Hofman v Penford Australia Limited

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v Workcover Authority of New South Wales ) Full Commission of Industrial Relations Commission of NSW, [Wright P, Boland J, Connor C], [2006] NSWIRComm 108 (26 June 2006). CASES CITED: IGA Distribution Pty Ltd v Moses (No 2) (2002), Full Commission of Industrial Relations Commission of NSW, [Wright P, Walton VP & Redman C] 114IR @ 307. Leticia Cansino v South Western Sydney Area Health Service, Full Commission of Industrial Relations Commission of NSW, [Hungerford, Marks JJ O'Neill C], IRC No. 1754 of 1998, 23 August 1999. R v Board of Trustees of the Science Museum, Court of Appeal (Eng), Criminal Division, [Steyn LJ, Garland & Rougier JJ], (1993) 3All ER, at 853.

HEARING DATES: 20/02/08-21/02/08, 28/02/08

APPLICANT Mr S Mueller, for National Union of Workers LEGAL REPRESENTATIVES: RESPONDENT Mr M Waring, solicitor, McCarthy Ausgroup Lawyers

DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

National Union of Workers, New South Wales Branch (on behalf of Richard Hofman) v Penford Australia Limited

Application by National Union of Workers on behalf of its member Richard Hofman for reinstatement of an injured employee pursuant to section 242 of the Workers Compensation Act 1987.

1 This matter involves an application made pursuant to section 242 of the Workers Compensation Act 1987 (the Workers Compensation Act). The application was made by the National Union of Workers, New South Wales Branch (NUW), on behalf of Richard Hofman (the applicant). 2 The application for reinstatement of an injured worker was filed in the Office of the Industrial Registrar on 5 September 2007. The application named the respondent employer as Penford Australia Limited (Penford). Proceedings in the matter have included an Inspection and Hearing conducted over two days in Tamworth. Further proceedings by way of final submissions were held in Sydney on 28 February 2008. BACKGROUND 3 The applicant is a man who was some forty seven years of age at the time of his dismissal on 15 August 2007. The applicant had worked for Penford for a period of approximately eleven years and five months. The applicant was engaged in a position described as a Plant Operator and he worked at the Penford production facility located in Tamworth. The Penford production facility in Tamworth is involved in the production of food ingredients and additives. 4 On 1 January 2005, the applicant was working in an area of the Penford Tamworth production facility described as the Dextrin Plant. The applicant was performing some cleaning and maintenance work in the Dextrin Plant when he suffered an injury. In brief, the applicant slipped, and to prevent a significant fall he grabbed hold of a beam and this action induced some injury to his neck and shoulders. The workplace injury sustained by the applicant on 1 January 2005, was immediately reported to relevant officers of Penford, an injury report form was completed, and although the applicant continued to work for the remainder of the shift, the pain associated with his injury persisted such that he sought medical advice. 5 The applicant's treating General Practitioner recommended that the applicant continue to work on selected duties and provided a medical certificate that stipulated restrictions in respect to the weights that the applicant might be required to lift. Initially the applicant's medical restrictions stipulated that he would not be able to lift more than two kilograms and to not lift any weight above shoulder height.

6 From January 2005 until approximately March 2005, the applicant was specifically allocated to work in one particular part of the production facility described as the Starch Laboratory. The Starch Laboratory is one area of the production facility where there is less requirement for Plant Operators to lift heavy objects. Plant Operators are often required to lift and reposition 20 kilogram bags of various products, a task described as "bagging off". Initially the applicant was allocated work in the Starch Laboratory on reduced hours. To begin with he worked for only four days a week for three hours each day. 7 From approximately March 2005 until about June 2005, the applicant was allocated work in the office area of the Penford production facility. The applicant worked in the office performing basic clerical tasks such as data entry. The applicant worked in the office for only four days a week for two hours a day and this was subsequently increased to six hours per day. 8 From about July 2005, the applicant's office work was expanded to include some quality control functions and associated tasks which were consistent with the lifting restrictions that were maintained by the applicant's treating General Practitioner. 9 In about October 2005, the applicant was reassigned work in the Gluten Plant of the Tamworth production facility. Whilst working in the Gluten Plant, the applicant's hours of work increased to eight hours per day over four days a week. The applicant worked in the Gluten Plant until about January 2006. At about this time the applicant was reassigned work back in the Starch Laboratory. Initially the applicant worked in the Starch Laboratory for eight hours a day over four days a week. The applicant continued to work in the Starch Laboratory up until his dismissal in July 2007.

