Fouad v Hillsbus Co Pty Ltd (No 2)

Catchwords: WORKERS COMPENSATION - reinstatement - employment of the kind - closure of former workplace - continuity of employment - seniority - additional duties - compensation following reinstatement - exercise of discretion under ss 243(4) and 246 Workers Compensation Act 1987(NSW).

Legislation Cited: Motor Accident Injuries Act 2017 (NSW)
Workers Compensation Act 1987 (NSW), Pt 8, ss 243, 246

Cases Cited: Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305; (2013) 85 NSWLR 350
Cansino v South Western Sydney Area Health Service (1999) 130 IR 1; [1999] NSWIRComm 355
Fouad v Hillsbus Co Pty Ltd [2025] NSWIRComm 1061

Category: Principal judgment

Parties: Arlette Fouad (applicant)
Hillsbus Co Pty Ltd (respondent)

Representation: Counsel:
B Edghill (applicant)
Solicitors:
Segelov Taylor Lawyers (applicant)
Kingston Reid (respondent)

File Number(s): 2025/197884

Publication restriction: Nil

DECISION

1. Ms Arlette Fouad applies pursuant to Part 8 of the Workers Compensation Act 1987 (NSW) (WC Act) for orders arising from the termination of her employment with Hillsbus Co Pty Ltd (Hillsbus).

2. Ms Fouad was employed by Hillsbus as a bus driver. Following a workplace injury, her employment was terminated on 22 May 2023 on the basis that she was unable to perform the inherent requirements of the position.

3. Ms Fouad subsequently sought reinstatement pursuant to Pt 8 of the WC Act.

4. Following a Medical Assessment Certificate issued on 14 April 2026, Hillsbus accepted that Ms Fouad was fit to return to work as a bus driver and no longer opposed reinstatement.

5. The issues remaining for determination concern the terms upon which reinstatement should occur and whether additional relief should be granted.

Procedural Background and Issues in Dispute

6. On 2 July 2025, I delivered a decision in Fouad v Hillsbus Co Pty Ltd [2025] NSWIRComm 1061 (Fouad (No 1)).

7. In that decision I considered issues arising in relation to Ms Fouad’s claim for reinstatement, including the parties’ dispute concerning Ms Fouad’s fitness to return to employment.

8. I concluded that the application could not be finally determined until there had been an independent assessment of Ms Fouad’s capacity for employment and made orders facilitating a medical assessment pursuant to Part 8 of the WC Act.

9. Following those orders, Ms Fouad was assessed by a Medical Assessor of the Personal Injury Commission (PIC).

10. On 14 April 2026, a Medical Assessment Certificate issued determining that Ms Fouad was fit to return to her pre-injury employment.

11. Following the issue of the Medical Assessment Certificate, Hillsbus accepted that Ms Fouad is fit for employment as a bus driver. Accordingly, there is no longer any dispute as to fitness for employment, the parties agree reinstatement should occur, and no jurisdictional impediment exists in the making of a reinstatement order.

12. The parties filed a Statement of Agreed and Disputed Facts dated 13 October 2026, which significantly narrowed the issues requiring determination. I will not revisit matters determined in Fouad (No 1) except to the extent necessary to provide context for those issues.

13. The Statement of Agreed and Disputed Facts narrowed the issues requiring determination to:

14. whether any order should be made concerning seniority and, if so, its content;

15. the depot to which Ms Fouad should be reinstated;

16. whether any order should be made concerning Driver Mentor duties; and

17. whether relief should be granted pursuant to s 243(4) of the WC Act.

18. The reasons which follow address each of those issues in turn.

Factual Background

15. Ms Fouad commenced employment with Hillsbus on 29 May 2017 as a part-time bus driver at Hillsbus’s Northmead depot. Her employment became full-time on 16 October 2017.

16. On 20 November 2018 Ms Fouad was selected to participate in Hillsbus’s Driver Mentor Training Program and thereafter performed Driver Mentor work. Drivers undertaking that work received an additional allowance.

17. On 27 June 2019, Ms Fouad sustained an injury arising out of or in the course of her employment.

18. Following that injury, Ms Fouad ceased work and remained absent from active duties for an extended period.

19. On 22 May 2023, Hillsbus terminated Ms Fouad’s employment, contending that she was unable to perform the inherent requirements of her position.

20. Following the termination, Ms Fouad commenced these proceedings seeking reinstatement pursuant to Pt 8 of Ch 3 of the WC Act.

