Fox v. The Spastic Centre [2010] NSWIRComm 1065

Airline Hostesses Association v. Qantas Airways Limited (1974) 16 AILR Rep.785 Alchin v. South Newcastle Leagues Club (1977) AR 236 Bates v. G James Safety Glass Pty Limited [2007] NSWIRComm 129 Berger Paints Case (1984) 9 IR 273 CASES CITED: Director General of the Department of Corrective Services v. Michelson (1992) 42 IR 38 Elwell v. Cobar Mining Services Pty Limited [2004] NSWIRComm 32 Jones v. Dunkel (1959) 101 CLR 298 State of New South Wales v. Commonwealth of Australia (2006) 156 IR 1 Subramaniam v. Public Prosecutor (1956) 1 WLR 965

HEARING DATES: 15 November 2010, 26 November 2010

LEGAL REPRESENTATIVES: RESPONDENT Stephen Borrow Leana Street Consulting Pty Limited

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application under S.242 of the Workers Compensation Act, 1987

1 Ms Krista Fox was employed as a fundraising database co-ordinator by The Spastic Centre of New South Wales for a six month period of probation which ended (prematurely) on Wednesday, 17 December, 2008. At that time The Spastic Centre wrote to her in the following terms:

"....As you are aware, your initial six month period of employment with The Spastic Centre is a qualifying period. This period exists to provide an opportunity for both The Centre and yourself to determine your suitability for the role. The Centre has undertaken a review of your work performance as a fundraising database co-ordinator and has concluded that you are unsuitable for this role. As a result, The Centre has decided not to continue your employment, effective from Thursday, 18 December, 2008..."

2 In fact, in the middle of 2008 (19 August, 2008) Ms Fox had been injured at work - a repetitive sprain injury caused by her use of a computer mouse (tenosynovitis). Her long period of recovery from that illness has now reached a stage where she believes she may resume her pre-injury duties, however. She has obtained a medical certificate dated Wednesday, 11 August, 2010 supporting her fitness to return to those pre-injury duties. Nevertheless, Ms Fox claims that she still requires some further medical treatment for her injury. She is no longer in receipt of workers compensation. The Spastic Centre has claimed that Ms Fox had actually returned to work from workers compensation by Wednesday, 17 December, 2008 (briefly) at which time her services were terminated.

3 On Thursday, 12 August, 2010 Ms Fox lodged an application under S.242 of the 1987 Workers Compensation Act (formerly Part 7, Protection of Injured Employees [Ss.91 to 100], of Chapter 2, Employment, of the 1996 Industrial Relations Act), seeking her reinstatement in employment. From Ms Fox's perspective, there was a level of urgency concerning her claim. She is a citizen of the United States of America and a 457 visa holder (now likely to expire). She has been informed by the Department of Immigration that, since she is no longer employed by The Spastic Centre, her 457 visa may be cancelled and, consequently she would be deported from Australia and would not be able to access rights to medical treatment through workers compensation. In a memorandum which accompanied her S.242 application she recorded:

"....I write this note with great urgency. Because I am a sponsored overseas worker on a 457 visa, my employers are in a position to force me out of the country to deny me the rights of an injured worker under New South Wales IRC and WorkCover law. I specifically am ready to return to work. I am not seeking a payout. I have not filed any type of lawsuit for financial gain. Please review my case and these events as soon as possible. Surely it is not a precedent to injure foreign workers then rush them out of the country to deny the rights clearly stated by New South Wales law..."

4 The matter came before me for a preliminary hearing on Wednesday, 18 August, 2010 and a mention on Thursday, 2 September, 2010. Ultimately, the matter proceeded into arbitration in a hearing on Monday, 15 November, 2010 (for evidence) and Friday, 26 November, 2010 (for submissions). Mr Latham represented Ms Fox, calling her to give evidence in the hearing. Mr Borrow represented The Spastic Centre in the hearing. He called four witnesses to give evidence in the hearing: Mr Frank Sedmak, the manager of people, learning and culture for The Spastic Centre, Ms Tracy Mellor, its occupational health, safety and injury manager, Ms Deborah Hoffman, the general manager of strategy, research and planning, and Ms Kim Adams, an occupational health and safety rehabilitation provider (Step Health) who had been appointed to assist Ms Fox in her rehabilitation.

5 As I indicated earlier in this decision, Ms Fox is a citizen of the United States of America. Her employment history includes performing various roles as a database co-ordinator in overseas hospitals, a taxation office and a university, although for seven years prior to commencing work for The Spastic Centre (on Wednesday, 9 July, 2008) she had been living with her ex-husband in Hawaii and not working at all. As a fundraising database co-ordinator with The Spastic Centre Ms Fox was responsible for maintaining the quality of the data provided on a computer and merging duplicate records from the database. Most of that work was completed with the use of a computer mouse and a considerable amount of typing was obviously also involved.

6 Prior to her appointment to work for The Spastic Centre Ms Fox had incurred a number of injuries. For instance, when she was 17 years old she injured her thumb. In 1990 a wheelchair ramp collapsed while she was on it. She disclosed to The Spastic Centre the fact that she had back injuries following the incident in 1990 and that she had specific restrictions on her employment, ie no pushing, pulling or twisting, weight restrictions and rest periods on the computer. (She did not disclose her injury to her thumb apparently and claims that she had received medical advice that it would not have given her any concerns in operating a computer.) The Spastic Centre was prepared for her to commence employment with it on that basis with a six month qualification period set out in her contract of employment with it, viz:

"This appointment is subject to the satisfactory completion of a six month qualifying period. During the qualifying period, either party may terminate the employment by one week's notice in writing to the other. At the end of the qualifying period, your performance will be reviewed. If it is satisfactory, your employment will be confirmed and thereafter, The Spastic Centre's usual notice period will apply." At the time that Ms Fox's services were terminated she received one week's salary in lieu of notice.

7 Ms Fox noticed a pain in her right shoulder after approximately one week into her role with The Spastic Centre and by Tuesday, 19 August, 2008 she claimed that the pain in the middle of her right forearm did not stop when she had left work and was not using a mouse. She claimed in her evidence that she believed that it was the cord on the mouse which was causing her the most concern as it tended to stick as she moved it. She sought from The Spastic Centre that it provide her with a wireless mouse, ie one that was cordless and when there was a delay in one being provided for her, she indicated that she would purchase one herself. That was rejected by The Spastic Centre on the basis that there was a need to standardise hardware for its computers. A wireless mouse was ultimately provided to her but Ms Fox found it unsatisfactory because she claimed it was designed for use with her right hand and it exacerbated the injury to her left hand. She was provided by her attending medical practitioner with a brace to wear and was advised to take anti-inflammatory medication. The pain persisted, however.

8 Ms Fox therefore received advice from Ms Mellor concerning her workers compensation entitlements and she lodged a workers compensation claim. She continued to attend work, although she remained in pain from her injury. On Wednesday, 5 November, 2008 Ms Fox was directed by Ms Mellor to go home and recuperate. Ms Fox's attending medical practitioner subsequently supported her view for a return to work but Ms Mellor insisted that she only return to work when she was fit for her pre-injury duties.

9 Ms Fox' s evidence, contained in a written statement accompanying an affidavit she supplied, records that Ms Adams had convinced Ms Fox's physiotherapist to support her in returning to work - which, in any event, she claimed she wanted to do. Ms Fox also claimed that her physiotherapist had told her that she did not necessarily think she was ready to return to work but the physiotherapist was content for her to try a resumption of duties. Ms Fox had been informed by her physiotherapist and Ms Adams that it was much easier to rehabilitate someone when they were at work and that an ergonomic assessment of her workplace would assist in that process.

10 Since Ms Fox had not used a computer mouse for some time, however, she borrowed a mouse to try at home. After ten minutes she found she was in excruciating pain and this confirmed her in her view that she was not yet fit to return to work. She contacted her physiotherapist and claims that she told her that, in those circumstances, she believed she was not yet fit for pre-injury duties but she agreed with Ms Adams that an ergonomic assessment of the workplace was a good idea.

11 Ms Fox claimed that Ms Adams spoke to her on Wednesday, 17 December, 2008 and:

"....insisted I should return to work as scheduled. She was then direct with me, telling me to lie to my employers and say that I was okay to return to work on pre-injury duties when clearly I was not. She allegedly did this because she wanted to obtain an ergonomic assessment of my workplace on Thursday, 18 December, 2008 before everything shut down for Christmas. She wanted this to be conducted whilst I was sitting at my desk. I told her I was not willing to lie to my employers and say I was fit for pre-injury duties when I could not use a mouse. However, she said there was no harm in returning to work at this time. She insisted that I should not go see my doctor and that I should return to work as planned. She said that even if I was only there for the ergonomic assessment it would be a step forward..."

12 Ms Fox therefore agreed to return to work on Thursday, 18 December, 2008 with some reservations. However, according to Ms Fox, Ms Adams also directed her to attend a meeting on Wednesday, 17 December, 2008. Ms Adams understood it to discuss her return to normal duties on the following day. Ms Fox had both her forearms in splints and she claimed that she made it clear to Mr Sedmak and Ms Hoffman that, whilst she was content to attempt to return to normal duties, she still was not able to perform her pre-injury duties without any restrictions. She claims she told them:

"....I have been instructed to confirm to say that I am fit for my pre-injury duties notwithstanding this is not an accurate reflection of the real situation."

13 Ms Adams denies that she informed Ms Fox to lie to The Spastic Centre or to say that she was okay to return to pre-injury duties when, in fact, she was not and Mr Sedmak and Ms Hoffman also deny that Ms Fox spoke to them at the meeting, saying that she had been told to lie about her state of health. Ms Adams also denies that she told Ms Fox not to consult her attending medical practitioner.

14 I find Ms Fox's evidence in this respect to be implausible. Ms Adams, as an experienced occupational health and safety provider, would be most unlikely to make comments of that nature which would certainly go against her professional responsibilities and the independence in her role. Ms Adams claimed that instead she suggested to Ms Fox that, if she was experiencing pain and discomfort in using a computer mouse at home it would be better for her to be supervised by the occupational therapist in the workplace to determine the causes of the discomfort and to determine if ergonomic changes could be completed to minimise any pain and discomfort that she was experiencing.

15 Independent of those difficulties, steps were being taken to bring Ms Fox's employment with The Spastic Centre to an end. Mr Sedmak and Ms Hoffman had assessed Ms Fox as not suitable for the work she was performing and had expressed concerns that she may not make it through her probationary period. In the first few months of Ms Fox's employment, Ms Hoffman believed that she was comprehending the general requirements of the role she was to perform. However, after she had completed the intensive database training, the frequency and repetition of some of her questions concerning the job and the level of support she required did not diminish and Ms Hoffman became concerned over her competency to perform the role. Further training did not seem to Ms Hoffman to have any effect. And in fact, as Mr Borrow submitted, it appeared that Ms Fox was spending little real time on the computer at all - which makes her claim that the use of the mouse was actually the cause of her discomfort surprising.

"...during her employment we had tried to encourage the applicant in her role and gave her some positive reinforcement in the areas she was performing well in but we also broached several areas where she was not performing..."

Mr Sedmak recorded in his affidavit evidence that he, Ms Hoffman and the chief executive officer (Mr Rob White) had:

"....reached the conclusion that the applicant's inability to respond to simple directions, as well as a failure to address specific areas of non-performance in her work that had been brought to her attention through numerous meetings...could not be turned around. We also reached the collective view that the expectations placed on the applicant in her role were no more than could be reasonably expected of any competent person in her position. The management team, therefore, reached the conclusion that it would exercise its option to terminate the applicant's employment. There was a six month qualifying period in the applicant's employment contract that was not due to expire until Tuesday, 6 January, 2009. A decision was made to wait until after the Christmas Appeal had concluded on Saturday, 8 November, 2008 to terminate her employment.

