter tradesperson and not been made redundant. It followed, it was said, that therefore his injury was the substantial and operative cause of his dismissal because he wouldn't have been dismissed without it. This submission, apart from being purely hypothetical, ignores the reality of the situation faced by the respondent.
73 The undisputed evidence disclosed that the respondent was undergoing significant financial difficulties in 2005-2006. From profits of 1 million and 1.4 million in 2003 and 2004 respectively it suffered losses of $156,000 and $697,000 in 2005 and 2006. In August 2004 it had 84 employees and after the redundancies in August 2006, the staff numbers were 61. Mr Kesby, an experienced union official, did not dispute the state of the industry downturn in 2006 and his general discussions with the respondent about the situation. He attended the site on a number of occasions, but was not directly involved in the selection process surrounding the redundancies in August 2006.
74 The issue here is not whether Mr Bates was fairly selected in that process but whether his injury was the substantial and operative cause of his dismissal. That being said, I will have something less than complimentary to say about the process shortly.
75 The evidence leaves no room to doubt that the respondent was undergoing financial difficulties in 2006 and its response to these difficulties included the redundancy of a number of employees. I am satisfied that the redundancies in August 2006 were brought about by the genuine need to address the respondent's financial situation. This finding, however, does not address the issue here to be determined. The thrust of Mr Marshall's submissions was whether Mr Bates' redundancy was unfair and a 'sham' to disguise the real reason for his dismissal - his injury. Notwithstanding some obvious flaws in the process, I am satisfied that the primary cause of Mr Bates' dismissal was the respondent's need to make a number of redundancies. Support for this view comes from the following: