Jenkins v Secretary, Ministry of Health

Industrial Relations Commission (NSW)|2021-03-26

decision

Before the Commission is an application filed on 21 September 2020 by Mr Kevin Wayne Jenkins (applicant) seeking relief in respect of the dismissal of his employment pursuant to s 84 of the Industrial Relations Act 1996 (NSW) (the IR Act)(application).
The applicant commenced employment with the respondent in 2002 in the role of Wardsperson, initially on a casual basis. His employment was terminated by way of letter dated 16 July 2020 on the basis of his inability to complete the inherent requirements of his position and return to pre-injury duties and the Nepean Blue Mountains Local Health District's (NBMLHD) continued inability to find him suitable alternate employment. The respondent paid the applicant one weeks' pay in lieu of notice.
The applicant claims that he has been unfairly dismissed from his role as Wardsperson by the Secretary, Ministry of Health in respect of NBMLHD (respondent) because:

It was unjust - because the respondent did not meet its statutory obligations under workers compensation law, specifically, s 49 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIMWC Act).
It was unreasonable - because of the respondent's failure to follow the "Injury Management and Return to Work Policy Directive" (the Policy) by not searching for suitable employment for the applicant outside of the NBMLHD and providing him with vocational retraining.
It was harsh - because of the circumstances of the dismissal, including those of the applicant. The applicant had worked with the respondent since 2002 (about 18 years) and is 60 years of age, with a significant back-injury impacting upon his capacity to work, with limited skills.

The respondent says that the termination of the applicant's employment was not unfair for any of the reasons asserted by the applicant.
For the reasons set out herein, I have decided to dismiss the application.

