The appellant, Leticia Cansino, and two other persons, Madvi Prasad and Betty Bouchub Silaphet, had been employed by the respondent South Western Sydney Area Health Service as registered nurses. Their employment was terminated by the respondent. Each of them initiated two sets of proceedings in the Commission claiming: firstly, relief consequent upon unfair dismissal pursuant to s84 of the Industrial Relations Act 1996; and, secondly, relief under Pt 7 of Ch 2 of the Industrial Relations Act which provides protection for injured employees. All of those proceedings were heard concurrently by Maidment J. His Honour gave a decision on 17 March 1998 in which certain relief was granted in the applications brought by Ms Prasad and by Ms Silaphet. His Honour dismissed both of the applications brought by the appellant who now has challenged the decision against her.

Pursuant to the provisions of s188 of the Industrial Relations Act, it was necessary for the appellant to obtain leave to appeal. During the course of the proceedings Mr Kenzie QC, who appeared with Mr Kimber of counsel for the appellant, indicated that his client no longer pressed her application for leave to appeal against that part of the decision of Maidment J which dismissed her application under s84 in relation to the alleged unfair dismisal. Mr Sweeney SC, who with Mr Murphy of counsel appeared for the respondent, indicated that his client did not oppose leave being granted to appeal from his Honour's decision to dismiss the application brought under Pt 7 of Ch 2 in relation to protection for an injured employee. We determined to make orders which reflected those positions. Accordingly, this decision deals only with the appellant's appeal against his Honour's order to dismiss her application brought under Pt 7 of Ch 2.

Before considering the factual background against which the proceedings were conducted, we set out hereunder the then relevant statutory provisions in Pt 7 of Ch 2 of the Industrial Relations Act:

(1) For the purposes of this Part, an injured employee is an employee who receives an injury for which the employee is entitled to receive compensation under the Workers Compensation Act 1987 or the Workers' Compensation (Dust Diseases) Act 1942.

(2) For the purposes of this Part, a person is the employer of an injured employee only if the injury arose (either wholly or partly) out of or in the course of employment with that person.

(3) In this Part, reinstatement includes re-employment.

92 Application to employer for reinstatement of dismissed injured employee

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

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

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

93 Application to Commission for reinstatement order if employer does not reinstate

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

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

(3) The Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured employee was dismissed.

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

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

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

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

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

(4) If the Commission orders the employee to be reinstated, it may order the employer to pay to the employee an amount stated in the order that does not exceed the remuneration the employee would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission.

(1) In proceedings for a reinstatement order under this Part it is to be presumed that the injured employee was dismissed because he or she was not fit for employment as a result of the injury received.

(2) That presumption is rebutted if the employer satisfies the Commission that the injury was not a substantial and operative cause of the dismissal of the employee.

96 Disputes as to fitness--medical referees and panels

(1) The Commission may refer to a medical referee or medical panel any dispute as to the employee's condition and fitness for employment.

(2) The medical referee or medical panel is to submit a report to the Commission in accordance with the terms of the reference.

(3) In this section, medical referee and medical panel have the same meanings as in the Workers Compensation Act 1987.

99 Dismissal within 6 months of injury an offence

(1) An employer of an injured employee who dismisses the employee is guilty of an offence if:

(a) the employee is dismissed because the employee is not fit for employment as a result of the injury, and

(b) the period that has elapsed since the employee first became unfit for employment is less than 6 months.

(2) It is a defence to a prosecution for an offence under this section if the employer satisfies the court that:

(a) at the time of dismissal, the employee would not undergo a medical examination reasonably required to determine fitness for employment, or

(b) at the time of dismissal, the employer believed on reasonable grounds that the employee was not an injured employee within the meaning of this Part.

(3) The prosecution may establish that an injured employee was dismissed because the employee was not fit for employment as a result of the injury if the prosecution establishes that the injury was a substantial and operative cause of the dismissal.

(4) This section applies even if the employee became unfit for employment before the commencement of this section.

The appellant commenced employment with the respondent in March 1978 as a registered nurse. On 2 September 1994 she injured her back whilst lifting and turning a patient. She was off work until 6 December 1994 when she returned on light duties and commenced a rehabilitation programme. Her programme was varied from time to time and she was given light work in a variety of areas with restricted working hours. Apart from some brief periods off work because of her back condition and a period off work from an unrelated condition, the appellant remained in employment undertaking light duties and participated in a rehabilitation programme essentially until the termination of her employment on 5 September 1996.

The appellant was afforded benefits under the provisions of the Workers' Compensation Act 1987.

There was no dispute that the appellant suffered from underlying disc pathology which was revealed on radiological examination and an MRI scan.

The light duties work which the appellant was given by the respondent involved a variety of restricted tasks to comply with the terms of medical reports indicating that she was unable to work for more than five or six hours per day, was unable to engage in repetitive movements and could not undertake work involving bending or lifting.

During the course of her rehabilitation programme, it was suggested to the appellant she might be able to undertake work as a receptionist in a private medical practice or perform work of a clerical nature. Such work would be available, but not in the employ of the respondent, on a long-term basis as being within the appellant's capacity having in mind her disabilities. During the course of the various rehabilitation programmes, the appellant was afforded an opportunity to undertake certain training courses, including clerical administration and venipuncture.

On 14 August 1996, Rehabilitation Case Management Pty Ltd, as the respondent's rehabilitation provider, advised the respondent that the prospect of the appellant obtaining a permanent alternate full-time position was "poor, due to her restrictions on work hours and questionable motivation."