Things then started to deteriorate with the applicant's performance, including her behaviour with colleagues and management. Her complaints were ongoing and it seemed to me that her problems were not physical but psychological. The applicant then lodged a workers compensation claim for a tendonitis injury to her right arm and would wear a splint on her arm to work.

In late October or early November, 2008 the applicant started to come into work with a splint on both her left and her right arm. She also started to exhibit some further obsessive behaviour and I received reports from her staff advising that when they had said hello to her she would chew their ear off about her injuries and what the respondent was not doing to assist her..."

17 Mr Sedmak then commenced monitoring Ms Fox's performance and behaviour. He claimed that he noted a further deterioration in Ms Fox's behaviour and he was informed that there were some basic tasks that Ms Fox was either not performing or refusing to perform. The decision was taken, principally it would appear by Mr White, that Ms Fox's employment was to be terminated. It was nevertheless decided not to proceed with the termination of Ms Fox's employment until she returned to her pre-injury duties. Mr Sedmak recorded in his affidavit that when Ms Fox:

"....eventually received the WorkCover medical certificate stating the applicant was fit to return to pre-injury duties on Thursday, 18 December, 2008, Ms Hoffman in consultation with Mr White and I decided that we would terminate her employment on the evening of Wednesday, 17 December, 2008. We chose to do this in the evening so that the other staff were not required to deal with the applicant when she came in. Her colleagues were well and truly 'over' the applicant's behaviour at this stage.."

As Mr Latham suggested, much of Mr Sedmak's evidence is hearsay - what other staff members not called as witnesses in this hearing told him about Ms Fox. That is not evidence of the substance of what was said but I believe I may admit it into evidence on the basis of Mr Sedmak's assertion that was what had been communicated to him [ Subramaniam v. Public Prosecutor (1956) 1 WLR 965] 18 Mr Latham also submitted that Mr White was the actual decision-maker for the termination of Ms Fox's employment with The Spastic Centre and since he was not called by Mr Borrow to give evidence, it was open to me to infer that his evidence would not have assisted The Spastic Centre [Jones v. Dunkel (1959) 101 CLR 298]. I draw no such inference. It appears that both Ms Hoffman and Mr Sedmak were part of that decision-making process and I do not believe that Mr White's evidence would have added to what was already before me from their evidence.

19 Ms Adam claimed, and I believe her, that when she gave advice to Ms Fox to resume duties on Thursday, 18 December, 2008 she was not aware of the decision by The Spastic Centre to bring Ms Fox's probation to a premature end, that she was acting independently of the management of The Spastic Centre in that respect - as would be proper. Ms Adam's concern was only to ensure the rehabilitation of Ms Fox into her former job with The Spastic Centre.

20 In the morning of Wednesday, 17 December, 2008 Ms Fox contacted Ms Mellor and expressed doubts that, since she had tried to use a computer mouse at home on the previous night and had incurred pain in her arm as a result, she was uncertain as to whether she should return to work and that she had an appointment with another medical practitioner and would not be able to attend work until 5.00pm that evening. Instead, the meeting was brought forward to 2.30pm to accommodate Ms Fox.

21 At the meeting Mr Sedmak confirmed that there was a certificate from WorkCover confirming her return to work in her pre-injury duties and then handed her a letter confirming the termination of her services and the reasons why that action had been taken. Mr Sedmak informed Ms Fox that she would remain covered under workers compensation but because of the requirements of her 457 visa, The Spastic Centre was obligated to inform the Department of Immigration that her employment had been terminated but that she had 30 days in which to find another job to preserve that 457 visa. The meeting was brief and according to Mr Sedmak, Ms Fox was quiet during it and made no response to the developments.