21. It is common ground that Northmead closed in April 2025. It is further agreed that following the closure most drivers were transferred to Rouse Hill, whilst some were transferred to Dural and other depots. Transfers to depots other than Rouse Hill occurred through an application process and allocation decisions made by Hillsbus.

Legislative Framework

22. Part 8 of the WC Act establishes a statutory scheme under which workers whose employment has been terminated because of injury may seek reinstatement.

23. Section 243 relevantly empowers the Commission to order reinstatement to the employment from which the worker was dismissed or to other employment of a kind specified in the section.

24. Section 243(4) confers a discretion upon the Commission to order payment of remuneration that would have been received had reinstatement occurred.

25. Section 246 empowers the Commission to order that employment be taken not to have been broken by the dismissal.

26. The parties referred to Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305; (2013) 85 NSWLR 350 and Cansino v South Western Sydney Area Health Service (1999) 130 IR 1; [1999] NSWIRComm 355.

27. Those authorities emphasise that the Commission’s task is to identify the employment to which reinstatement is sought and to determine whether reinstatement should occur in accordance with the statutory scheme established by Pt 8 of the WC Act.

28. Consistent with the approach discussed in Cansino, the fact that disputes may arise concerning incidents or attributes of employment does not alter the need first to identify the employment to which reinstatement is sought. In the present case, the employment identified by Ms Fouad is employment as a bus driver.

29. Bindaree Beef and Cansino also illustrate that, in determining the terms upon which reinstatement should occur, careful attention must be given to the practical operation of the employment relationship and the particular circumstances of the worker and employer concerned.

Evidence and credibility

30. Ms Fouad relied upon her affidavits dated 5 June 2025, 10 July 2025, 14 September 2026 and 8 October 2026, together with the affidavit of Marie Thelmo dated 10 September 2026. The affidavit of David Stuart Taylor dated 22 July 2025 had previously been admitted into evidence but was not relied upon at the hearing on 20 October 2026.

31. Ms Fouad was not required for cross-examination.

32. Ms Fouad also relied upon documents produced under summons and admitted into evidence as “Exh Fouad7”. Those documents included depot vacancy records, staffing information, seniority lists and the Dural Depot Seniority Agreement dated October 2022.

33. Hillsbus relied upon the affidavit of Joshua Gray dated 1 October 2026, the affidavit of Kylie Haberecht dated 1 October 2026 and the affidavits of Rebekah Glover dated 1 October 2026 and 8 October 2026.

34. Mr Gray and Ms Haberecht were cross-examined.

35. No substantial challenge was made to the honesty of any witness. Nor do I consider it necessary to make broad credibility findings. Subject to the findings below, I am satisfied that the witnesses gave their evidence honestly and sought to assist the Commission. The principal disputes concerned the inferences to be drawn from the evidence and the consequences that should follow from the operation of Pt 8 of the WC Act. To the extent that factual disputes arise, I have determined them by reference to the whole of the evidence, including the contemporaneous documents, the inherent probabilities of the competing accounts and the matters ultimately agreed between the parties. Where recollections differed from contemporaneous documents, I have generally preferred the latter.

Employment of the Kind

36. Hillsbus submitted that the Commission’s powers under s 243 of the WC Act are directed to reinstatement to the relevant “employment of the kind” and do not extend to directing particular incidents of employment such as depot allocation, seniority status or Driver Mentor responsibilities. Reliance was placed upon Cansino.

37. Ms Fouad submitted that, whilst the relevant employment is that of a bus driver, s 243(1) empowers the Commission to make orders “in accordance with the terms of the order” and therefore permits orders addressing practical incidents of reinstatement where necessary to give effect to the restoration of employment. Ms Fouad contended that depot location, seniority and Driver Mentor duties formed part of the position to which she seeks reinstatement.

38. Section 243 requires identification of the employment to which reinstatement is sought. Consistently with Cansino, the task is to identify the relevant employment and determine whether employment of that kind remains available.

39. Ms Fouad’s application identifies that employment as employment as a bus driver. The evidence establishes that employment of that kind remains available and Hillsbus does not contend otherwise. I am therefore satisfied that Ms Fouad should be reinstated as a bus driver.

40. It is unnecessary to determine every aspect of the Commission’s power under ss 243 and 246. The present case turns on whether those provisions permit the Commission to specify the depot at which reinstatement is to take effect where the employee’s former depot no longer exists. In Hillsbus’s submission that depot allocation, seniority and Driver Mentor responsibilities are not themselves distinct kinds of employment. Rather, they are incidents or attributes of employment as a bus driver. Nonetheless, as both parties relied upon those matters in addressing the practical operation and content of any reinstatement order, it is convenient to consider them separately.

Depot Allocation

41. Having concluded that the relevant employment is employment as a bus driver, it is necessary to determine whether reinstatement should occur at the Rouse Hill or Dural depot, as the Northmead depot no longer exists.

42. Prior to her injury, Ms Fouad was employed as a bus driver at Northmead.

43. Ms Fouad submitted that reinstatement should occur at Dural. She relied on matters including her personal circumstances and preference for that location, together with vacancy advertisements and staffing information produced under summons. In the alternative, she submitted that she should be reinstated to Rouse Hill with an expectation or requirement that she be transferred to Dural if a suitable vacancy became available.

44. The summonsed material demonstrates that Hillsbus has, at various times, recruited bus drivers for Dural. However, that material provides only a snapshot of staffing needs at particular points in time and must be considered together with the broader evidence concerning Hillsbus’s operational arrangements and workforce establishment. Considered as a whole, the evidence does not satisfy me that reinstatement should occur at Dural rather than Rouse Hill.

45. Hillsbus submitted that Rouse Hill is the appropriate location because it effectively replaced Northmead following the closure of that depot. For the reasons that follow, I agree with that submission.

46. I accept Mr Gray’s evidence that Northmead ceased operating, that Rouse Hill became its operational replacement, and that the majority of employees formerly based at Northmead transferred to Rouse Hill. While some employees transferred to Dural, those transfers occurred as part of a redeployment exercise associated with the closure rather than because Dural had assumed Northmead’s operational role.

47. In my view, those circumstances provide the strongest objective indication that Rouse Hill now most closely corresponds with Ms Fouad’s former employment. While no decision was made concerning Ms Fouad because her employment had ended before Northmead closed, the evidence establishes that Northmead’s functions and the substantial majority of its workforce were transferred to Rouse Hill and that transfer to Rouse Hill represented the ordinary consequence of the closure. The evidence does not establish that, had Ms Fouad remained employed, she would probably have been allocated to Dural.

48. Hillsbus further submitted that Ms Fouad sought reinstatement as a bus driver rather than appointment to a particular depot and that depot allocation remains an operational matter. I accept that depot location is not itself a distinct kind of employment for the purposes of s 243. However, because Northmead no longer exists, it is necessary to identify the depot at which the reinstatement order is to operate. In the circumstances of this case, specifying Rouse Hill simply gives practical effect to reinstatement to the employment from which Ms Fouad was dismissed.

49. For those reasons, I am satisfied that reinstatement should occur as a bus driver at the Rouse Hill depot.

Continuity of Employment

50. Ms Fouad seeks an order pursuant to s 246 that her employment be taken not to have been broken by the dismissal. Hillsbus opposes the making of such an order.

51. In determining whether to exercise the discretion conferred by s 246, it is necessary to consider the circumstances in which the employment relationship came to an end and in which reinstatement is now to occur.

52. I accept Ms Fouad’s evidence concerning her employment history with Hillsbus. That evidence was substantially consistent with the documentary material and was not materially challenged. I also accept her evidence about her volunteer driving activities following the termination of her employment and that she genuinely seeks reinstatement rather than merely compensation.

53. Hillsbus terminated Ms Fouad’s employment on the basis that, following her workplace injury, she could not perform the inherent requirements of her position. The dismissal did not arise from misconduct, unsatisfactory performance unrelated to that injury, abandonment of employment, or any independent breakdown in the employment relationship.

54. It is now common ground that Ms Fouad is fit to return to work as a bus driver and that reinstatement should occur. The issue is therefore whether reinstatement should be accompanied by an order preserving continuity of employment.

55. In my view, it should. The interruption to Ms Fouad’s employment resulted from the injury that led to her dismissal. Having concluded that reinstatement is appropriate, I consider that preserving continuity more accurately reflects the character of the employment relationship and the basis upon which reinstatement is ordered.

56. I do not accept Hillsbus’s submission that continuity should be refused because Ms Fouad remained unable to perform work for a substantial period following the termination of her employment. Although relevant, that fact must be viewed in context. The period of incapacity was a consequence of the very condition that gave rise to the dismissal. In the circumstances of this case, it is not a sufficient reason to refuse relief under s 246.

57. I am therefore satisfied that it is appropriate to exercise the discretion conferred by s 246 and order that Ms Fouad’s employment be taken not to have been broken by the dismissal.