On 30 August 1996, an internal memorandum from the Director, Division of Clinical and Nursing Services/Acting Director, Division of Business Services of the respondent noted that medical evidence tendered by the appellant "indicates that she is unfit for full pre-injury duties but remains fit for selected duties. Attempts to rehabilitate the employee have continued for a period of time and selected duties have been provided in various work areas." That memorandum then noted that the appellant was fit to return to her pre-injury duties provided she worked no more than five hours per day, did not lift any item more than 5kg in weight, undertook no bending or lifting and no repetitive movements. The memorandum asked whether suitable duties were available on a permanent basis at the appellant's "normal place of work" and suggested that if no such duties were available it would be necessary to consider whether the appellant should be redeployed to an area where such duties were available. If no such duties were available, the memorandum suggested that consideration should be given to terminating the appellant's services.

By letter dated 4 September 1996 the respondent wrote to the appellant saying in part: "As you are aware the Health Service is required to provide adequate staff levels in order to deliver its services. Accordingly, the Health Service regrets to inform you that after due consideration of the foregoing, the Health Service has no option but to terminate your services effective 5/9/96 (two weeks wages in lieu of notice) because of your inability to fulfil your contract of employment."

Subsequently, the appellant sought alternative employment in the private sector but was unsuccessful in doing so.

On 21 November 1996, the appellant gave the respondent a medical certificate from Dr T Salama dated 28 October 1996. In that report, Dr Salama said she considered the appellant fit for suitable duties from 28 October 1996 to 28 November 1996 with the following restrictions: "No bending, no lifting, no pushing, no repetitive movement 6 hours per day limit 5kg lifting." The report also noted under a heading "Further action required" the following: "physiotherapy, rehabilitation and swimming."

The application brought by the appellant was filed on her behalf by the NSW Nurses' Association on 24 February 1997. It was said to be an application for a reinstatement order under s93 of the Act. It relied upon the medical certificate of Dr Salama dated 28 October 1996, to which we have earlier referred. It stated:

"The Applicant asks the employer to reinstate the Applicant as:

1. a registered nurse with South Western Sydney Area Health Service, or in the alternative,

2. a registered nurse with South Western Sydney Area Health Service consistent with the restrictions in the attached medical certificate, or in the alternative,

3. a registered nurse with Bankstown-Lidcombe Hospital, or in the alternative,

4. a registered nurse with Bankstown-Lidcombe Hospital consistent with the restrictions in the attached medical certificate

In describing the proceedings with which he was dealing, Maidment J noted that each of the three employees the subject of his Honour's consideration were "functionally restricted, the reality being that, if reinstated, they would each be confined to light duties for an indefinite period if not permanently." His Honour then said: "In each case it is necessary to weigh up the obligations of the respondent to deliver economic and efficient health services to the community whilst catering for the interests of its employees and, of course, to bear in mind the welfare of the hospital patients who are entitled to have their nursing requirements attended to by nurses who are fit for that purpose."

In considering the provisions of Pt 7 of Ch 2, his Honour considered an argument which had been advanced on behalf of the appellant that once the conditions referred to in s94(2) were fulfilled it was mandatory to make an order under s94(3). That argument was rejected by his Honour and there is no appeal from it.

His Honour then considered the claimed options put forward on behalf of the appellant as outlined in the application which we have previously cited. It was noted that the supporting medical certificate indicated the appellant could not perform all of the work of "the position of a registered nurse". Any order requiring the appellant to perform work on an unrestricted basis would expose the respondent to liability for breach of ss15 and 16 of the Occupational Health and Safety Act 1983.

In considering an argument advanced on behalf of the respondent, to the effect that the appellant had to nominate the kind of work for which application was made and the medical certificate produced in accordance with s92(3) must also nominate employment of that kind but failed to do so, his Honour said:

"It seems to me that, to the extent that each application seeks reinstatement to `the position of registered nurse . . . .consistent with the restrictions in the enclosed medical certificate', the applications are regular as it would be open to the respondent to create such a position in each case. The fact that such wording lacks precision might militate against success, however, I do not accept that, in the circumstances of the position of registered nurse, no employment can exist consistent with the restrictions imposed by the medical certificate in each of these cases."

His Honour then dealt with the rehabilitation provisions of the Workers' Compensation Act which, essentially, require employers to establish workplace rehabilitation programmes for injured workers. His Honour then reviewed briefly the witnesses called on behalf of the appellant and the respondent. His Honour was generally critical of the evidence of Dr Christie, an occupational physician called on behalf of the appellant and the other two applicants, particularly with respect to "his seeming to be more of an advocate than an objective professional witness."

After reviewing the competing professional evidence given in the proceedings, which was directed predominantly to the prospects of successfully rehabilitating the appellant into some form of meaningful employment, his Honour concluded that "the respondent acted upon reputable professional advice" and had utilised information available to it for that purpose. His Honour concluded:

"In areas of human endeavour such as the assessment of injured workers, perfection cannot be expected and differing degrees of skill and expertise must exist as between practitioners be they medically qualified or otherwise. Views as to the prospect of success in any given case are likely to differ. In the present cases honest and professional attempts have been made to rehabilitate the employees, those attempts have proved unsuccessful. This Commission cannot undo that, nor can it, in these proceedings, devise some alternate rehabilitation procedures and require that they be adopted, if for no other reason that it does not have the necessary expertise."

His Honour also commented with respect to the respondent's workplace rehabilitation programme that a failure to comply with it did not necessarily attract reinstatement, "particularly if such is not practicable".

In the course of his judgment, his Honour dealt not only with the claim brought by the appellant under Pt 7 of Ch 2 but also that brought under s84 based on alleged unfair dismissal. Although we are not concerned with the s84 proceedings, his Honour did in the course of dismissing that application make some observations about the evidence directed to that aspect in the proceedings and which is relevant also to the subject matter of the present appeal.

The appellant had admitted into evidence two sets of documents which had been produced by the respondent pursuant to notices to produce. The first set, which became Exhibit 24, consisted inter alia of current job descriptions and duty statements for registered nurse positions and administrative and clerical positions within the respondent's operations. The second group of documents, which became Exhibit 25, consisted of all job advertisements placed by the respondent or any facility operated by it during the periods 25 March 1996 to 5 September 1996 and 21 November 1996 to 20 June 1997 for the positions of registered nurse, other than promotional positions but including clinical nurse specialist, and administration or clerical positions, other than those requiring a non-nursing academic qualification. His Honour made certain comments with respect to this latter documentation, that is Exhibit 25, and said:

"....the proposition that job advertisements demonstrate that between April to September 1996 there was a vast array of available and suitable work for Mrs Cansino is wrong; the assertion that the advertisements show that there were, between September and December 1996 both nursing and non-nursing positions `for which the applicant was undoubtedly qualified, and capable of undertaking' is wrong. I was directed in this regard to 65 pages of SWSAHS job advertisements without any particular advertisement being referred to. It would have been helpful to specify particular positions said to fall within this description. Not one is apparent to me and I assume that each advertised position required a person fully able both to perform the full range of physical functions associated with the position and also to do so for the required hours. The only position specifically identified in this regard is that of blood collector for which Mrs Cansino unsuccessfully applied in November 1996 as to which the evidence demonstrates that she was not fit to perform other than on a significantly limited basis."

His Honour concluded this aspect of the proceedings as follows:

"I suspect that the true complaint of the Association is that Mrs Cansino was not provided, on a permanent basis, with a position tailored to meet her limited capabilities. Such a position would involve not only functional restrictions but also would need to be confined in duration to the hours during which she would be physically capable of working. In my view any such complaint is unrealistic. I note that a return to work goal of her rehabilitation program was that she seek clerical positions outside South Western Area Health Services. Such a goal was quite proper and, in the circumstances, perhaps more realistic than that of returning to work with SWSAHS as a clerical assistant."

On this basis, his Honour concluded there was no unfairness in the appellant's dismissal from her position of registered nurse.

In dealing with the application made under Pt 7 of Ch 2, his Honour first highlighted a consistent feature of the medical evidence, namely, that the appellant suffered a significant impairment of her lower back and left leg. She was restricted in the work she could undertake and the hours during which she could perform those restricted activities.

Having noted the form of the application filed by the appellant, which we have previously set out, his Honour then reproduced the two orders sought by the appellant in the Pt 7 of Ch 2 proceedings, namely:

"Pursuant to Section 94 (2) of the Act, the South Western Sydney Area Health Service reinstate Ms Cansino to employment as a registered nurse on terms not less favourable than those that would have been applicable if she had not been dismissed; or

Pursuant to s94(3) of the Act, the South Western Sydney Area Health Service reinstate Ms Cansino to Technical Assistant Grade 2 work or to Ward Clerk work on terms and conditions (including salary maintenance) not less favourable than those that would have been applicable if she had not been dismissed."

His Honour noted that the certificate of Dr Salama, upon which the application was based and which was issued in October 1996, did not indicate the appellant was fit for employment as a registered nurse. His Honour said that "the evidence, which I accept, is that there was no relevant position of registered nurse which could have been performed with the restrictions imposed upon her." The reference to "position" was the subject of important submissions by the appellant and we shall return to it later in these reasons.

In concluding that the application brought by the appellant under Pt 7 of Ch 2 should be dismissed, his Honour said:

"Additionally, and in any event, it has not been demonstrated that the respondent could, consistent with its obligation to provide an efficient health service to the public, create a nursing position apt to the restrictions imposed by the certificate. No doubt some job functions could be provided, however the evidence does not disclose any available organisation of such functions which would either be of utility in the rehabilitation process or realistic to the needs of SWSAHS and its patients. I am mindful, in reaching these conclusions, of the suggestion that various alterations to the physical work environment might assist the employment of Mrs Cansino.

It is clear that in order to provide permanent employment for Mrs Cansino a part time non registered nurse position with light duties would need to be created. Additionally, any return to work would have to be graduated. The evidence does not suggest that any such position could meaningfully be created reasonably consistent with the efficient provision of services to the public by the respondent.

A similar situation exists both as to Technical Assistant Grade 2 work and to ward clerk work.

It is apparent from the materials that the respondent has taken appropriate and reasonable steps to rehabilitate Mrs Cansino towards non nursing work. It has no obligation, by any test known to this Commission, to permanently provide such work, the more so in circumstances in which Mrs Cansino is incapable of performing such work without significant restrictions. Any such work performed by Mrs Cansino would be of no utility to the respondent as a consequence of the restrictions imposed upon her by her own doctor."

The appellant made a number of submissions which, in essence, comprised the following -

* Maidment J had, in the challenged judgment, referred repeatedly to the inability of the appellant to perform work in a "position" of registered nurse and the fact that there was no "position" of registered nurse available with the respondent which could have been performed with the restrictions imposed upon the appellant. Part 7 of Ch 2 in focusing on "employment of a kind" or "the kind of employment" conveys a different meaning to "position", a word used in previous legislation which was replaced by Pt 7 of Ch 2 and which had been the subject of adverse judicial comment as to its meaning. This had resulted in his Honour adopting an incorrect approach.

* The provisions of Pt 7 of Ch 2 should be construed in such a way that the employer was required to make available employment of a kind which met with and accommodated the injured employee's physical capabilities. Accordingly, it was incorrect for his Honour to adopt a position which enabled the appellant's claim to be dismissed because his Honour was not satisfied that any such work could appropriately be made available by the respondent.

* His Honour adopted an approach which involved placing a burden on the appellant to show that a range of duties was available from within the respondent's organisation whereas the approach to construction of the statute contended by the respondent did not involve any such burden being imposed on the appellant.

* His Honour's decision was against the weight of the evidence as to the ability of the respondent to provide suitable work for the appellant.

Before considering the appellant's submissions and the respondent's response to them, it is first convenient to deal with the structure of Pt 7 of Ch 2 of the Industrial Relations Act.

THE STATUTORY FRAMEWORK OF PART 7 OF CHAPTER 2

We first refer to the legislative history because it is necessary to have it in mind in order to appreciate the submissions made.

The provisions of Pt 7 of Ch 2 are similar in nature, although different in precise terms, to the corresponding provisions of Pt 7 - Protection of Injured Employees, of Ch 3 of the Industrial Relations Act 1991. The 1991 Act provisions were in turn similar in nature, although different in wording, to Pt XV - Protection of Injured Employees, of the Industrial Arbitration Act 1940 which was inserted into that Act by the Industrial Arbitration (Workers Compensation) Amendment Act 1987; that legislation was introduced with a cognate bill leading to the Workers Compensation Act 1987.

The legislature at the time considered a package of measures which included a new Workers Compensation Act, amendments to occupational health and safety legislation and other consequential legislative changes designed to minimise the cost to the community of work injuries in the State. Radical changes were made to the workers' compensation legislation abolishing claims for common law damages, increasing the initial benefits payable for total incapacity, varying the circumstances under which partial incapacity benefits could be paid and, of present importance, emphasising rehabilitation as a means of reducing the costs of workers' compensation claims. The occupational health and safety legislation was strengthened to focus attention on workplace safety. Part XV of the 1940 Act was introduced to complement the area of rehabilitation.

In his second reading speech in introducing the package of legislation, the Minister for Industrial Relations and Minister for Employment said (Hansard, Legislative Assembly, 14 May 1987 at p12211):

"In keeping with the emphasis on rehabilitation, and stressing the responsibilities of all the parties involved in the workers' compensation area, a prohibition will be placed on the dismissal of a totally incapacitated worker within the period of total incapacity, up to a maximum period of six months from the date of injury, unless it is certified medically that the worker is permanently unable to resume duties in his or her former employment. Workers whose employment is terminated outside that period of total incapacity and who are certified fit for their previous work will have a right to apply to the Industrial Commission for reinstatement."

Section 154C of the 1940 Act contained within Pt XV was as follows:

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

(a) the position from which the employee was dismissed; or

(b) if the employee was transferred to a less advantageous position before dismissal, the position which the employee held when he or she became unfit for employment,

(3) The employee must produce to the employer a certificate given by a legally qualified medical practitioner to the effect that the employee is fit for employment in the former position.

(4) This section does not apply to a dismissal which occurred before the commencement of this section."

Those provisions in s154C were considered in a series of cases involving a claim brought by a dismissed employee against his former employer: see State Rail Authority of New South Wales v Tyrrell [1993] 49 IR236 and [1993] 51 IR14. The proceedings ultimately were determined by the Court of Appeal in State Rail Authority of NSW v The Honourable Justice Bauer & Ors (1994) 55IR 263; special leave to appeal from that decision was declined by the High Court of Australia. This litigation centred around the controversy concerning the use of the word "position" within s154C. A "position" was seen to mean either the classification used to describe the status of an employee within an employment matrix or alternatively the work duties performed by the employee. Part 7 of Ch 3 of the 1991 Act also used the word "position". At the time that that 1991 statute was enacted the controversy as to the use of the word "position" had not surfaced. However when the current 1996 Act was introduced into Parliament the legislature must have been aware of the controversy and, in fact, had modified the language used in order to avoid it. Part 7 of Ch 2 of the 1996 Act refers generally to "employment of a kind" rather than "position". In his second reading speech in moving for the enactment of the 1996 legislation, the Attorney-General and Minister for Industrial Relations said (Hansard, Legislative Council, 23 November 1995 at p3849):

"Chapter 2 part 7 carries forward the provisions of the 1991 Act which are designed to provide certain employment-security rights for persons who have suffered a work-related injury. The existing provisions have been the subject of some judicial criticism and the bill has been redrafted to state more clearly the powers of the commission in this area and to make some appropriate changes to assist injured workers. The bill now allows the commission the discretion to order back payments. This is an appropriate discretionary measure: dismissed injured workers, no less than unfair dismissal applicants, should not be disadvantaged financially and should be encouraged to return to work. There is no ability to order compensation in lieu of reinstatement: the policy objective is the reinstatement of injured workers.

The bill adopts a more flexible approach to the kind of employment to which an employee can be reinstated. This will facilitate the laudable aim of the return to work of injured employees - but it will be balanced against employer interests as it must be employment which is available and for which the employee is fit. It is not intended that orders would be made for employment that is merely of a token nature and does not involve useful work having regard to the employer's operations; or employment that is demeaning in nature, having regard to the nature of the worker's incapacity, education, skills and work experience. It is intended that the meaning of "available" reflect the approach taken by the commission in Commonwealth Steel Company Limited v Ward, Unreported - Matter No. IRC 3144 of 1993. Before leaving the topic of injured workers, I should mention that it is intended that the references to "dismissal" in this part of the bill dealing with the protection of injured workers be capable of applying to instances of "constructive dismissal".

Having regard to those general observations we now turn to an analysis of the provisions of Pt 7 of Ch 2 which are relevant to the determination of these proceedings. It seems to us that those provisions operate in the following way -

(1) They are confined to a person who sustained injury in circumstances which created an entitlement to receive compensation under the Workers Compensation Act 1987 or the Workers' Compensation (Dust Diseases) Act 1942. (Since 31 July 1998, the coverage was extended to persons entitled to receive compensation under the Workplace Injury Management and Workers Compensation Act 1998): s91(1).

(2) The employment of such a person must have been terminated by the employer "because" (that is, for the reason that) the person was not fit for employment and such unfitness for employment must in turn have resulted from the relevant injury: s92(1). A person is the "employer", and hence liable to meet an order for reinstatement, only if the injury arose (either wholly or partly) out of or in the course of employment with that person: s91(2).

(3) Such a person may apply to the employer who dismissed him or her for reinstatement to "employment of a kind" which the person must specify when making the application: s92(1).

(4) Questions may arise as to what is meant by the expression "fit for employment" in s92(1) in the context of a person undergoing rehabilitation. Presumably, "employment" where used in the subsection has the same meaning as where used in the remainder of Pt 7 of Ch 2. This raises the question as to whether fitness for employment where used in s92(1) refers to unfitness for employment of any kind or unfitness for the pre-injury employment. It is not necessary to address those issues in the circumstances of the present matter.

(5) Prima facie, the word "reinstatement" imports a notion of becoming re-employed in the work which the person was undertaking at the time of termination of employment: see the discussion of the concept in Deltec International Courier Pty Limited v. Transport Workers' Union of Australia, New South Wales Branch [1993] 50 IR341 at 350-354; in any event, s91(3) defines "reinstatement" to include "re-employment". But, such a notion is displaced because the reinstatement is said to be available to employment of a kind specified in the application which, necessarily, imports the possibility of employment to something other than the precise pre-dismissal employment.

(6) "Employment of a kind" refers to the work as specified in the application. The kind of employment applied for cannot be "more advantageous to the employee" than the work in which the person was engaged when he or she first became unfit for employment because of the injury: s92(2). What is "more advantageous" may be open to debate having regard to remuneration, general working conditions, status and the like; such debate does not arise in these proceedings. However, the kind of employment for which the employee applies for reinstatement may indeed, at his or her election, be less advantageous to the employee than the pre-injury employment, so long as it is not more advantageous.

(7) It is necessary for the person to "produce" (that is, show) to the former employer a certificate from a medical practitioner. The effect of the certificate, that is its general thrust, must be that the employee is fit to undertake the work as described by the employee when making application for reinstatement: s92(3).

(8) The person may apply to this Commission for a reinstatement order if he or she is not "immediately" reinstated to employment of the kind for which the person applied or to any other kind of employment that is no less advantageous to that person: s93(1).

(9) An application may be made on behalf of the employee by an industrial organisation of employees: s93(2); and a reinstatement order may not be made, except in special circumstances, if the application was made more than two years after the dismissal: s93(3).

(10) Provided all of the pre-conditions outlined above are fulfilled this Commission is empowered to make orders of the kind and in the circumstances described in s94, and in particular subss (2) and (3) thereof.

(11) An order may be made reinstating the employee to either employment of the kind for which the employee has applied (which may be as or less advantageous than the pre-injury employment) or employment of any other kind that is no less advantageous to the employee than that applied for. In either case, and importantly, any such order can only be made if the Commission is satisfied the employee is fit for that kind of employment: s94(2).

(12) Whether and to what extent any such order is made under s94 is discretionary and the section should not be construed as imposing a mandatory requirement upon the Commission to make such an order, subject, of course, to the discretion being exercised in a proper manner. So much is clear from the repeated use in the section of the word "may".

(13) If the Commission is satisfied it is appropriate to make an order under s94(2), the discretion reposes in the Commission as to which of the alternative courses it should adopt. In exercising discretion it would be necessary to do so on the evidence put before the Commission by the parties.

(14) Because of the provisions of s94(3), it is apparent that any order made under s94(2) must be referable to the situation where the employer has "available" employment of the kind to which the employee has applied for reinstatement. As well, any other kind of employment that is no less advantageous to the employee than that applied for may only be the subject of an order under s94(2) if the Commission has determined that employment of that kind for which the employee has applied for reinstatement is available. This must follow, it seems, from the fact that s94(3) in permitting an order in respect of employment of a kind that is available but which is less advantageous to the employee as opposed to employment which is no less advantageous to the employee than that applied for may only be made where "the employer does not have employment of that kind available."

(15) The reference in s94(2) to employment "that is no less advantageous to the employee" involves considerations of advantage and disadvantage not only by reference to remuneration and status but also by reference to any rehabilitation programme and the part that that other kind of employment played in that programme.

(16) A determination of fitness for employment as referred to in s94(2) must necessarily be made on the basis of medical evidence.

(17) The alternative orders available under s94(3) may only be made if the Commission is satisfied that the employer does not have employment "of that kind" (that is, the employment referred to in s94(2)) available.

(18) The provisions of s94(3) raise questions as to who bears the onus of establishing whether the employer has employment of the kind so specified in s94(2) available. Given the nature of the orders which may be made under s94(2) and the resultant burden of any order under s94(3) being on the employer, it would seem logical that such onus should fall on the employer.