Background

On 28 November 2016, the applicant suffered a lower back-injury in the workplace when moving a patient weighing approximately 130 kg. The applicant's injury was accepted as compensable pursuant to the Workers Compensation Act 1987 (NSW)(WC Act). The applicant's injury was serious and at the time of the hearing, it was still causing him pain, requiring medication.
Due to the injury, the applicant had no capacity for work from 28 November 2016 to 24 March 2017 (approximately 4 months). The applicant was then able to return to work with restrictions. His capacity to work changed over time. From 5 October 2019 to the date of his dismissal, the applicant's Certificates of Capacity provided (set out as they are in the Certificates of Capacity): 1. Work for 8 hours 5 days a week. 2. Lifting carrying up to 5 kg. 3. Pushing, pulling, bending, twisting, squatting, sitting, standing/driving as tolerated. 4. If sedentary duties for 5 min breaks with standing and walking every 20 minutes.
The applicant's substantive role involved, among other things, being able to lift and carry 16kg and above, which was a capacity he did not achieve after his injury, up until the termination of his employment.
The applicant was subject to rolling Recover @ Work Plan's (Plans) from 30 March 2017: Ex A7. From 30 March 2017 to 1 July 2019 (about 2 years) the "recovery goal" contained in the Plans provided for the applicant to "return to pre-injury duties." From 1 July 2019, the Plans mainly reflected the "recovery goal" of the applicant being redeployed to "suitable employment."
From 24 March 2017 to late 2018 (about 1.5 years), the applicant was performing suitable duties in the role of Wardsperson coordinator.
From 26 October 2018, the applicant commenced suitable duties within Emergency Department billing. According to the respondent, these duties were arranged to assist the applicant in gaining skills in medical records: Ex R9 at [32].
In December 2018, the applicant was referred to an external Vocational Rehabilitation provider through Rehabilitation Services for a series of meetings to assist him with skills in resume writing, job applications, interview education and job seeking. These services were paid for by the respondent's insurer, EML: [33] of Ex R9; [13] of Ex R2.
On 15 January 2019, the applicant finished work in Emergency Billing and he returned to suitable duties as a Wardsperson, doing the pathology deliveries and collections until further suitable duties could be arranged: [37] of Ex R9.
In February 2019, the Short Term Equipment Service (STES) in Lemongrove Community Campus made contact with the Rehabilitation Area looking for a person who might be able to assist with work demand in the business unit. The STES provides short-term loans of rehabilitation equipment and aids for daily living to patients of NBMLHD. It consists of three full-time employees, being two Equipment Services Assistants (ES Assistants) and one Supervisor.
Ms Jamilia Howarth, the relevant Department Head of STES, explained that the request was made to enable the site manager, Mr Miller to dedicate time to the management of a particular employee: [11]-[17] of Ex R4.
On 11 February 2019, the applicant commenced in the STES unit, performed some, but not all the duties of the position of ES Assistant, due to his injury. He was engaged in administrative and very light cleaning duties: Ex R4 at [18]. The applicant was supernumerary, meaning his work was not funded by the STES area: Ex R2 at [15]. The applicant worked in STES for a period of about 4.5 months, until 28 June 2019.
On 14 May 2019, the respondent identified a role that might be suitable to the applicant, namely the position of Emergency Clerk Administration Officer Level 3 at Nepean Hospital (the Emergency Clerk role). A Workplace Assessment was undertaken, and a trial arranged for the applicant, with an induction process to commence from 1 July 2019: Ex R9 at [44]-[47]; Ex R2 at [16].
On 29 July 2019, the applicant commenced in the Emergency Clerk role on a trial basis in the Emergency Department. The trial was terminated on 16 August 2019, after concerns were raised by the applicant's managers with respect to his performance and capacity to fulfil the requirements of the role.
On 19 August 2019, the applicant resumed suitable duties in the STES, where he remained for about 4 months, finishing on or around 12 December 2019.
In October 2019, a Skills Assessment Report was completed in relation to the applicant to confirm his strengths and difficulties in finding alternate employment. In addition, an assessment was completed to establish whether the applicant would be suited to the positions of Switchboard Operator and Ward Clerk. It was determined that the role of Ward Clerk would be suitable for the applicant, but not Switchboard Operator. According to the respondent, the applicant was provided with an opportunity to undertake suitable duties as a Ward Clerk in November 2019, to assist him in gaining the skills required for a permanent role, however, he declined that opportunity, purportedly on the basis that he did not want a Ward Clerk role for reasons including that it would not attract the same penalty rates he enjoyed in his substantive position: Ex R9 at [65]; KB-19.
From 6 January to 28 February 2020, the applicant undertook a job trial as a Ward Clerk in Ward N2G at Nepean Hospital (the Ward Clerk role). Ms Suzanne Rahkala, Ward Clerk Manager, described the Ward Clerk role as "the first point of contact or anyone coming on to the ward. Similar to a receptionist, they meet and greet, do filing tasks, assist the nursing staff, order diets, bed clean and general administrative duties. The ward clerk is also responsible for keeping track of patients going out of the ward": Ex R7 at [9]. The applicant commenced in Ward N2G from 13 December 2019 to spend time performing duties and gaining experience shadowing staff. The Ward Clerk role trial was not successful. At the conclusion of the Ward Clerk role trial, the applicant commenced a period of leave.
On 9 April 2020, the applicant commenced performing suitable duties in the Wardsperson department at Nepean Hospital. Due to the applicant's medical restrictions, he was unable to perform all the duties associated with that role: Ex R9 at [72]. The applicant remained in these duties until his dismissal on 20 July 2020.
On 1 May 2020, Ms Melanie Barlow, Human Resources Business partner, attended a meeting with the applicant, Mr Colin Timms of the HSU and Mr Sean Dickson (Patient and Facility Logistics Manager). During this meeting, the applicant was informed that the respondent had reached the point that they had exhausted available options to redeploy him into a permanent role. The applicant was informed of the process moving forward, including that he would be provided with an opportunity to respond to a letter that would be provided to him in about a week: Ex A1 at CT-1.
On 4 May 2020, Ms Barlow provided a copy of a brief to the General Manager of the NBMLHD in respect of the applicant's employment, entitled, "Review of Mr Kevin Jenkins (26109184) contract of employment" (Brief). The Brief recommended the applicant's employment be terminated on medical grounds due to his inability to return to pre-injury duties and to find suitable alternate employment within LBMLHD: Ex A3, KJ-9.
On 5 May 2020, the General Manager approved the preliminary decision to terminate the applicant's employment, subject to the applicant's response.
On 19 May 2020, Ms Barlow emailed the applicant a copy of the Brief and attachments as approved by the General Manager, seeking a response by 29 May 2020: Ex R2 at pp 8 - 112.
On 29 May 2020, the applicant provided a response to the Brief in the following terms: "In response to the review of my work contract dated 19/05/2020, I have worked for Nepean Hospital since 2002 without any blemishes on my personal file. I chose to leave the catering industry to make a change in my work life to serve a purpose to give back to the public and to help people in their hour of need. I gave up a lot of my family life to serve this purpose and this would include Easter and Christmases. In that period I had a new daughter who would miss out on those times with her father. The review put in front of me in parts makes me look as if I am slow and incompetent, and I find this to be defamatory and implies that I am unable to perform in tasks put before me when I know this not true as mentioned in this review. I spent a period of almost 12 months with STES where on finishing with that placement I received a glowing appreciation from the head of department and STES Supervisor. During that 12 months I was responsible for the following- • Daily EFTPOS settlements written up and scanned/emailed to revenue • Daily equipment return processing. • Daily client letters and reminders processed and posted. • Writing up cold call/difficult equipment recovery requests. • Follow up calls to prescribers. • Scheduling/arranging equipment collection when requested. • Counter customer service. • Setting up loans with new customers. • Arranging loan extensions. • Stock write offs and add on. Many other administration duties, this position is equivalent to a level 2 Administration Officer. The approach to these work trials as (sic) so far has placed me in a position where I am expected to adapt from the minute I walked in on the first day. The last position on N2G was a classic example of this. Over time I picked up what was expected of my position and in the final days of this work trial I had no problems performing the duties of the position. At the same time of this work trial I was suffering emotional problems, as my mother was going through some major health problems at home and she was finally admitted as a patient of N1F and displaying strange behavior. In the beginning of this, my emotional problems and concerns were brought to the attention of the ward clerk manager, Fiona Riger and N2G NUM. So at times it was very hard to concentrate on my duties on N2G and what was expected of me. At times I may have been seen to be isolating myself and seen as unhappy and not a welcoming person to the staff around me. My mother is now a full time resident of The Royce. My time on the first work trial in the ED was only 2 weeks and 2 days and at times I felt pressured as I was watched by staff and the Administration Manager. While in Triage, learning operations at times procedures weren't straight forward, as tracking down patient's details can take time, and therefore caused delays. I was never allowed to settle into this position because I was watched and staff would report to Administration Manager after each shift and no sooner they exited I was call (sic) in. There was no training with customer service with the ED work trial for me, but I noticed that other staff were given that chance. I felt that this wasn't a fair job trial as I have learnt since the termination that the HR Business Manager and the ED Mangers were in disagreement over my placement in the ED and didn't want me there. That information was given to me by HR Business Manager. So I really didn't have a chance before entering the ED. On the 01/05/2020, I had a meeting with the HR Business Manager, Patient and Logistics Manager and a phone hook up with Colin Tim's (sic) from the HSU. In that meeting it was disclosed from the HR Business Manager that Nepean Hospital Managers don't like taking on injured workers who return to work and are been placed in their department, and this has been proven by my experiences in the ED Department, as they prefer to interview and select their own incoming staff. So summing up I really didn't have a fair job trial where I was wanted and that perseverance, consideration and allowances for my ability to progress to be successful in this position. I feel I was tolerated in these job trials just to follow protocol with no mind to give me a position, but when I was working for STES which was a non work trial, I had almost 12 months where I was respected and welcomed and they trusted me to run the front line business of STES, and they could leave me as the only person in the unit to run operations and have peace of mind knowing they could go as far as Lithgow. Finishing up there I had messages of appreciation from Jimila Howarth, the Head of the department & Steven Miller thanking me. So finishing up it clearly shows there is a problem for me to return to work in a new position as perseverance and fairness is not on the plate by Nepean Hospital Managers. If I am not treated with the proper fairness in my response to this review, I am prepared to take this further."
On 20 July 2020, Ms Barlow called Mr Jenkins and informed him that a decision had been made to terminate his employment. He was informed that he would be paid notice in lieu and reminded of the Employee Assistance Program and asked to return the respondent's property and his ID.
After this telephone conversation, Ms Barlow emailed a copy of a termination letter to the applicant from the General Manager, which was in the following terms: "Dear Mr Jenkins, Reference is made to your contract of employment with Nepean Blue Mountains Local Health District (NBMLHD). On 19 May 2020 you were provided with a copy of a report recommending your contract of employment be terminated on the basis of your inability to complete the inherent requirements of your position and return to pre injury duties, and NBMLHD's continued inability to find you suitable alternate employment. I acknowledge receipt of your written response which was received on 29 May 2020, and provided to me as the executive decision maker. Having considered the matter, I wish to advise that I have decided to proceed with the recommendation to terminate your employment with Nepean Blue Mountains Local Health District. The termination is effective from the date of this letter. You will be paid one (1) weeks' salary in lieu of notice in accordance with the Health Employees Conditions of Employment (State) Award and in addition, any eligible leave entitlements payable to you. Please ensure you return any hospital property, including your ID card, uniform and keys as soon as possible to your manager or to the Security Department. If you require any further information in relation to this matter please contact Melanie Barlow, HR Business Partner…."
On 4 August 2020, the applicant commenced proceedings in this Commission claiming that his dismissal was unfair.

Relevant legislation and legal principles

The principles underpinning the Commission's jurisdiction in the context of a s 84 application are well known. The fundamental question under s 84 of the IR Act is whether the dismissal was 'harsh, unreasonable or unjust'. These terms are 'ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated': Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20, 28 cited in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at p 467.
The Full Bench has stated in Corrective Services NSW v Danwer [2013] NSWIRComm 61 at [21]: "It has been said those words constitute a "tautological trinity" (Davies v General Transport-Development Ply Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a "tautological trinity". As it was stated in Byrne: 'It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.'"
Section 88 of the IR Act relevantly provides that the following matters may be considered in determining whether the dismissal was unfair: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account - (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and … (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant.
The applicant claimed that the dismissal was unjust because the respondent was in breach of its obligation to provide suitable work as provided for at s 49 of the WIMWC Act, which provides: 49 Employer must provide suitable work (1) If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker. Maximum penalty - 50 penalty units. (2) The employment that the employer must provide is employment that is both suitable employment (as defined in section 32A of the 1987 Act) and (subject to that qualification) so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was at the time of the injury. (3) This section does not apply if - (a) it is not reasonably practicable to provide employment in accordance with this section…
In these proceedings, the applicant argued that he was denied suitable employment. Section 32A of the WC Act provides the following definition of suitable employment: suitable employment, in relation to a worker, means employment in work for which the worker is currently suited - (a) having regard to - (i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and (ii) the worker's age, education, skills and work experience, and (iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and (iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and (v) such other matters as the Workers Compensation Guidelines may specify, and (b) regardless of - (i) whether the work or the employment is available, and (ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and (iii) the nature of the worker's pre-injury employment, and (iv) the worker's place of residence.
Further consideration is given to the applicant's argument that the respondent breached its obligations pursuant to the workers compensation scheme later in this decision.

Applicant's evidence and submissions

The applicant relied upon the following written witness evidence: 1. Statement of Mr Colin Timms dated 28 September 2020 (Ex A1). Mr Timms is a Member Services Officer employed by the HSU, representing the applicant. The applicant also relied upon the notes of Mr Timms from a meeting on 1 May 2020 referred to above at [23] (Ex A2). 2. Statements of the applicant dated 28 September 2020 (Ex A3) and 16 November 2020 (Ex A4).
The applicant and Mr Timms were cross-examined. In addition, the applicant relied upon a Functional Capacity Assessment Report (Ex A5) and a Vocational Assessment Report (Ex A6). Both reports were by Rehabilitation Services by Altius dated 8 March 2021 (that is, postdating the dismissal). Also before the Commission was a bundle of 35, Return to Work Plans relating to the applicant spanning the period from 25 March 2017 to 4 August 2020 (Ex A7).
The applicant relied upon submissions filed on 29 September 2020 and further submissions in reply filed 16 November 2020. In addition, to assist the Commission, the applicant filed an Aide Memoire in support of his opening address and a chronology of events.
Mr Slevin for the applicant argued that the dismissal was unjust because the respondent did not meet its statutory obligations under workers compensation law, specifically, s 49 of the WIMWC Act providing that the respondent must provide suitable duties: see [34] above. It was put that the respondent's attempts to find him suitable employment were not proactive, inadequate, and too narrow, noting that there were only two work trials, for the Emergency Clerk and Ward Clerk roles: see above at [17]-[18]; [21]. The applicant submitted that contrary to the respondent's case, the employer did not make efforts for 3 years to find him alternative work and that the period of "action" was between 26 September 2018 and 29 February 2020: Tcpt, 28 April 2021, p 51 (21)-(22).
It was argued that suitable employment has a broad meaning and that the employer's size, along with the vast number of duties that are performed in the workplace are relevant. Specifically, the applicant argued that suitable employment could be a collection of duties, such as those he performed as a Wardsperson and in the STES unit. The applicant argued that there was not a proper basis to withdraw these duties given the obligations upon the respondent under the WIMWC Act and that in any event, the ES Assistant position within STES became vacant at a point when the applicant could have been considered for the role.
Secondly, the applicant argued that the dismissal was unreasonable because of the respondent's failure to follow the Policy: Ex R9 at pp 127-175. The applicant submitted that the process put in place from the time the decision was taken to change the applicant's goal in his return-to-work plan from "return to pre-injury duties" to "find suitable employment" was inadequate. Further, it was argued that the Policy was not followed because the respondent did not assist or look for work outside of the NBMLHD for the applicant and provide him with vocational training.
The applicant contended that the decision to terminate him was procedurally unfair because he did not get an opportunity to meet with the decision-maker before she made her decision. The applicant pointed to the Brief which states under the heading "Key Reasons" that the applicant had undertaken "a number of work trials in various ward areas" of the NBMLHD. It was submitted that it would have been more accurate to state that the applicant had undertaken two work trials. He further argued that the absence of the Chief Executive's evidence before the Commission meant that the applicant was denied in these proceeding an opportunity to test what was in her mind when deciding to terminate his employment.
Finally, it was argued that the dismissal was harsh because of the circumstances within which it occurred, including those of the applicant: Tcpt, 29 April 2021, p 23 (32)-(39).

Respondent's evidence and submissions

The respondent relied upon the following written witness evidence: 1. Affidavit of Ms Melanie Barlow dated 30 October 2020 (Ex R2). Ms Barlow is a Human Resources Business Partner employed at the NBMLHD. 2. Affidavit of Ms Jamila Louise Howarth dated 30 October 2020 (Ex R4). Ms Howarth was the Department Head, oversighting the STES unit. 3. Affidavit of Ms Cyril Mathew dated 30 October 2020 (Ex R5). Ms Mathew is the Nurse Unit Manager of N2G Ward where the applicant undertook the Ward Clerk role trial. 4. Affidavit of Ms Nicolette Mary Footman dated 30 October 2020 (Ex R6). Ms Footman is a Clerical Manager, Emergency Department, NBMLHD. 5. Affidavit of Ms Suzanne Rahkala dated 30 October 2020 (Ex R7). Ms Rahkala is employed as a Ward Clerk Manager at the NBMLHD. 6. Affidavit of Mr Steven James Miller dated 30 October 2020 (Ex R8). Mr Miller is the supervisor responsible for the day-to-day operations of the STES unit. 7. Affidavit of Ms Kristine Anne Benge dated 30 October 2020 (Ex R9). Ms Benge is the Rehabilitation Coordinator, of the NBMLHD.
Ms Barlow, Ms Howarth and Ms Benge were cross-examined. Ms Rahkala, Ms Footman, Ms Mathew and Mr Miller were not required for cross-examination.
The respondent relied upon a significant volume of documentary evidence exhibited to the affidavits of Ms Benge and Ms Barlow. The respondent also tendered the Brief for the Chief Executive signed by her on 16 July 2020, recommending the termination of the applicant's contract of employment (Ex R3).
The respondent filed an Outline of Submission on 2 November 2020 (Respondent's Outline of Submissions) and made oral submissions in support of their case. The respondent also provided the Commission with a chronology of relevant events.
In short, the respondent's case was that the applicant was unable to perform the inherent requirements of his position of Wardsperson and through their "tireless efforts" over a three-year period, they were unable to secure an alternative job for the applicant. The respondent acknowledged that it had obligations to the applicant, including to support him through a process of rehabilitation and providing him with suitable duties. However, they argued their efforts in this respect were reasonable and the dismissal not unfair.
The respondent argued that the applicant was provided with considerable support. This included trials in alternative roles, which the applicant was unable to perform satisfactorily in; the provision of suitable duties when not engaged in work trials to assist in his recovery and enable him to acquire new skills; and the benefit of an external Rehabilitation Provider Services (through their insurer) to assist him to find suitable employment outside of the respondent. The respondent submitted that suitable duties is different to suitable employment and that where it is not reasonably practicable to provide suitable alternative employment to an injured employee, there is no obligation to do so.

Consideration

The task before the Commission in these proceedings is to examine the reasons for the dismissal, their nature and whether they have a basis in fact. Consideration is also to be given to the process and events which led up to the decision to dismiss to determine if the termination of the applicant's employment was harsh, unreasonable, or unjust.
The applicant's employment was terminated because he was not able to complete the inherent requirements of his position as a Wardsperson and return to pre-injury duties; and the respondent's "continued inability to find him suitable alternate employment".
In J Boag & Son Brewing Pty Limited v Alan John Button [2010] FWAFB 4022, the Full Bench of Fair Work Australia (as it then was) stated as follows (at [22]): "When an employer relies upon an employee's incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered."
Although stated in the context of the unfair dismissal provisions contained in the Fair Work Act 2009 (Cth), it is appropriate to consider the applicant's incapacity to return to his pre-injury duties in the context of s 88(b) of the IR Act.
There was no contest in this matter with respect to the applicant's medical condition and the fact that it precluded him from returning to his pre-injury duties as a Wardsperson at the time his employment was terminated.

Was the dismissal of the applicant unjust because of the applicant's capacity for suitable duties and/or the existence of suitable and available employment?

The applicant contended that the respondent had a legal and moral obligation to find him alternative work and that it had breached both. In particular, the applicant claimed that he was able to perform the "suitable duties" in the STES unit and in the Wardsperson department, and that it was unfair and in breach of s 49 of the WIMWC Act for the respondent to withdraw those duties and terminate his employment.
Section 49 of the WIMWC Act does not oblige the respondent to create a "position of suitable duties", on an ongoing basis: see Margaritte Joanne Colefax v Secretary, Department of Education (No. 3) [2019] NSWIRComm 1000 at [91]. Section 49 does not prohibit the respondent from dismissing the applicant because he is unable to perform the inherent requirements of his role provided there are "suitable duties" available. It was not claimed in this matter that the respondent terminated the applicant's employment contrary to s 248 of the WC Act, which prohibits an employer from dismissing an injured worker in particular circumstances.
Contrary to what was put by the applicant, the decision in Riley v WorkCover Authority of New South Wales (2006) 151 IR 396 (Riley) does not stand for the proposition that a decision to terminate an injured employee will be unfair if he can establish on the evidence that there was "suitable" and "available" work at the time of the dismissal. The Full Bench found in Riley that although the applicant, Mr Riley was no longer able to perform the inherent requirements of his role for medical reasons, "it was incumbent on the employer to take reasonable steps to accommodate Mr Riley's limitations; otherwise his dismissal would be, prima facie, harsh, unreasonable or unjust": see [79]-[80]. Specifically, the Full Bench found that: "An obligation remained on the employer to consider other options in order to accommodate Mr Riley's limitation if fairness was to prevail": at [88]. These are the relevant statements of law to be derived from Riley.
In Riley, the Full Bench found that in "the circumstances of this case" it was appropriate to evaluate whether there was work "available" and "suitable" in determining whether the dismissal was unfair, as those words are understood within the context of sub-s 89(2) of the IR Act: see [93]-[95]. In upholding the appeal, the Full Bench determined the Commission at first instance should undertake this evaluation, to dispose of the question of whether reasonable steps had been taken by the respondent to accommodate Mr Riley given his injury. Subsection 89(2) is not directed at determining whether the dismissal is unfair. Rather, it sets out the orders the Commission can make if it finds that a dismissal was harsh, unreasonable, or unjust.
In any case, there is a distinction between whether a position that is "suitable" and "available" pursuant to sub-s 89(2) and whether there are "suitable duties" available as defined by s 49 of the WIMWC Act. It may, for example, be reasonably practicable to provide "suitable duties" for a finite time, while an employee attempts to recover from an injury, but not reasonably practicable to provide those same duties on a permanent basis. There is no obligation upon an employer to provide "suitable duties" to an injured employee indefinitely.
The applicant claimed there was "suitable" and "available" duties for the applicant to undertake within the NBMLHD and withdrawing them made the dismissal unjust. In making this submission, the applicant particularly focused upon the suitable duties performed by the applicant in the STES unit. As set out above, the applicant worked within the STES unit for about 8.5 months, over two periods, initially 11 February 2019 to 28 June 2019 and then from 19 August 2019 to12 December 2019. The STES unit is small, consisting of only three staff, two ES Assistants and one Supervisor, Mr Miller. While the applicant worked in the STES unit, his remuneration was not paid for by the budget allocated to the unit. The applicant was unable to perform all the duties associated with the ES Assistant role and was only engaged in administrative and very light cleaning duties.
Key accountabilities of the ES Assistant role the applicant did not perform included: 1. Deliver to and install equipment in client's homes as per the equipment prescriber's recommendations or standard requirements. 2. Collect equipment from client homes as required, including manual handling and safe transportation. 3. Deliver to, and collect from satellite stores, including maintenance of administrative forms/records, cleaning and maintenance of equipment and general maintenance of the store area. Ensure appropriate stock is maintained at all store sites. 4. Attend to minor repairs of equipment as appropriate tyre inflation, replacement/tightening of bolts and screws, repair of punctures etc. 5. Complete vehicle inspections reports monthly as requested Participate in work site inspections with supervisor.
While there are aspects of these tasks the applicant could complete despite his injury, he was not able to complete all these functions and was not provided with suitable duties in respect of the operational aspects of the role. Although the applicant was unable to perform all the ES Assistant duties, the unit was pleased to have him as he was an "extra resource" they were not required to pay for. On balance, the evidence demonstrated that the applicant was able to perform the suitable duties he undertook to at least a satisfactory level, albeit aspects of his performance, particularly with respect to his demeanour could have been improved.
Ms Howarth gave the following evidence explaining how the administrative and operational aspect of the ES Assistant roles were rostered to reduce the risk of injury (Tcpt, 28 April 2021, p 4 (10)-(31)): Q. Yes, okay. Now, as the department head of STES, are you aware of a - there's a rostering practice that's in place in terms of the sharing of certain work and, if so, can you explain to the Commission what that rostering process is for those who work there? A. Yeah, so STES has three full time equivalent staff and they're all full time, so three staff, the supervisor and then two administrative and manual handling roles, so those two positions are of equal level, but all three will share all tasks, but of the two of the equal level tasks one doesn't do just admin and one doesn't just do cleaning and manual handling, the deliveries and pickups and driving the van, et cetera, so they share and so, you know, as with many jobs, you know, you have your preferences, so Steve just makes sure - the supervisor just makes sure that the load is shared so that someone isn't just always the admin default and someone's not always doing the cleaning and manual handling. Q. Is there a reason for that sharing? A. Yeah, so it's to do with work health and safety, so just making sure that for the repetition because a lot of our work is lifting and installing, so fixing to the different height of equipment, but lifting and getting it ready for staff who come in to pick up equipment to take away, so there's admin roles and then there's some manual handling roles, so it's really just to share that across so that we avoid any manual handling incidences and repetition.
The suitable duties the applicant performed in the STES unit did not constitute a position, "available to, capable of being used by, or at the disposal or within the reach of, the respondent": see [106]-[107] of Riley. It was not reasonably practicable for the respondent to offer the suitable duties as a permanent role on an ongoing basis to the applicant for the following reasons: 1. The applicant was only able to undertake a subset of the duties of the ES Assistant role. Indeed, this is why the applicant did not apply for the ES Assistant role when it became vacant and was advertised. 2. This would have required the creation of a new and unbudgeted role within a very small team and had an unreasonable impact upon the STES unit. This would have interrupted the existing system of work designed to prevent injury as described by Mr Howarth above.
Although the applicant conjectured at other roles within the NBMLHD that may have been suitable to him, there was no evidentiary basis upon which the Commission could conclude that these were "suitable" and "available" roles at the time his employment was terminated.
It follows that the dismissal of the applicant was not unjust because of the applicant's capacity for suitable duties and/or the existence of "suitable" and "available" employment.

Were reasonable steps taken to support the applicant's recovery and redeployment prior to the decision to dismiss him?

The evidence in this matter demonstrates that the respondent appropriately supported the applicant, and his circumstances were managed professionally after he sustained his injury up until the time the decision was made to terminate his employment. There was no cogent evidence of managers orchestrating a process to try to get the applicant "out the door" and/or just "tick all the boxes" to facilitate this: Tcpt, 25 March 2020, p 61 (4)-(8). This is supported by the evidence of Ms Benge that it is rare that the NBMLHD decides to terminate an injured employees' employment: Tcpt, 28 April 2020, p 21 (36)-(47).
In accordance with its legal obligations, the respondent provided the applicant with suitable duties after he returned to work for a significant period, as set out above. Some of the suitable duties the applicant was provided with, for example, in Emergency Billing and STES, were considered appropriate because they would improve his administration skills which would increase his prospects of finding suitable employment on an ongoing basis.
The applicant participated in two work trials with a view of permanent placement (the Emergency Clerk role and Ward Clerk role). I do not accept the applicant's evidence that he was told of "push back" from managers who did not want to "take on" injured workers: Ex A1 at CT-1; Ex A2 at Ex A3 at [19], [42]. This was inconsistent with the uncontested evidence of the respondent's witnesses involved in the trials and not supported by the evidence of Mr Timms in cross-examination (Tcpt, 24 March 2021, p 10 (30)-(33)).
I accept the evidence of the respondent's witnesses that these were genuine trials to see whether the applicant might be able to secure ongoing suitable employment with the respondent. The applicant was not being "set up to fail" as he perceived: Ex A3 at [17]; [33]. I accept the evidence of Ms Barlow that the applicant did not indicate he was unable to perform in customer facing or front-line roles, noting that this was inconsistent with the requests he made to be considered for roles that were customer facing: Tcpt, 25 March 2020, p 86 (37) - p 87 (1).
The applicant received appropriate support from the respondent in the context of the trials. In respect of the trial for the Emergency Clerk role, the applicant was provided with an observation period of 4 weeks where he was required to observe another staff member undertake the relevant duties before he was required to engage in those functions himself: Ex R6 at [13]-[15]. After the applicant commenced the trial, concerns were raised with Ms Footman, the Clerical Manager, Emergency Department. Ms Footman provided verbal and written feedback to the applicant during the trial including in respect of eye contact, customer service, communication skills and the importance of data accuracy. It was determined that the applicant was not the right fit for the Emergency Clerk role, with Ms Footman identifying the reasons for this assessment in a detailed report: Ex R6 at NF7.
In respect of the Ward Clerk role, the applicant was provided with an orientation and observation period with an experienced Ward Clerk (one on one) in N2G ward for 3 weeks before he commenced the trial: Ex R5 at [10]. N2G Ward is a quieter ward within the NBMLHD, primarily caring for long stay elderly patients. When the applicant commenced the trial, he was provided with a support person. Ms Rahkala gave evidence of raising concerns with the applicant with respect to his interactions with a customer whom he called "honey", his time management skills and ability to use his initiative. She stated that when these matters were raised with him, the applicant responded by rolling his eyes: [24] of Ex R 7. In view of concerns raised about the applicant's performance in the role, he was provided with customer service training, and additional one-on-one training on how to complete a discharge correctly. Despite this support, the applicant was deemed unsuitable for the Ward Clerk role.
The applicant's evidence was that he was not supported in the trial as his line manager was not in the ward, he was not allowed to have "teething problems" and the only feedback he was given was negative: Ex A3 at [33]-[37]. The applicant also gave evidence of inappropriate comments being made about his mother's illness by Ms Rahkala, namely, that when he raised these, she said to him, "Leave you problems at the door and don't bring them into the hospital." This allegation was inconsistent with the uncontested evidence of Ms Rahkala: Ex R7 at [38]-[39]. I accept the uncontested evidence of the respondent's witnesses that matters raised with the applicant about his performance and behaviours were legitimate concerns that needed to be addressed: Ex R5, R6, R7.
There is a consistent theme in feedback from the trials that the applicant lacked very basic interpersonal skills required not only for a frontline customer service job, but also to successfully function within a team working environment. There was also evidence that he did not bring a positive attitude to the trials, especially with respect to the Ward Clerk role trial. Separate from the issue of his capacity to undertake the duties associated with the roles he was trialled in, the evidence concerningly demonstrated that the applicant did not fully engage in the training opportunities he was offered or "give his best" during the trials. When feedback was given, he was defensive, and resistant, often attacking those providing the feedback or other people trying to support him. Whilst the personal circumstances of the applicant's own mental health challenges and his mother's illness may explain some of these transgressions, these were observed by several different work colleagues over an extended time. The evidence suggested that the applicant did not fully appreciate his obligations with respect to the process of finding him alternative employment within the NBMLHD.
In addition to the job trials, other roles were identified as potentially being suitable for the applicant by both him and the respondent. There is evidence of steps being taken to identify and put forward these roles to the applicant and where he identified a role, the respondent considering these and responding. When cross-examined, the applicant conceded that he was not suited to some of the roles he put himself forward for, including the role of Cook and Communications Clerk: Ex A3 at [20].
The applicant was provided with the services of an external Vocational Rehabilitation provider to improve his prospects of obtaining suitable employment, including outside of the NBMLHD in December 2018: see [12] above.
The respondent's efforts in attempting to support the applicant, initially with the goal of returning him to his pre-injury role, and then to redeploy him into suitable employment, were reasonable and appropriate. I reject the applicant's submission that the respondent "gave up too soon" or did not do enough before dismissing him. The evidence clearly demonstrates significant efforts were made to support the applicant in a range of ways by the respondent and their insurer, but unfortunately, that assistance did not result in suitable employment being identified for the applicant within the NBMLHD. Efforts to support the applicant to find work were continuing as at the time the matter was heard by the respondent's insurer.