58. The consequences of that order for questions of seniority are addressed separately below.

Seniority

59. Ms Fouad seeks an order preserving her former seniority. As noted above, continuity of employment and seniority are distinct concepts. Continuity concerns the preservation of the employment relationship for the purposes contemplated by the WC Act. Seniority, by contrast, concerns an employee’s relative position within the workforce and the practical consequences that flow from that position.

60. The parties ultimately agreed that the number 14141 referred to in Ms Fouad’s evidence was an employee number rather than a seniority number. No issue arises from that matter.

61. Ms Fouad submitted that, if continuity of employment is preserved, her seniority should likewise be restored. Hillsbus opposed the making of any order concerning seniority and submitted that seniority arrangements continued to operate during Ms Fouad’s lengthy absence from employment.

62. I accept the evidence of Mr Gray concerning the operation of seniority within Hillsbus. I am persuaded that seniority affects matters such as roster allocation and work opportunities, that it operates substantially through workplace custom and practice rather than contractual entitlement, and that the allocation of a particular seniority position may have consequences for other employees.

63. Ms Fouad also relied upon the Dural Depot Seniority Agreement dated October 2022. While that document provides evidence of workplace practices concerning seniority, it does not resolve the present issue. Nor does it provide a sufficient basis upon which the Commission could determine Ms Fouad’s present ranking within any current seniority system or assess the consequences of doing so for other employees.

64. Hillsbus further submitted that seniority is not part of the “employment of the kind” referred to in s 243 and therefore falls outside the scope of any reinstatement order. It is unnecessary to determine that question. Even assuming the Commission possesses power to make an order concerning seniority, I am not satisfied such an order should be made in the present case.

65. The evidence does not establish a proper basis upon which the Commission could determine where Ms Fouad should now be placed within any existing seniority structure. Nor does it permit a reliable assessment of the effect that any such determination may have upon other employees, whose interests may be affected but who are not parties to these proceedings and have had no opportunity to be heard.

66. In those circumstances, I do not consider it appropriate to make an order fixing, declaring or restoring a particular seniority ranking. Whilst continuity of employment should be preserved pursuant to s 246, it does not follow that the Commission should determine Ms Fouad’s relative position within the workforce. Those are distinct questions. The former concerns the legal continuity of the employment relationship, whereas the latter concerns the practical operation of Hillsbus's current workforce arrangements and the interests of employees who are not parties to these proceedings.

67. Accordingly, whether viewed as a matter of power or discretion, I decline to make any order fixing, declaring or restoring a particular seniority ranking.

Driver Mentor Duties

68. Ms Fouad seeks orders restoring her Driver Mentor duties upon reinstatement.

69. I accept the evidence of Ms Haberecht concerning Hillsbus’s Driver Mentor arrangements. Her evidence was detailed, practical and not materially undermined in cross-examination. I accept her evidence that Driver Mentor is not a substantive position or separate classification, but an additional responsibility allocated to particular drivers according to competence, suitability and operational requirements. I also accept her evidence that drivers returning after a lengthy absence would ordinarily require retraining and competency assessment before being considered for Driver Mentor responsibilities.

70. Ms Fouad has not performed bus driving duties since 2019. Although I acknowledge that she was undertaking Driver Mentor responsibilities immediately before her injury, and am satisfied that she should be reinstated as a bus driver, it does not follow that she should immediately resume Driver Mentor responsibilities.

71. The evidence supports Hillsbus’s submission that Driver Mentor responsibilities are not part of the employment as a bus driver to which reinstatement is sought. Rather, they are additional duties allocated from time to time according to competence, suitability and operational requirements. In those circumstances, it is unnecessary to determine the full extent of the Commission’s power under s 243. Even assuming such a power exists, I am not satisfied that the present case warrants an order requiring Hillsbus to allocate Driver Mentor responsibilities upon reinstatement.

72. Reinstatement to employment as a bus driver does not require the Commission to direct the allocation of additional responsibilities that depend upon the employer’s assessment of competence, suitability and operational requirements. Following any necessary retraining and competency assessment, Ms Fouad is entitled to be considered for Driver Mentor responsibilities on the same basis as other suitably qualified drivers. Accordingly, I decline to make any such order requiring Hillsbus to allocate Driver Mentor duties to Ms Fouad.

Claim Under s 243(4) of the WC Act

73. Ms Fouad seeks an order pursuant to s 243(4) of the WC Act requiring Hillsbus to pay remuneration she would have received had reinstatement occurred at an earlier time. Hillsbus opposes the making of any such order.