22 Ms Fox's response was, in fact, to lodge an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the State IR Act, claiming that the termination of her services was unfair and seeking an urgent hearing of the matter because of her 457 visa requirements. The matter came before Bishop C on Tuesday, 23 December, 2008 and Wednesday, 24 December, 2008. Since The Spastic Centre was a trading corporation within the meaning of S.51(xx) of the Commonwealth Constitution and as a result of the provisions of the 2005 Federal Workplace Relations Amendment (Work Choices) Act at that time it was argued on behalf of The Spastic Centre that there was no jurisdiction for the Part 6 application [State of New South Wales v. Commonwealth of Australia (2006) 156 IR 1]. Nevertheless, Bishop C attempted unsuccessfully to resolve the matter by conciliation and ultimately Ms Fox decided to withdraw her claim. Mr Sedmak asserted that as part of that attempt at conciliation an offer was made to Ms Fox to extend her period of employment to enable her more time to look for another job. Ms Fox rejected that offer.

23 On Wednesday, 7 January, 2009 Ms Fox also lodged an application for relief before the Australian Industrial Relations Commission, alleging that the termination of her services was unlawful and that matter came before Hamberger SDP on Friday, 9 January, 2009 and was subject to conciliation. It was also discontinued. (More recently Ms Fox appears to have attempted to revive those proceedings in Fair Work Australia and her claims have been heard there before McKenna C but the matter has since also been withdrawn.)

24 Mr Latham submitted that I am provided with a wide discretion to exercise in these proceedings and he believed that there was no credible evidence before me in this hearing to deny me exercising my discretion in favour of Ms Fox. He has sought that Ms Fox be reinstated in employment with The Spastic Centre and that she should receive compensation for the loss of earning from the time she lodged the application - Thursday, 12 August, 2010 - to the date of my decision. Mr Borrow has rejected that claim, indicating that there was no justification for me to exercise my discretion to intervene in support of Ms Fox and he emphasised in his submissions the failure of Ms Fox to meet the standard expected of her in the performance of her work and the limited time which the evidence revealed when she was actually performing the work on the computer.

"(1) If an injured employee is dismissed because he or she is not fit for employment as a result of the injury received, the employee may apply to the employer for reinstatement to employment of a kind specified in the application.

(2) The kind of employment for which the employee applies for reinstatement cannot be more advantageous to the employee than that in which the employee was engaged when he or she first became unfit for employment because of the injury.

(3) The employee must produce to the employer a certificate given by a medical practitioner to the effect that the employee is fit for employment of the kind for which the employee applies for reinstatement."

"(1) If an employer does not reinstate the employee immediately to employment of the kind for which the employee has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the employee), the employee may apply to the Commission for a reinstatement order.

(2) An industrial organisation of employees may make the application on behalf of the employee.

(3) The Commission may not make a reinstatement order, except in special circumstances, if the application was made more than two years after the injured employee was dismissed."

"(1) The Commission may, on such an application, order the employer to reinstate the employee in accordance with the terms of the order.

(2) The Commission may order the employee to be reinstated to employment of the kind for which the employee has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the employee), but only if the Commission is satisfied that the employee is fit for that kind of employment.

(3) If the employer does not have employment of that kind available, the Commission may order the employee to be reinstated to employment of any kind for which the employee is fit, being:

(a) employment of a kind that is available but that is less advantageous to the employee; or

(b) employment of a kind that the Commission considers that the employer can reasonably make available for the employee (including part-time employment or employment in which the employee may undergo rehabilitation).

(4) If the Commission orders the employee to be reinstated, it may order the employer to pay to the employee an amount stated in the order that does not exceed the remuneration the employee 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."

26 Notwithstanding the advice of Ms Adams, Ms Fox's physiotherapist and the medical clearance Ms Fox had received, there still appears to be some doubts in Ms Fox's mind that she is actually fit for work with a computer mouse, a requirement of her particular work with The Spastic Centre. Ms Fox still appears to me to believe that she needs some further medical treatment for her injury. It remains fundamental and trite under S.243 that Ms Fox actually be fit for the kind of employment available to her in The Spastic Centre. There is no evidence before me to support a claim that The Spastic Centre had other work that might be available to Ms Fox not involving a computer. That area was not explored before me.