Was the dismissal unreasonable because the applicant was dismissed contrary to the respondent's policy directive, "Injury Management and Return to Work Policy"?

The applicant argued that the dismissal was unreasonable because of the respondent's failure to follow the Policy and in particular, the obligations provided for in Chapter 8 entitled, "Return to Work": Ex R9 at pp 127-175. To understand this submission, it is necessary to consider the Policy in greater detail.
The stated purpose of the Policy is to provide managers with information with respect to what actions they must take under the law in the event of a worker sustaining a work-related injury. The Policy speaks to obligations upon a range of participants in that process, including the respondent, the injured worker, and the insurer. For example, paragraph 8.3.1, under the heading, "What is suitable employment?" it states that, "An injured worker who has current work capacity has an obligation, in co-operation with the Agency of Fund Claims Manager, to make reasonable efforts to return to work in suitable employment" and, "The Agency has an obligation to provide, when requested, suitable employment to an injured worker who has current work capacity." However, the Policy also states that the Agency "must provide suitable employment for an injured worker unless… it is not reasonably practicable to do so". The Policy gives direction on what the Agency is to do if it is unable to find suitable employment, stating that, "Agencies must notify their Funds Claims manager if they are unable to offer suitable employment to workers who have the capacity for work and who request it".
The applicant claimed that the respondent had not complied with paragraph 8.3.3 of the Policy, which sets out the "Hierarchy of Suitable Duties/Employment". It states that: The hierarchy of suitable duties/employment, beginning with the most desirable, is: Same duties/same Agency Similar duties/same Agency Different duties/same Agency Same duties/different Agency/Employer Similar duties/different Agency/Employer Different duties/different Agency/Employer
The argument was that the respondent did not move down the order of priority from "Different duties/same Agency" to the same, similar, or different duties with a different Agency or employer. The applicant also argued that this obligation could not be subrogated and therefore any efforts in this regard expanded by the insurer or other third party were not relevant.
The Policy does not place an obligation upon the Agency, in this case the NBMLHD, to take steps to find suitable employment for the applicant outside the NBMLHD. Paragraph 8.3.3 provides information with respect to the order by which the workers compensation scheme, involving several parties, will seek to find employment for an injured worker. It does not mandate steps that must be taken before an employee can be dismissed because they are unable to the perform the inherent requirements of their pre-injury position. Similarly, the reference in the Policy that vocational retraining "may be an option" for an injured worker, does not require the respondent to provide that training before consideration can be given to dismissing the employee.
In any event, the applicant was provided with assistance to improve his employability within the NBMLHD through the provision of training, suitable duties, and on-the-job training prior to the commencement of his trials. Given the way the respondent has organised its operations within NSW Health, including through the creation of distinct Local Health Districts, it is not reasonable or practicable to expect that the respondent would search for potential work trials for suitable employment outside of the NBMLHD. However, the applicant was provided with support to obtain suitable work outside of the NBMLHD, paid for by the employer's insurer. The applicant gave evidence of having undertaken training through the insurer, acquiring a forklift licence, a "white card" and certificates in the Responsible Service of Alcohol and Responsible Conduct of Gambling. He also gave evidence that that he was "waiting on a response from EML for training to drive a heavy rigid truck": Tcpt, 24 March 2020, p 35 (20)-(40).