10 In about February 2007, the applicant returned to full time hours of work involving twelve hours a day four days a week. Initially the applicant did not return to his pre-injury assigned shift called the Gold Team and therefore, between about February 2007, and April 2007 he worked in the Starch Laboratory for each of the various shifts as opposed to being specifically re-allocated to the Gold Team. 11 In approximately April 2007, the applicant was returned to work attached to the Gold Team but confined to work in the Starch Laboratory. The applicant was performing this work in the Starch Laboratory attached to the Gold Team, when he was given a letter of dismissal dated July 5 2007. At the time of the applicant's dismissal and at all relevant times thereafter, the applicant's medical restrictions have involved a lifting restriction of not more than ten kilograms and that the applicant is not to lift weights of five kilograms or greater above his shoulder. 12 At the time of the applicant's dismissal he was working in the Starch Laboratory performing work consistent with the medical restrictions provided by his treating General Practitioner. Ordinarily, without such medical restrictions, the applicant would be required to work in other sections of the production facility as opposed to being permanently allocated work in the Starch Laboratory. The permanent allocation of work in the Starch Laboratory was withdrawn by Penford and relevantly the letter of dismissal stated; "In order to operate the plant efficiently, we regret that we can not continue to provide these suitable duties and, therefore, it has become necessary to terminate your service with the Company." Exhibit 1, Attachment RH-1.

13 The applicant then wrote to Penford on 26 July 2007, making application for reinstatement to "...my previous position as plant operator for which I believe I am fit." 2 Exhibit 1, Attachment RH-2. The applicant provided a medical certificate that continued to specify the lifting restrictions of ten kilograms and no greater than five kilograms above shoulder height. The applicant's letter seeking reinstatement also suggested alternative positions for re-engagement in the Starch Laboratory and other sections of the production facility. 14 Penford responded to the applicant's request for reinstatement letter with further correspondence dated August 3, 2007. In this correspondence Penford reiterated it's earlier decision to terminate the employment of the applicant on the basis that "...we are unable to continue to provide ongoing suitable duties with the restrictions indicated." 3 Exhibit 1, Attachment RH-3. 15 Following confirmation of the decision by Penford to maintain the termination of the employment of the applicant, the NUW filed an application pursuant to section 242 of the Workers Compensation Act thus giving rise to these proceedings. 16 It should be noted that there was no issue in respect to the reason for dismissal of the applicant. It was uncontested that the applicant was an injured worker and that he was dismissed because he was not fit for employment as a result of the lifting restrictions that arose from the injury that he had received on New Year's day 2005. THE EVIDENCE 17 The Hearing of this claim for reinstatement included the Commission inspecting the Penford production facility located in the City of Tamworth. The Inspection was conducted at the request of the NUW and took approximately forty five minutes. Shortly after the completion of the Inspection, the formal Hearing of the matter commenced at the Tamworth Court House which is located only a very short distance from the Penford production facility. 18 There were two witnesses called to provide evidence in support of the claim. The applicant was called as a witness and provided the substantial evidentiary material which was supplemented by the second witness for the applicant's case, Mr Robert Bruce Cameron. 19 There were few matters of significant factual contest that required resolution in order to provide for Determination of this application for reinstatement. The evidence provided by both the applicant and Mr Cameron was in large part uncontested and broadly uncontroversial. 20 One important issue of evidentiary conflict arose on the question of the extent to which Penford could accommodate the reinstatement of the applicant. Consequently the Inspection of the Tamworth production facility assisted in providing an understanding of terminology and descriptions given by various witnesses. In particular the evidence provided by Mr Cameron about the operational arrangements that might be relevant to any reinstatement of the applicant was very helpful. Mr Cameron provided clear, direct and accurate evidence that the Commission was readily disposed to adopt and in many important aspects has been broadly uncontested. 21 Penford called a total of four witnesses to provide evidence in resistance to the claim. Medical evidence that was introduced via Ms Rebecca Wolfgang, an Occupational Therapist, provided a generally clear and largely unchallenged summation of the applicant's injury and his subsequent rehabilitation including an apparently stabilised level of disability giving rise to the ongoing lifting restrictions. 22 Evidence that was provided by the other three witnesses that were called for Penford most notably involved the asserted difficulties that would be associated with any reinstatement of the applicant. 23 The substantial evidentiary material for Penford was provided by Mr Henry Segerius, the Operations Manager for the Tamworth production facility. Mr Segerius made the decision to dismiss the applicant and he provided evidence about the basis for making that decision. Mr Segerius also provided evidence about the operational arrangements that would be required to provide ongoing suitable light duties for the applicant. In this respect Mr Segerius provided evidence about the decreased manning levels that resulted from various rounds of redundancies up to and including a recent round of redundancies that occurred in about November 2007, after the applicant had been dismissed. 24 One particularly unfortunate component of the evidence provided by Mr Segerius involved his reference to the applicant having been absent from work for two hundred and seventy six days in the period between 1 January 2005,and his dismissal in July 2007. This reference to a two hundred and seventy six days absence arose from Mr Segerius' oral evidence in cross-examination. Unfortunately following some further questioning and clarification the issue was established such that the initial reference to two hundred and seventy six days off work was misleading. The two hundred and seventy six days figure was an extrapolation from the total number of hours that the applicant had been working less than full time hours as part of his rehabilitation program. Consequently in fairness to the applicant, and as a more accurate representation of the position, there was no evidence to show that the applicant had not attended for any rostered engagement but had instead complied with the reduced hours of work as part of his rehabilitation program. 25 The initial statement by Mr Segerius about the applicant's absence from work as "...276 days he had off work..." Transcript of proceedings, (21/02/08) @ page 30. established a regrettable misrepresentation of the properly understood factual position. This regrettable misrepresentation would not augur well for Mr Segerius if the Commission was required to determine important questions of contested facts arising from conflicting evidence. Fortunately in this instance, the matter is capable of determination without the need for resolution of major questions of contested evidence. THE CASE FOR THE APPLICANT