(19) Section 94(3) creates two further alternative bases for the exercise of discretion, but in either case the Commission is required to find that the employee is fit for the alternative employment which is the subject of the order. Again, fitness would appropriately be determined by reference to relevant medical evidence.

(20) The first alternative set out in para (a) of s94(3) is employment of a kind that the employer has available but which is less advantageous to the employee. That raises the question of what is meant by employment of a kind that is so "available". Given the contrast with the words used in s94(3)(b), this would appear to be a reference to work in the nature of particular tasks which can be undertaken in a structured manner consistent with the manner in which the employer deploys staff in the context of the operations of the employer's undertaking. If this be correct, as we think it is, then in determining whether employment of that kind is available one is to have regard to the employer's organisational structure and the way in which the employer operates. That is, one excludes, in considering what work is available for the purpose of s94(3)(a), the possibility that the employer may have to rearrange the manner in which it operates and deploys its staff in order to accommodate any order made. That this is so must follow from the description of the kind of work which is the subject of an alternative order in s94(3)(b).

(21) Section 94(3)(b) refers to employment of a kind which the Commission considers the employer can reasonably make available for the employee (including part-time employment or employment in which the employee may undergo rehabilitation). That accommodates employment of a kind not currently available and involves a consideration of the position of the employee in terms of physical capacity and underlying expertise, experience, qualifications etc, as well as the ability of the employer to make work of that kind available. In that latter regard, the use of the word "reasonably" would accommodate financial cost to the employer as well as any dislocation, interruption or interference with the manner in which the employer conducts its undertaking and the manner in which the employer deploys its staff; in addition, the usefulness to the employer of the work so arranged to be performed is a relevant consideration.

We turn now to consider the specific submissions of the appellant directed to his Honour's judgment.

The initial issue related to the use by his Honour of the word "position" throughout his reasons for judgment. We have earlier reproduced extracts from his Honour's reasons which referred in a number of places to a "position" of registered nurse in the context of the ability of the appellant to undertake work bearing in mind her physical restrictions and in the context also of the expectations of the employer in terms of making work available for the appellant. Whilst the use of the word "position" by his Honour may perhaps be unfortunate, in that it does not coincide with the language used in the provisions of Pt 7 of Ch 2, his Honour was no doubt led into its use by the manner in which the request on behalf of the appellant for reinstatement to employment was made. We have previously set out the essence of that request. It is sufficient for present purposes to note that in each case the request for reinstatement was as a registered nurse subject to certain qualifications. On one view, the reference in the application, and which was a prerequisite to the exercise of jurisdiction by the Commission, must have been directed to "employment of a kind " as described in s92(1). If this be correct, then it is reasonable to assume his Honour used the word "position" in the same way. If the appellant's application were to be construed by reference to a particular position within the respondent's organisation then, arguably, there was no application of the kind authorised by s92(1) so that his Honour had no jurisdiction to make any order; no such submission was made.

In our opinion, having regard to the nature of the evidence given before his Honour and in the context in which his Honour referred to "position", that word as so used was used in a sense synonymous with "employment" and consistent with the manner in which the word was used in the appellant's application. Even if we had not so concluded, we are of the opinion, for reasons which we shall shortly develop, that his Honour's conclusions were correct in any event. Accordingly, there is no need to consider further this particular aspect.

The second submission concerned an issue of more fundamental significance because it involved a consideration as to whether the provisions of Pt 7 of Ch 2 should be so construed that in considering what employment was available under s94(2) the Commission was not required to have regard to the actual manner in which the employer conducted its operations; rather, availability had to be assessed on the basis of a restructuring of the manner in which labour was deployed. The submission was made that based on the evidence there were certain duties of a registered nurse which the appellant could undertake within her physical restrictions. Even though there was no particular job within the employer's current structure, it was possible for the respondent to put together a number of work duties for the appellant. It mattered not that that would involve restructuring the work of other employees to accommodate such a situation and that it would require the respondent to deal with other employees some of whose light work activities may have to be removed from them so as to fashion work for the appellant. Mr Kenzie said in support of this submission:

"....we are talking about an Area Health Service employing thousands of people including loads of nurses performing a variety of duties. If one is talking about a suggestion that there was no relevant work of a registered nurse with the restrictions, that is no relevant work to be performed with those restrictions, then that must have been wrong on the evidence. Because on any view there are thousands of tasks performable and performed by registered nurses which have nothing to do with the restrictions that were relevant to Ms Cansino. It would have been so against the evidence that it would have been indefensible."

In formulating his submissions, Mr Kenzie relied on written submissions put by Mr Kimber on behalf of the appellant before Maidment J. In those written submissions, Mr Kimber had pointed to the intention of the legislature in enacting Pt 7 of Ch 2 to widen the obligations of employers and had submitted that the Part (in particular ss92 and 94) should be so construed as to impose an obligation on an employer, who did not have an established position that could accommodate the employee, to create or fashion an appropriate position having in mind the employee's physical restrictions. Mr Kimber submitted that if the provisions were not interpreted so as to apply in this way then employers would be able to escape their obligations by virtue of their "capacity/preference to arrange the work/structure of (their) positions in a manner that 'required' all workers to undertake the 'full range' of the duties performed in the work place or division or section." However, it was conceded that whilst such an approach may accord with the professed intention of the legislature it was necessary to have regard to the words used in the sections concerned.