Was the applicant subject to a fair process?

The applicant submitted that the applicant was not subject to a fair process in the decision to terminate his employment because he was not given an opportunity to meet with the decision-maker, namely, the Chief Executive. He also submitted that it was of significance that she did not give evidence in the proceedings.
With respect to these submissions, reference was made to the decision of Cambridge C in Warren v Department of Education [2009] NSWIRComm 1032 where it was stated at [47]-[49]: "The decision to dismiss the applicant was taken by a Mr Haigh who was not called to give evidence in these proceedings. The absence of evidence from the decision maker is ordinarily problematic in one of these matters. In this instance this difficulty was compounded by evidence that the decision maker had no direct contact with the applicant concerning her medical restrictions, and the subsequent decision to dismiss. It is difficult to accept that it could be reasonable or just for any employee to be dismissed without a fundamental process that included the opportunity to put a case, face to face, with the decision maker. The requirement for such a process is primarily derived from the notions of natural justice. Large organisations usually have structured hierarchies that devolve decision making to particular individuals. These decision makers will logically rely heavily on information and recommendations provided by others. However, if the decision maker determines something as serious as termination of employment without providing opportunity for face to face contact, he or she risks creating the appearance that they do not have the courage of their convictions. In addition, both the legal and ethical basis for the decision is open to manifest challenge. There are exceptional circumstances where a decision to dismiss might be appropriately taken without need to provide the employee with an opportunity to be heard in person. These exceptional circumstances usually involve acts of such gross and wilful misconduct, admitted or undeniably existent, that no further inquiry is warranted because no possible explanation or mitigation could alter the decision. It follows that the nature of the applicant's circumstances must prima facie, be closed to contemplation of any outcome other than dismissal. For if some other outcome could be possible as a matter of logic and natural justice, the decision maker would have to hear from the applicant."
Although ideally, the person making the decision to terminate the employment of an employee will meet the employee face to face, the failure to do so, does not necessarily make an otherwise fair and transparent process unfair.
In this matter, the factual background leading to the termination of the applicant's employment was largely uncontentious and he was provided with an opportunity to show cause why his employment should not be terminated. The Brief was detailed and the course of events that had taken place prior to the applicant's dismissal thoroughly documented. The applicant's response to the preliminary decision was provided to the decision-maker. In any event, having considered the evidence in the matter, including that of the applicant, I am of the view that had the applicant met with the Chief Executive prior to his dismissal, the outcome would have been the same.

Was the termination of the applicant's employment harsh, given his circumstances?

The applicant is 60 years of age, has a limited skill set and is suffering from a back-injury and mental health challenges that are likely to make his prospects of obtaining alternative employment challenging. Although the applicant may encounter difficulties in finding and maintaining ongoing employment, he was continuing to receive assistance from the respondent's insurer to improve his vocational and job seeking skills.
The applicant gave evidence of his post termination circumstances: Ex A3 at [46]-[53]. He stated that he had applied for over 18 roles without success and been forced to draw savings to support himself and his family. He stated that his circumstances had impacted upon his mental health and that not being able to find work had left him feeling incredibly demoralised. The dismissal has also impacted upon his retirement plans as he had intended to work for a further 8 years. I accept the applicant's evidence about the impact the termination has had on him personally.
The applicant gave evidence that his capacity had improved and that at the time of the hearing, he was able to lift to 20 kg. The applicant will be able to pursue an application for reinstatement pursuant to s 241 of the WC Act, should he become fit to resume duties within 2 years of his dismissal. Whether the applicant could be reinstated pursuant to such an application would, however, be subject to considerations distinct from the matters which the Commission is required to consider in the present proceedings.

Conclusion

Having carefully considered the evidence and the submissions of the parties, I have decided that the applicant has not discharged his onus to demonstrate that the dismissal of his employment was harsh, unreasonable, or unjust.
The respondent had a proper basis to conclude that the applicant was unable to fulfil the inherent requirement of his role, Wardsperson. Further, the respondent took reasonable and appropriate steps to support the applicant before his dismissal, initially with an aim of having him return to his pre-injury duties, and then in its efforts to find suitable employment. There is no obligation upon the respondent to continue to provide the applicant with suitable duties for an indefinite period.
I also consider that the process adopted by the respondent in arriving at the decision to terminate his employment was fair and reasonable in the circumstances, even though he was not given an opportunity to meet with the decision-maker prior to his termination.
Although the applicant's future is uncertain given his age and lack of vocational skills, I have decided that his dismissal was not harsh given the efforts to redeploy him within the NBMLHD and the ongoing assistance that has been made available to him to find alternative employment after his dismissal.
For these reasons, I have decided the dismissal was not harsh, unreasonable or unjust.
Order
I make the following order: 1. The application by Mr Kevin Wayne Jenkins pursuant to s 84 of the Industrial Relations Act 1996 filed on 4 August 2020 is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 March 2022

Workers Compensation Act 1987(NSW)ss 32A, 241, 248

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