26 Mr S Mueller from the NUW appeared for the applicant. Mr Mueller filed Draft Orders that if granted, would provide for the reinstatement of the applicant. The Draft Orders provided by Mr Mueller sought that the applicant be reinstated into any of four identified areas named as; (a) Starch Laboratory, (b) Wet Circuit Area, (c) Warehouse, and (d) Office. 27 Mr Mueller submitted that the Commission should make Orders reinstating the applicant into any of the four identified areas (a), (b), (c) or (d). Mr Mueller submitted that the applicant was fit for suitable duties involving the lifting restrictions up to ten kilograms and not more than five kilograms above shoulder height, and that any of the identified areas of the Penford production facility would provide appropriate reinstatement consistent with the applicant's lifting restrictions. 28 Mr Mueller then made submissions which examined each of the four identified sections of the production facility as representing an appropriate basis for reinstatement. Mr Mueller started with the first identified area, (a) Starch Laboratory, and stated that it was the Starch Laboratory that was the applicant's preferred position for reinstatement. Mr Mueller submitted that the evidence confirmed that there was available work in the Starch Laboratory and that the work would be capable of being performed by the applicant, cognisant of his lifting restrictions. 29 Mr Mueller then submitted that the applicant could be reinstated to work in the second identified area, (b) Wet Circuit Area. Mr Mueller submitted that the evidence established that work in the Wet Circuit Area would be suitable for the applicant in all but two respects where the applicant would require some assistance for lifting weights that exceeded ten kilograms. Mr Mueller made detailed submissions about the way in which the assistance could be provided to the applicant, such that work in the Wet Circuit Area would be available without significant disruption to the operations of the production facility generally. 30 Mr Mueller then mentioned the third identified area for proposed reinstatement, (c) Warehouse. Mr Mueller made submissions regarding the applicant's ability to operate a forklift and to work in the Warehouse area where he would only require assistance if breakages occurred and required re-stacking of bags that would involve lifting more than ten kilograms. 31 Mr Mueller further submitted that the applicant could be reinstated into the fourth identified area of operation of the Tamworth production facility, (d) Office. Mr Mueller submitted that the applicant had worked in the office doing clerical functions such as data entry and computer word processing and associated tasks. Mr Mueller submitted that the applicant was fit for work in the office including some associated quality control tasks that he had performed at one stage during his rehabilitation program. Mr Mueller submitted that the applicant could be reinstated to any of the four identified areas, each of which would provide work that was either consistent with the lifting restrictions of the applicant or, which with some minor assistance with lifting, could reasonably be accommodated by Penford. 32 Mr Mueller made further submissions about evidence regarding the reduction in manning numbers that had occurred at the production facility. Mr Mueller submitted that the applicant had not been considered for redundancy and that the evidence did not disclose that there was no employment available for the applicant consistent with the ongoing lifting restrictions. In particular, Mr Mueller said that the respondent Company had not provided any financial evidence indicating what if any, commercial impact would result from any reinstatement of the applicant. Mr Mueller stated that there was no evidence that the Company could not afford to reinstate the applicant. 33 Mr Mueller stressed to the Commission that the reinstatement provisions of the Workers Compensation Act were beneficial provisions and that the Commission should construe that Part 8 of the Workers Compensation Act was established to provide for benefit to injured workers such as the applicant. Mr Mueller referred to Authority that he said was obtained from a Decision in the matter of the Public Service Association and Professional Officers Association Amalgamated Union of New South Wales on behalf of Peter Reilly v. Workcover Authority of New South Wales (Reilly) Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v Workcover Authority of New South Wales ) Full Commission of Industrial Relations Commission of NSW, [Wright P, Boland J, Connor C], [2006] NSWIRComm 108 (26 June 2006).. Mr Mueller referred to the Full Bench Decision in Reilly, particularly in respect to evidence regarding the availability of work at the Tamworth production facility. 34 Mr Mueller also referred to further Authority in the case of IGA Distribution Pty Ltd and Moses (No 2) (Moses) IGA Distribution Pty Ltd v Moses (No 2) (2002), Full Commission of Industrial Relations Commission of NSW, [Wright P, Walton VP & Redman C] 114IR @ 307.. Mr Mueller said that the Full Bench Decision in Moses was applicable to the circumstances in the present case where the employer had unilaterally withdrawn the availability of light duties work. Mr Mueller submitted that the Authority obtained from both the Reilly and Moses Decisions should persuade the Commission to grant the claim and reinstate the applicant.