27 S.244 reverses the onus of proof that a dismissal was caused by the injury, viz:

"(1) In proceedings for a reinstatement order under this Part it is to be presumed that the injured employee 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 Commission that the injury was not a substantial and operative cause of the dismissal of the employee."

As Mr Latham has submitted, the key to this case is the actual reason for the dismissal. If Ms Fox was dismissed because she was not fit for employment as a result of her injury [S.241(1)] or substantially because of her injury [S.244(2)] she may be entitled to obtain a remedy under S.243. Mr Latham has argued that the words in S.244(2) - "...a substantial and operative cause..." which I have highlighted above should not be read down to mean the sole and only cause for the dismissal. He emphasised in written submissions that S.244(2) spoke of a substantial and operative cause, and not the substantial and operative cause, of the dismissal being the fitness of the dismissed employee. Mr Latham asserted that to rebut the presumption in S.244(1) it was sufficient to show that the injury of the dismissed employee had an effect on the decision maker: it did not have to be the only reason or, in his view, even the predominant or major reason. To that extent, he took issue with unreported decisions of Sams DP - a decision on Friday, 5 March, 2004 in Elwell v. Cobar Mining Services Pty Limited [Matter Nos.IRC 3633 and 3364 of 2003 and a decision on Thursday, 31 May, 2007 in Bates v. G James Safety Glass Pty Limited [Matter No.IRC 3284 of 2006] - which held otherwise. It appeared to Mr Latham that Ms Fox's fitness for work, and the difficulties that had emerged in her working relationship with The Spastic Centre as a result, was a contributing factor to her ultimate dismissal.

28 I accept that in cases of this nature it is not always possible to distinguish clearly between legitimate reasons for the termination of an employee, eg the employee's misconduct, poor work performance or behaviour, and those reasons which should not legally be open to the employer, eg the termination of an employee protected by the injured worker provisions of the WC Act. There are often a mixture of reasons for a dismissal. But I believe that Mr Latham has raised the bar higher in that regard than is supported by the actual wording of S.244(2). It is a substantial and operative cause to which S.244(2) refers, ie something on which the employer was chiefly motivated in bringing an employee's contract of employment to an end.

29 In my opinion, with the evidence before me in this hearing Mr Borrow has been able to rebut the presumption in S.244(1). Whilst it may be open to me to conclude that Ms Fox's injury may at least have been a factor in the termination of her employment by The Spastic Centre, I regard it as only a minor factor: it was not a substantial reason for the dismissal of Ms Fox. I am satisfied that the termination of her services by it was substantially based on a perception the management of The Spastic Centre had formed that she had not achieved the standard of performance in her work that they were expecting from her during her period of probation. 30 I note that the termination of Ms Fox's services was contemporaneous with her (reluctant) return to work. In fact, the meeting of Wednesday, 17 December, 2008 in which her services were terminated, actually preceded the day that Ms Fox was intending to resume duties - Thursday, 18 December, 2008. But I do not read anything in that fact to suggest that the decision taken to terminate Ms Fox's employment was actually related to Ms Fox's fitness or otherwise for the job she had to perform for The Spastic Centre. On the basis of the evidence before me in this hearing The Spastic Centre had already decided to terminate Ms Fox's services earlier but had delayed the implementation of that decision until she actually returned to work.

31 If this matter were pressed under Part 6 as an unfair dismissal, the timing of the dismissal - the fact that the decision to terminate Ms Fox's services was taken before the meeting on Wednesday, 17 December, 2008, and the dismissal was actually implemented one day before Ms Fox was to resume work - may be an issue to bear in mind. As may have been whether or not Ms Fox was truthful when she applied for the work with The Spastic Centre and indicated that, apart from the problems with her back, she had no other injuries which might affect her in the performance of her duties for it. But I do not believe that those issues arise specifically in this hearing under WC Act. Furthermore, I note that in the conciliation proceedings before Bishop C those problems appear to have been addressed by The Spastic Centre extending the date of the dismissal to permit Ms Fox to look for other employment. That offer was rejected by Ms Fox.