We have previously set out the manner in which we understand the relevant provisions of Pt 7 of Ch 2 operate and we observe that the approach to construction we have adopted would also create a flexible approach to the kind of employment to which an employee can be reinstated. That approach is, in our opinion, one based upon the language used in the relevant provisions consistent with the professed intention of the legislature. Mr Kimber had not sought to substantiate the approach to construction for which he contended by reference to any analysis of the words used in the sections. We are quite unable to construe the relevant provisions as requiring the respondent in some way to create or fashion a job or position to accommodate the circumstances of the appellant. If there be no employment of the kind for which the employee has made application for reinstatement as supported by appropriate medical evidence then, in our view, the Commission is required to embark upon the inquiries inherent in considering the matters referred to in s94(3), the nature of which we have earlier referred to. As we have indicated, this requires an examination of the kind of employment available or which can reasonably be made available by the employer.

The remaining substantive submissions made on behalf of the appellant concerned the evidence. It was suggested his Honour had approached the matter on the basis that it was necessary for the appellant to establish there was employment available of a relevant kind. Then, it was said, the decision of his Honour was against the evidence and the weight of the evidence.

It is not necessary for the purpose of disposing of these appeal proceedings to analyse in any greater detail the question of the burden of proving certain factual matters because of the view which we take on the overall state of the evidence in these proceedings. Evidence had been given on behalf of the appellant concerning rehabilitation by inter alia Debora Picone, Executive Director of the NSW College of Nursing, and Catherine Jones, formerly Rehabilitation Co-ordinator at Royal North Shore Hospital and currently a consultant in rehabilitation and risk management.

Associate Professor Picone gave evidence of a general nature about a range of work which could be undertaken by nurses through rehabilitation programmes, including nurses who suffered from back injuries. In her opinion, there were "a wide range of options that can be considered for assisting nurses to rehabilitation programmes....". Associate Professor Picone then outlined in general terms work which could be undertaken in a number of departments, including, for example, work in outpatients departments and work such as infection control and immunology. She commented that in each of those "positions" specialised vocational training was available. Although Associate Professor Picone conceded that a nurse with a back injury may not be able to respond appropriately to an emergency situation in a hospital, that would not necessarily preclude a nurse with an injured back from being given work within a hospital situation. She gave examples of the placement of a high proportion of nurses suffering from back conditions at hospitals where she performed the role of director of nursing, but conceded in cross-examination she was unaware of the precise position of the respondent here in being able to make work available to the appellant.

Catherine Jones was a psychologist and had undertaken work as a consultant in the rehabilitation area. Between 1990 and 1995 she was the Rehabilitation Co-ordinator at Royal North Shore Hospital. Ms Jones presented detailed evidence concerning the rehabilitation of nurses suffering from back conditions.

After reviewing background documentation concerning the appellant, and in particular medical and rehabilitation reports, Ms Jones expressed the opinion that the appellant could be rehabilitated into work involving the collecting of blood and clerical duties. In terms of blood collecting duties, Ms Jones noted the appellant had received appropriate training and that she would be able to perform "most of the duties in that area" with some provisos including the provision of a suitable work bench and stool, an ergonomic patient's chair to allow the appellant to be seated whilst carrying out blood-taking procedures, instructions to enable her to carry bottles in half-box amounts and the improvement of trolleys for blood collecting. In terms of clerical duties, Ms Jones noted there were a number of clerical positions within the respondent's organisation, including providing assistance in the Interpreter Service, Community Service, Drug and Alcohol Service, etc.

In her evidence, Ms Jones was critical of some elements of the respondent's rehabilitation programme for the appellant. However, under cross-examination she acknowledged she had never worked for the respondent, had not seen any of the rehabilitation programmes prepared for the appellant and accepted that it was "extremely unlikely" the appellant would ever be likely to be able to return to general nursing duties.

Evidence given by Helen Anderson, Manager - Human Resources at the Bankstown Health Service, which fell within the respondent's sphere of operations, was to the effect that it would be difficult to accommodate the appellant in a registered nurse position as it would "require major restructuring of work procedures and work practices on ward and necessitating other nursing staff to be undertaking more lifting tasks putting them at undue risk." Whilst there were clerical positions available, each of them involved lifting and moving files and documents.

Evidence from Marie Clarke, Director of Nursing and Clinical Services at Bankstown Lidcombe Hospital, also part of the respondent's operations, was to the effect that the respondent was unable to locate a "position" which the appellant could perform given her back condition. The work of all persons performing nursing duties in all areas in the respondent's operations involved some physical activity inconsistent with the appellant's physical capabilities. In the same way, ward clerks at Bankstown Lidcombe Hospital had "a multi facet role" which involved working with computers, answering telephones, the delivery and handling of medical records, ordering and unpacking stores, escorting patients etc. The ordering of diet meals in the same way was undertaken by staff as part of integrated duties. Accordingly, to employ a nurse with physical restrictions on an ongoing basis "would break down team work in the clinical area and result in a change in work practices and reallocation of duties. The same situation would apply to clerical work."

Megan Bidencope was an occupational therapist in private practice. She was retained by the respondent to perform a number of functional assessments and workplace assessments covering a variety of working areas and work duties at Bankstown Hospital. This was accomplished by discussions with supervisors and staff at each of the areas visited and personal observation of the work areas to assess the performance of the duties by the staff. The assessment covered the Admissions/Bookings area, the Medical Records Department, the Pathology Department and the work of ward clerks. After describing the duties performed in each of those areas, there followed a description of the functional abilities required to perform the full range of duties concerned. In all of them, it was the evidence of Ms Bidencope that "there are a number of tasks in the work areas reviewed which involve manual handling tasks including bending, lifting, carrying, pushing and pulling. Whilst some of the tasks can accommodate regular postural adjustments, many of the clerical positions require either prolonged standing, walking or sitting, or repetitive bending or reaching. Some of the issues surrounding the clerical tasks could be overcome by modifying the tasks or requesting assistance from other staff. However, within the blood collection field, one factor which is difficult to plan for is that of the very infrequent occurrence of a patient falling or collapsing during blood collection due to blood pressure changes."