THE CASE FOR THE RESPONDENT EMPLOYER 35 Mr M Waring, solicitor, appeared for the respondent employer, Penford Australia Ltd. Mr Waring commenced his submissions by reference to what he described as the leading Authority arising from the reinstatement provisions that were previously contained in the Industrial Relations Act 1996. Mr Waring said that this Authority involved a Full Bench Decision in the matter of Leticia Cansino v. South Western Sydney Area Health Service (Cansino) Leticia Cansino v South Western Sydney Area Health Service ) Full Commission of Industrial Relations Commission of NSW, [Hungerford, Marks JJ O'Neill C], IRC No. 1754 of 1998, 23 August 1999. . Mr Waring said that the Authority in Cansino supported his submission that there was no question that the applicant was not fit for the position of Plant Operator and therefore the Commission could not be satisfied that the applicant was fit for that kind of employment. Therefore according to Mr Waring no Order could or should be made because of this stipulation contained within section 243(2) of the Workers Compensation Act. 36 Mr Waring submitted that the evidence disclosed that the role of a Plant Operator involved work in different areas of the factory. In particular Mr Waring stated that there was a general rotation of Plant Operators between different sections or areas of the factory. Therefore Mr Waring said that no Order could be made reinstating Mr Hofman to the position of Plant Operator as he was simply unfit to perform the role of a Plant Operator. Mr Waring stressed that the applicant's injuries simply did not allow him to perform the functions of a Plant Operator. 37 Mr Waring made further submissions regarding any prospect that the Commission might reinstate the applicant to employment other than that of a Plant Operator, and as had been suggested by Mr Mueller in respect to the four identified areas of the production facility. Mr Waring submitted that the Commission needed to consider matters such as the skill level of the applicant, training that he had had, any mental and physical abilities to perform other roles that impact upon the business, and the cost upon the business of any reinstatement into the alternative positions. Mr Waring submitted that the applicant's level of training and other skills, would provide significant impediment to reinstatement into the office position as suggested by Mr Mueller. Mr Waring submitted that it was not appropriate for a reinstatement Order to be made which would impose a training requirement on the Company because that would create a financial burden on the Company to provide such training for a reinstated employee. 38 Mr Waring then referred to the proposition that the applicant suggested reinstatement into the Starch Laboratory. In this regard Mr Waring said that there was no dedicated Starch Laboratory Operator and that if the applicant was reinstated to such a position it would mean that other Plant Operators would not get a rest from the physical aspects of work in other areas of the Plant. Mr Waring said that the Plant Operators would ultimately be subjected to potential increase in injuries and other side effects such as the lessening of moral if they were unable to rotate into the Starch Laboratory position because it had been the subject of reinstatement of the applicant. 39 Mr Waring made further submissions about the inability to provide for reinstatement of the applicant into the Wet Circuit Area and he mentioned some proposed restructuring that would potentially require greater rotation and diversification of roles that had previously been relevant for work in the Wet Circuit Area. 40 Mr Waring also submitted that any reinstatement of the applicant into the Warehouse Area would create significant potential difficulties in the event that breakages or spillages occurred and the applicant would then be unable to lift the bags, all of which were at least twenty five kilograms in weight. 41 Mr Waring made further submissions which noted that the redundancies that had occurred over many years at the production facility had reduced the ability of Plant Operators to assist others as they may have done in the past. Mr Waring said that the significant numbers of reduction in Plant Operators would mean that the respondent could not accommodate a person that required assistance whenever there was a need to lift more than ten kilograms. Mr Waring said that the evidence of the redundancies was enough to suggest that any reinstatement would mean that perhaps the applicant or another employee would be subject to becoming excess to the levels that are required for the business and would thereby be redundant. 42 Mr Waring made a further submission which asserted that the Commission had no jurisdiction to deal with the application. In this submission Mr Waring asserted that the applicant's letter seeking reinstatement sought reinstatement to a position that was more advantageous than the position that he had held as a Plant Operator. Mr Waring said that the applicant had sought reinstatement to perform work as a Plant Operator consistent with his lifting restrictions. This would, according to Mr Waring, mean that he would not rotate through all of the various pieces of plant and equipment that a Plant Operator might ordinarily operate and for this reason it would be more advantageous. 43 Mr Waring submitted that the applicant's claim under section 242 of the Workers Compensation Act is predicated upon satisfaction of the preceding section 241, and that the applicant had not made an application for reinstatement that conformed with the requirements of section 241(2). Therefore according to Mr Waring, for the application to be heard by the Commission, the applicant must have properly brought claim for reinstatement into a position which was no more advantageous. Mr Waring said that the applicant's letter for reinstatement involved reinstatement into a more advantageous position, namely the Plant Operator position subject to the lifting restrictions. Therefore according to Mr Waring the claim made under section 242 was without jurisdiction. 44 Mr Waring made a further submission about a reinstatement Order of the applicant that might provide potential risk of causing re-injury to the applicant. Mr Waring referred to an Authority involving the case of the Queen v. Board of Trustees of the Science Museum. R v Board of Trustees of the Science Museum, Court of Appeal (Eng), Criminal Division, [Steyn LJ, Garland & Rougier JJ], (1993) 3All ER, at 853. This Decision of the English Court of Appeal, was said by Mr Waring to provide the Commission with a basis upon which to refuse reinstatement of the applicant as there was potential for the applicant to be re-injured at work. Mr Waring suggested that the Commission should have regard for the variety of heavy lifting aspects of the work of a Plant Operator at the Tamworth production facility and that to reinstate the applicant into such employment would create potential for re-injury. 45 Mr Waring summarised his submissions by stressing that the production facility had significant reductions in manning levels such that reinstatement Orders would not be reasonable when considering the financial costs to the employer as well as any dislocation, interruption or interference in the employer's operation. Mr Waring urged the Commission to reject the application and to refuse any reinstatement of the applicant.

CONSIDERATION 46 The consideration of this matter can logically commence with a brief review of the relevant Legislative provisions that provide for the claim to be made. Part 8 of the Workers Compensation Act, Protection of Injured Workers from Dismissal, is essentially a replication of the former provisions of Part 7 of Chapter 2 of the Industrial Relations Act 1996 (the Industrial Relations Act). The transfer of these provisions from the Industrial Relations Act to the Workers Compensation Act appears to have been in direct consequence of the operation of the Workplace Relations Amendment (Work Choices) Act 2005. Consequently most Case Law on the issue of protection of injured workers arises from the almost identical counterpart provisions that were previously contained within the Industrial Relations Act and its predecessors. 47 At the outset it is important to recognise that the protection of injured workers' provisions now contained in the Workers Compensation Act, represents beneficial Legislation. That is, the Legislation is designed to provide for benefit to particular individuals, injured workers, who are dismissed from employment. Broadly, the nature of the benefit involves the prospect that an injured worker would not be dismissed as a consequence of unfitness for work as a result of an injury received at work. Accordingly the Legislation provides for the capacity for reinstatement of an injured worker who is dismissed because he or she was not fit for employment as a result of the injury received at work. 48 Although broadly beneficial, the Legislation is also punitive in that section 248 establishes that it is an offence if an employer of an injured worker dismisses the worker because he or she is not fit for employment as a result of the injury, and that dismissal occurs during a relevant period after the worker first became unfit for employment. 49 Although it was not argued in this case, the applicant sustained an injury on 1 January 2005, but the evidence, although not entirely satisfactory on this point, indicated that the applicant at no stage became unfit for employment. In fact it appeared that the applicant was at all relevant times fit for employment but with some restrictions and other conditions attached. 50 Although the question of whether the dismissal of the applicant may have constituted an offence under section 248 of the Workers Compensation Act was not a matter that was agitated during proceedings, it is mentioned as being relevant to the nature of the Legislative provisions. Consequently it is clear that the provisions of Part 8 of the Workers Compensation Act must be considered as Legislation specifically designed to provide significant protection and even penalty in circumstances where injured workers are dismissed because of unfitness for employment as a result of an injury sustained in the course of their employment.