32 There was, of course, a substantial, and largely unexplained, delay by Ms Fox pursuing her claim: Ms Fox's services were terminated on Wednesday, 17 December, 2008 and she did not lodge her current application under S.242 until Thursday, 12 August, 2010. It was still lodged inside the two year period stipulated in s.242(3) and therefore she does not have to establish to my satisfaction any "...special circumstances..." to justify her delay. Nevertheless, prior to Ms Fox lodging her S.242 application, The Spastic Centre had heard no word from Ms Fox concerning her intentions since her dismissal and the aborted proceedings in the State and Federal industrial jurisdictions which had immediately followed her dismissal (although she was continuing for much of that time to receive workers compensation benefits).

33 Notwithstanding the extension of time permitted by S.242(3) for the lodgement of applications under S.242, in my opinion, an unexplained delay of this nature may still militate against Ms Fox receiving the remedy available to her under Ss.241 and 243 - her reinstatement in employment with The Spastic Centre - which is what she claims to be now seeking. That is particularly the case where she had abandoned the applications she made both in the State and Federal industrial jurisdiction almost twelve months ago (without any explanation of her intentions). As Macken J of the former State Industrial Commission indicated in the Berger Paints Case (1984) 9 IR 273 at p.274, a delay of nearly twelve months in processing an application for reinstatement was an "…almost unsuperable barrier…" for such an application succeeding.

34 It seems to me that the motivation for Ms Fox's action in now initiating the current proceedings after such a lengthy delay - and earlier proceedings which she aborted both before this Commission and in the Federal industrial jurisdiction, is less to do with her genuine desire to resume work with The Spastic Centre and more to avoid deportation and the benefits of workers compensation. I accept the significance and the disadvantage she would suffer with the expiration of her 457 visa and appreciate her desire to remain in Australia but I do not believe that presents her with a legitimate reason to avoid the expiration of her 457 visa by attempting to preserve her employment with The Spastic Centre against the clear decision taken by it to bring her employment to an end two years ago based on the perception of the management that her performance and attitude at work fell short of what they were requiring of her.

35 It must also be acknowledged that were Ms Fox to be reinstated in her employment with The Spastic Centre she would do so on the probationary basis under which she was formerly employed, ie a six month trial, which had less than a month to run. In the judgment of the Court of Appeal of the State Supreme Court (Kirby P, Handley and Sheller JJA) in Director General of the Department of Corrective Services v. Michelson (1992) 42 IR 38 and (at p.48) Kirby P stated that:

"…the very purpose of probation will often be to consider, by observation of the probationer's work performance under trial, whether he or she is suitable to enjoy the privileges attaching to permanency…"

36 In Airline Hostesses Association v. Qantas Airways Limited (1974) 16 AILR Rep.785 Commissioner Stanton of the former Australian Conciliation and Arbitration Commission described probation as "…an extension of the selection process…". In Alchin v. South Newcastle Leagues Club (1977) AR 236 Sheehy J of the former Commission commented (at p.241): "… As his employment was on probation, I think that the board sought to retain for itself, by the use of that expression, the right to decide whether or not it wanted to employ him - the same right that any employer would have at an initial interview when deciding whether or not to engage an employee…"

37 (I note also in that respect S.83(2)(b) of the State IR Act, and Reg 6 made under it, exclude from jurisdiction under Part 6 claims of unfair dismissal employees serving a probationary period employees of three months or such reasonable period having regard to the nature and circumstances of the employment. That provision is confined to Part 6 applications, however, and I do not see it as having any particular relevance in proceedings initiated under S.242 of the WC Act.)

38 In the circumstances, I see no justification for intervention in support of Ms Fox in this hearing and I dismiss the application before me.

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