The day after completing her functional assessment, Ms Bidencope conducted a functional assessment on the appellant and consulted with her treating doctor. Dr Salama confirmed that the appellant was unable to undertake lifting of weights over 5kg and could not be involved in repetitive bending. The functional assessment noted a restriction in movement of the appellant's neck, trunk, shoulder and some restriction in the hip and knee. There was also marked restriction in the appellant's lifting capacity and she was assessed by Ms Bidencope as being unable to perform lifting from floor to waist level and waist to eye level with safety. There was also an inability to work at shoulder height for more than one minute without an increase in pain and difficulty in sustained trunk flexion, crawling, kneeling, crouching, repetitive squatting, sitting for more than fifteen minutes, standing for more than five to ten minutes and walking in excess of twenty minutes at a very slow pace. There followed certain recommendations and conclusions concerning the work which the appellant could not undertake which included no lifting from floor to waist or waist to eye level, the avoidance of lifting over 3.75kg in any other position, avoiding static standing for periods longer than ten minutes at a time, avoiding static sitting for periods longer than fifteen minutes at a time and the exclusion of movements involving squatting, kneeling or crawling, repetitive bending to floor level and knee level, trunk flexion in sitting or standing, pushing or elevated arm work. Ms Bidencope then assessed the work carried out by staff in each of the work areas at Bankstown Hospital and formed the opinion that with the appellant's current medical restrictions and based on her functional assessment she would be unable to perform a number of duties in each of those areas. She accordingly assessed the appellant as "unfit for any substantial work duties at present" and "there does not appear to be any work area in which Ms Cansino could perform the majority of tasks."

The kind of employment for which application for reinstatement was made was as a registered nurse with the respondent or alternatively with Bankstown-Lidcombe Hospital or as a registered nurse with either organisation consistent with the restrictions in the medical certificate of Dr Salama dated 28 October 1996. We have earlier set out the relevant provisions of that certificate. In that s92(3) requires the applicant employee to produce to the employer a certificate to the effect that the employee is fit for employment of that kind, it is obvious to us that the kind of employment for which application was properly made under s92(1) was as a registered nurse either with the respondent or with Bankstown-Lidcombe Hospital.

We have considerable doubt about whether in fact such an application might be said to be one for reinstatement "to employment of a kind" as required by s92(1). Indeed, the orders which the appellant ultimately sought before Maidment J, and which we have earlier reproduced, referred to reinstatement to employment as a registered nurse or alternatively to technical assistant grade 2 work or ward clerk work. In any event it is not necessary for the determination of these proceedings that we deal further with this particular aspect. Whatever the kind of employment with respect to which application for reinstatement was made by the appellant, the certificate given by Dr Salama clearly circumscribed the kind of employment which the appellant was fit to undertake. We shall assume for the purpose of discussion that the employment of the kind for which the appellant applied for reinstatement consisted of the work duties of a registered nurse qualified to the extent described in Dr Salama's certificate.

As we have previously pointed out, whether or not the Commission makes an order under s94(2) or under s94(3) will involve the exercise of a discretion having regard to all of the evidence and having regard to the matters set out in the various sub sections.

In determining whether or not to make an order under s94(92), his Honour was, in our opinion, entitled to take into account the history of attempts at rehabilitation undertaken by the respondent for the appellant including the rehabilitation regime itself, the manner in which the respondent conducted its operations and deployed its staff generally, the manner in which the respondent deployed its staff in the particular areas the subject of the appellant's application for reinstatement and such impact that any order made would have on the respondent either in the short term or long term. In that the provisions of Pt 7 of Ch 2 must be read as a whole and as providing a specific scheme for the protection of injured employees, it is not permissible to have regard to the provisions of s94(2) without considering also the remaining provisions, including in particular s94(3).

In determining under s94(3) the kind of employment that is "available", the Commission should take into account, as we have previously said, the manner in which the respondent conducted its operations in terms of the employment of labour. We are satisfied on the evidence that there was no available employment of the kind for which the appellant applied having regard to the restrictions contained within Dr Salama's certificate. There was no suggestion that there was any kind of work within the respondent's operations which satisfied the criteria in the application for reinstatement made by the appellant. We are likewise satisfied on the evidence that it would not be reasonable to impose a regime on the respondent to make available the kind of employment for which the appellant applied by way of reinstatement on a continuing basis having regard to the long period of rehabilitation which had been undertaken up to that time. The creation of the kind of employment for which the appellant contended would have severely disrupted the manner in which the respondent relevantly deployed its staff and would impose a corresponding and dislocating burden on the respondent and on the employees who would be affected by such restructuring. It was the respondent's evidence that it deployed its nursing and other staff on a team basis, that jobs were designed so as to provide a range of duties and that it would not be reasonable to interfere with its employment structure.

In our opinion, it could not be said that it was reasonable for the respondent to make available to the appellant employment of the kind for which the appellant applied by way of reinstatement.

We conclude, therefore, based on the evidence before Maidment J and our views as to the manner in which the provisions of Pt 7 of Ch 2 are intended to operate, that his Honour was correct in dismissing the appellant's application for reinstatement. There may be occasions where an employer ought be required to create a kind of employment for a dismissed injured employee in accordance with the rights to protection of employees under Pt 7 of Ch 2; but, in our view, this matter does not fit into this category for the reasons we have advanced.

Accordingly, we conclude that this appeal should be dismissed. We so order.