51 Having regard for the nature of the Legislation enacted to protect injured workers from dismissal, the circumstances of the applicant would, upon even a perfunctory contemplation, likely transgress the overriding intention of the Legislation. Although the applicant had been on a protracted rehabilitation program for about two and a half years, he had continued to perform work subject to certain restrictions. These restrictions were gradually reduced to enable the applicant to work full time hours with a lifting restriction of ten kilograms and not more than five kilograms above shoulder height. The respondent employer, Penford, simply decided to no longer make work available if the lifting restrictions be included. 52 The evidence disclosed that there was no particular event, issue, medical report, or changed operational circumstance, that could be identified as precipitating the decision to no longer provide the applicant with work subject to medical restriction. It appeared that the decision to dismiss the applicant by way of removal of suitable duties, arose simply as a consequence of the passage of time. 53 Consequently the circumstances of the applicant's dismissal might be described as exactly the sort of dismissal that Part 8 of the Workers Compensation Act was designed to avoid and/or remedy, and/or penalise. 54 Although there would be understandable frustration associated with a rehabilitation program that involved slow progress towards the return to pre-injury duties over a two and a half year period, such frustration would need to be carefully handled and moderated against two important countervailing factors. 55 Firstly, there should be recognition that the frustration with the slow and lengthy rehabilitation program would be felt by the applicant as much as by the employer. Secondly, there must be recognition that the applicant was injured in the course of his employment and that his apparent ongoing incapacities arose not from some external misadventure, but from an injury sustained during the performance of his work. 56 It was therefore disturbing that the evidence disclosed that the dismissal of the applicant occurred with very little consultation. There had been no further medical assessment made prior to the decision to dismiss the applicant. The substantial body of medical evidence about the prognosis for the applicant was created almost twelve months before the dismissal. 57 Further, if the applicant's medical condition had stabilised and that does now appear to be the case, Penford did not engage the applicant in any process that might endeavour to accommodate his particular circumstances before it decided to dismiss. It is well established that in circumstances where an employee is unable to fulfil all of the inherent requirements of the job, it remains necessary for the employer to take reasonable steps to accommodate any limitations and only after proper examination of potential alternatives should there be any move towards dismissal. 58 The requirement for careful and proper consideration of alternatives to dismissal is often imposed on employers in unfair dismissal matters where the employee's inability to fulfil the inherent requirements of the job may have arisen from external misadventure as opposed to a workplace injury. Obviously in the case of an injured worker, even greater care to explore alternatives that might permit the accommodation of any medical restriction, should be fully exhausted before there be any contemplation of dismissal. 59 Although the proceedings in this instance did not involve an unfair dismissal claim, it would seem that the circumstances of the applicant's dismissal might have readily satisfied the notions of harsh, unreasonable, and unjust if such a claim had been available to the applicant. In many respects the approach to the defence of the claim has by implication, recognised certain deficiencies in the employer's process and basis for dismissal. At no stage of the proceedings was there any issue taken as to the presumption for the reason for dismissal. Instead the respondent employer sought to defend the claim by agitation of various issues that were said to provide impediment to any Order of reinstatement. 60 Although the applicant was apparently precluded from making an unfair dismissal claim, (apparently as a consequence of the enactment of the Workplace Relations Amendment (Work Choices) Act 2005), the nature of the respondent employer's defence manifests as akin to a concession that the dismissal was wrong, but that there was impracticality to provide any remedy involving reinstatement. However the terminology that is used in the provisions relating to protection of injured workers is different from the impracticality that has been a principal test for reinstatement in unfair dismissal cases. In this regard section 243(2) of the Workers Compensation Act is worthy of close examination, the relevant provision reads as follows: "(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". 61 As can be seen from the provisions of section 243(2) reinstatement is to "employment of the kind" and not a "position" as is mentioned in the relevant section of the Unfair Dismissal provisions, section 89(1) of the Industrial Relations Act. The notion of a kind of employment has been established to be far broader than the notion of a position. It would seem that the distinction might translate into the following example relevant to the circumstances of the applicant. 62 The applicant was employed in a position referred to as a Plant Operator. The Plant Operator position which was the subject of some detailed evidence during the course of proceedings, generally involves the performance of a range of tasks in different sections of the production facility at Tamworth. The position of Plant Operator would not normally involve work in the office or the quality control laboratory or even the warehouse functions. There were certain established limitations to the work unusually performed by a person in a position of Plant Operator. 63 The kind of employment that the applicant had been engaged in during his period of rehabilitation traversed many of the established limitations that would apply to a Plant Operator position. For instance the applicant worked for some time in the office doing clerical work including data entry. Similarly, the applicant worked in some fixed role in the Starch Laboratory that would not usually occur for a person working in a Plant Operator position. The evidence was that in most instances, but importantly not all cases, Plant Operators rotated through a variety of different tasks and areas of operation of the production facility.