74. The parties made detailed submissions concerning the significance of the Personal Injury Commission medical assessment process, delays in the reinstatement process and these proceedings, post-assessment communications between the parties, mitigation, causation and the proper exercise of the discretion conferred by s 243(4).

75. The discretion conferred by s 243(4) is compensatory rather than punitive. A reinstatement order does not automatically entitle an employee to remuneration for the whole period between dismissal and reinstatement. Whether compensation should be awarded, and if so for what period, depends upon the circumstances of the particular case.

76. I do not consider it appropriate to award compensation for the entirety of the period following the termination of Ms Fouad’s employment. The evidence establishes that a genuine dispute existed concerning her capacity for employment and that resolution of that issue required participation in the statutory medical assessment process before the Personal Injury Commission. The evidence also discloses delays associated with obtaining information relevant to that process, including information concerning Ms Fouad’s motor accident claim and other material sought in connection with the application.

77. However, I am not persuaded that those matters justify refusing compensation altogether. Hillsbus was entitled to seek determination of the fitness issue through the statutory assessment process and I have accepted that the question of capacity required authoritative medical determination. Equally, Ms Fouad consistently maintained she was fit to return to work and sought reinstatement on that basis. Until the medical assessment was completed, the parties were engaged in a genuine dispute concerning her capacity for employment and, in those circumstances, I do not consider it appropriate to require Hillsbus to compensate her for remuneration allegedly lost during that period.

78. On 14 April 2026, however, the Personal Injury Commission issued a Medical Assessment Certificate finding Ms Fouad fit for her previous employment. From that point, the principal basis upon which Hillsbus maintained that she could not resume her employment had been authoritatively determined against its position. I am therefore satisfied that 14 April 2026 is the appropriate commencement date of any award under s 243(4).

79. Hillsbus also relied upon the lump-sum settlement received by Ms Fouad in connection with her motor accident claim. I accept that such a settlement was received and that it occurred within the statutory framework established by the Motor Accident Injuries Act 2017 (NSW). However, the evidence does not disclose the gross amount of the settlement, the terms upon which it was reached, the statutory basis upon which it was resolved, or the heads of loss for which compensation was paid.

80. In those circumstances, the evidentiary record does not permit findings as to whether, or to what extent, the settlement compensated Ms Fouad for economic loss corresponding with the period for which compensation is sought, or whether there is any overlap between the settlement and remuneration otherwise lost as a consequence of the delay in reinstatement. Whilst I have taken the settlement into account as part of the factual background, I do not regard it as carrying substantial weight in the exercise of the discretion and decline to make any reduction on that basis.

81. I am also satisfied that compensation should not extend beyond 16 July 2026. By that date, Hillsbus had indicated its willingness to restore the employment relationship as a bus driver following completion of the medical assessment process and the continuing dispute thereafter concerned the terms of reinstatement rather than whether reinstatement would occur. That substantially weakens the causal connection between the dismissal and any ongoing economic loss.

82. Taking those matters into account, I am satisfied that compensation should be awarded pursuant to s 243(4) of the WC Act for the period commencing on 14 April 2026, being the date of the Medical Assessment Certificate, and ending on 16 July 2026, being the date upon which Hillsbus offered reinstatement.

Orders

83. I make the following orders:

84. Pursuant to s 243 of the Workers Compensation Act 1987 (NSW), Hillsbus is to reinstate Ms Arlette Fouad to employment as a bus driver.

85. Pursuant to s 243 of the Workers Compensation Act 1987 (NSW), that reinstatement is to employment as a bus driver at Hillsbus’s Rouse Hill depot.

86. Pursuant to s 246 of the Workers Compensation Act 1987 (NSW), Ms Fouad’s employment is taken not to have been broken by her dismissal on 22 May 2023.

87. Pursuant to s 243(4) of the Workers Compensation Act 1987 (NSW), Ms Fouad is entitled to compensation in respect of remuneration lost during the period commencing on 14 April 2026 and ending on 16 July 2026.

88. The parties are to confer and, within 14 days, file either:

(a) agreed short minutes giving effect to Order 4; or (b) written submissions limited to the quantification of compensation under Order 4.

6. The matter is listed for directions at 2.30pm on 17 November 2026 by AVL.
7. Upon receipt of material filed pursuant to Order 5(b), should the Commission consider that it is not necessary that the parties provide any oral submissions to clarify their position, and that no additional material is required to be filed, then the parties will be notified that the listing of the matter on 17 November 2026 will be vacated. If no such listing or additional material is required by the Commission, the parties will be notified of the Commission’s final orders.

N J Constant

Senior Commissioner

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