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). 68 Although there is an obvious desirability for the rotation that Penford sought to have applicable to Plant Operators, the evidence established that there was no fixed requirement for all Plant Operators to rotate through all sections of the production facility. In particular, the evidence established that there was at least one Plant Operator who was assigned particular tasks so as to avoid the most strenuous tasks such as "the bagging off". The important evidence emerged during the cross-examination of Mr Cameron and the following extract from transcript is relevant: "Q. Carl Humphries? A. Carl Humphries? No, he's 62, he's still on the plant He's still at the plant, he's on my team, but I just leave him on either the starch lab or .. (not transcribable).. I won't put him on a bag mill, he's too old. Q. He's too old? A. Well, I consider him too old. I think he's more than likely to have an injury if he is. Q. Okay. A. Because the bagging off plants are quite demanding". Transcript of proceedings , (20/02/08) @ pages 60-61.

69 This evidence about the arrangements made to facilitate the sixty two year old, Mr Carl Humphries provides clear basis to establish that Penford would have employment of a kind that could be described as engagement in the Starch Laboratory and other areas, avoiding heavy lifting and for which the applicant would be fit. Therefore it would seem that the preferred Order of reinstatement that the applicant has sought could be made, particularly as the Starch Laboratory position was mentioned in the applicant's initial request for reinstatement made to the employer by way of correspondence dated 26 July 2007. 70 The Commission could hold that the position involving work in the Starch Laboratory was comprehended as employment of the kind that the applicant had applied for in the correspondence of 26 July 2007. The evidence about the allocation of Mr Humphries to the Starch Laboratory, together with the evidence provided by way of notes of a Penford team meeting during which it was recorded that "Light Duties will be given based on the situation." Exhibit 5 at page 2. ensures that there could be no doubt that work in the Starch Laboratory or elsewhere in the production facility under lifting restrictions, would be employment of a kind that Penford has available. 71 However reinstatement to work confined to the Starch Laboratory would not be in the best interests of either the applicant or Penford. The evidence has disclosed that the applicant is capable of performing a variety of different useful functions in various areas of the Tamworth production facility. It would be unnecessarily restrictive to prescribe reinstatement to any particular area or areas of the production facility. Even if the Commission was disposed to describe reinstatement Orders to employment as a Plant Operator subject to any medical restrictions, this would avoid the prospect that the applicant might be usefully engaged for some period in either the office or the warehouse or some other part of the Tamworth production facility. It would seem that the best interests of the applicant and Penford would be served if the Commission made any reinstatement Orders as broad as practicable so as to provide for greatest potential utilisation of the applicant subject to his lifting restrictions. 72 The issue of the redundancies that have occurred particularly after the applicant's dismissal, provided evidence of some difficulties with the practical utilisation of employees that are not fully fit so as to be unable to perform some of the more arduous bagging off work. Any employer would probably want the fittest and healthiest workers that a modern society could provide. However human beings all have different physical and mental capacities which invariably fluctuate over time. A modern, developed and humane society will endeavour to accommodate the varying capacities of individuals. 73 In the employment context balance needs to be achieved between optimum efficiency and human dignity. Laws like the protection of injured workers from dismissal provisions of the Workers Compensation Act are made to provide some balance and in the present circumstances it is clear that the applicant is unlikely to ever attain optimal fitness to be able to undertake the arduous bagging off tasks at the production facility. However it is clear that he is capable of doing other useful work and consistent with the way that other employees are treated, some accommodation for his particular incapacities should be facilitated.

CONCLUSIONS 74 This application for reinstatement of an injured worker has not involved any contest about the reason for dismissal of the applicant. Instead this matter has concentrated upon any impediment that may exist to provide for reinstatement of the injured worker. 75 Upon a careful examination of the evidence it has become clear that the employer does have available employment of a kind for which the applicant is fit. Although the applicant has sought to be reinstated to some specified role or roles within the employer's Tamworth production facility, a broader utilisation for the applicant should be available. 76 Although the application to the employer for reinstatement made broadly in conformity with section 241 of the Workers Compensation Act, did not use any broad description for the kind of employment that the applicant sought to be reinstated to, the Commission is not constrained to follow the descriptions that were used either in the application to the employer for reinstatement or the Draft Orders that were advanced on behalf of the applicant during proceedings. 77 The applicant has ongoing medical restrictions in the form of lifting limits. The evidence has disclosed that Penford has employment available at its Tamworth production facility that will comply with these requirements. Further, having carefully examined the evidence, the Commission concludes that the employer can facilitate employment of a kind for which the applicant is fit without unreasonable cost impost or operational difficulties. 78 Consequently the Commission is prepared to provide for Orders of reinstatement as broadly sought by the applicant.

In this matter, for the reasons outlined herein, I have determined that the dismissal of the applicant is one that requires intervention by way of Order made under section 243(2) of the Workers Compensation Act. Therefore I hereby make the following Orders:

ORDER 1 The Commission Orders, pursuant to section 243(2) of the Workers Compensation Act, that Penford reinstate the applicant to employment in connection with the Tamworth production facility. This employment may include, but not be limited to work in the following areas: a) Starch Laboratory; b) Wet Circuit Area; c) Warehouse; and d) Office. ORDER 2 The Commission Orders that the applicant is to be reinstated to the employment of the kind herein stipulated as soon as practicable, and within twenty one days from the date of this Decision. ORDER 3 The Commission Orders, pursuant to section 243(4) of the Workers Compensation Act, that Penford pay to the applicant an amount which equates with the remuneration that the applicant would, but for being dismissed, have received in the intervening period between dismissal and reinstatement, less any amounts received as payment in respect of Workers Compensation or derived from alternative employment. This amount is to be paid as soon as practicable, and within twenty one days from the date of this Decision. ORDER 4 The Commission Orders, pursuant to section 246(1) of the Workers Compensation Act, that the period of employment of the applicant with Penford shall be taken not to have been broken by the dismissal. The intervening period between the date of the application by the applicant to Penford for reinstatement, and reinstatement of the applicant, shall be counted for all purposes as a period of employment. oooOOOooo

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