Loty & Holloway v The Australian Workers' Union

LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 2000

CASES CITED: IGA Distribution Pty Limited and Moses No 2 [2002] NSWIRComm 96 Loty & Holloway v The Australian Workers' Union (1971) AR 95

APPLICANT: Mr K Maher Australian Workers' Union LEGAL REPRESENTATIVES: RESPONDENT Ms M McNaughton, Solicitor Enterprise Law

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM : STANTON C Monday, 25 September 2006

The Australian Workers' Union, New South Wales (on behalf of Momcilo Jurisic) and OneSteel Wire Pty Ltd

Application by the Australian Workers' Union, New South Wales (on behalf of its member Momcilo Jurisic) re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 This application was filed pursuant to s84 of the Industrial Relations Act 1996 by the Australian Workers' Union, New South Wales ("the Union") on 29 December 2005, on behalf of its member Mr Momcilo Jurisic ("the applicant"). The Union alleged that OneSteel Wire Pty Ltd ("the respondent") had unfairly dismissed the applicant on 23 December 2005 on the medical grounds that he was " unsuitable for the industry due to ongoing injuries that prevent Mr Jurisic carrying out a full range of duties ". 2 The matter first came before the Commission on 24 January 2006 for conciliation. As the matter was unresolved, Directions for arbitration were subsequently issued. The Commission also recommended the parties "examine options for settlement, including an examination of the Superannuation Deed re medical retirement". 3 A further conciliation conference was convened on 4 April 2006. However, as the matter remained unresolved it was listed for arbitration on 27 April 2006. 4 Mr K Maher appeared for the Union and Ms M McNaughton , solicitor, appeared for the respondent. 5 At the commencement of proceedings, Mr Maher submitted that the Union was seeking the full reinstatement of the applicant, without loss of income or service, to a position in the Fence Post Plant or any other department across the plant or OneSteel's business operations in Newcastle. He characterised the respondent's decision to terminate the applicant's employment for being " unsuitable for the needs of the industry " as harsh, unreasonable and unjust. 6 Mr Maher said that the applicant was dismissed three months short of his 30 year anniversary as an employee of the respondent, having worked within the previous BHP Group since arriving in Australia in 1972. He had worked in the Fence Post Plant, where he mainly drove an overhead crane for some 28 years. 7 Mr Maher conceded that for more than two years, the respondent had sought to rehabilitate the applicant and find a suitable alternative position that he could readily undertake given his physical restrictions. However, it was Mr Maher's submission that the respondent had put little effort into attempting to find alternate duties for the applicant. 8 Mr Maher submitted that the respondent had identified a position it believed may have been suitable to the applicant in November 2004. However, this position proved unsuitable. Later, and following a request from the Union in December 2005, the respondent considered placing the applicant in a sweeper role. However, the respondent believed the position was unsafe given the applicant's injury and did not trial him in that position or allow him to look at the job. Mr Maher submitted that process was unfair. There were a range of duties the applicant could carry out in the Fence Post Plant and the respondent's only objection to putting him back into that Department was that he could not perform all the functions within the new classification structure. THE EVIDENCE

9 Mr Maher tendered affidavits and called evidence from the applicant and Mr Adrian Campbell, the Union's Site Delegate. The applicant gave his oral evidence through an Interpreter.

10 After giving an outline of his work history with the respondent, the applicant's evidence was that in or about 1985, he suffered a slight injury to his lower back when tying and moving bundles of fence posts. He reported the injury and was treated by the company doctor. After receiving treatment from a nursing sister for about two weeks, he deposed his back problem " got back to normal ", although he sometimes had recurring pain. 11 The applicant deposed he suffered another significant injury in November 2003 when he was bundling and tying fence posts. After physically moving a bundle, he experienced very severe pain in his left arm which extended from the shoulder to his fingertips. He continued working on lighter duties and attended the Medical Centre at the end of the shift at approximately 7.30am. He subsequently participated in the respondent's return to work plan. 12 The applicant deposed that approximately two weeks later, he suffered the same type of pain in his right arm when carrying out his normal duties in the Fence Post Plant. At the end of the shift, he reported to the Medical Centre where the doctor gave him some medication and placed him on a resistance exercise program. He was also placed on light duties and continued to carry out his work functions with the exception of the tying and bundling fence posts. 13 The applicant deposed he suffered a further injury in June 2004 when bending over in the shower at the end of his shift, he experienced severe pain in the lower right side of his back and suffered some restriction in movement. As this incident occurred on a Saturday he said there was no one to report it to. Accordingly, as he was already on light duties and being treated for his arm injuries, he went home to rest in the hope that his back would improve. 14 The applicant deposed he had planned to see the company doctor on the Monday morning. However, the pain and discomfort caused him to seek assistance at the Mater Hospital early on the Monday morning. X-rays and a physical examination did not show an obvious cause for his pain and the treating doctor suggested the problem may be muscular. The applicant said he was given some medication and when asked whether he wanted time off, he declined as he was already on restricted duties and would be seeing the company doctor later in the day. The company doctor, Dr Kisonas, agreed with the hospital doctor's prognosis and gave him his next shift off. He subsequently returned to work on light duties once more. 15 It was the applicant's evidence that in November 2004 the respondent sent him to work in the Fine Wire Galvanising Department on a job it felt he could undertake within his physical limitations. However, the job exacerbated his condition and as a result he had two days off work: At the end of my shift I was physically exhausted and in a lot of pain. In particular my lower back and hips were very painful and my arms were also very painful...In my opinion a 56 year old man with injuries to his arms and back would not be able to handle the job ... easily... 16 The applicant said he subsequently returned to the Fence Post Plant where he continued to work on light duties. He also advised the respondent the range of tasks he could undertake without aggravation to his arms or back. 17 It was the applicant's evidence that the respondent put him on three months' paid sick leave in July 2005. The respondent had requested that during that leave he continue to see Dr Kisonas and to work on an exercise program in order to make himself fit for duties without medical restrictions. He continued to see Dr Kisonas and the physiotherapists at the Medical Centre as requested. He deposed that after his last visit to the Medical Centre there was an eight week period during which no one from the respondent contacted him and, accordingly, he felt the company was trying to get rid of him. 18 The applicant deposed that in the period between November 2004, when the respondent first trialled him to work in the Fine Wire Galvanising Department, and December 2005 he was not offered any alternate position within the respondent's Newcastle operations. The applicant said that at his last meeting with the respondent on 2 December 2005, Mr Maher made some inquiries about a potentially suitable and available job in the Fine Wire Galvanising Department Store. A request was made for the respondent to investigate whether this job would suit the applicant. Shortly thereafter, the applicant deposed he was advised that the requirements of the job had been examined and an assessment made that it was not suitable for him. He was subsequently informed by the respondent that he would be dismissed. 19 The applicant deposed that as a result of the 2001 decision to restructure the Fence Post Plant, the then Manager, Mr Michael Wall told a meeting of all employees that " big changes " were going to happen in the Department. Mr Wall also said there would be " big cuts in the number of employees " and " changes in jobs when the new plant replaces the old plant ". The applicant said Mr Wall told the meeting that there would be redundancies and some employees could be transferred to other departments. During a private discussion with Mr Wall, the applicant stated he was asked " What do you think of the changes Momcilo? Do you want to stay or go ?" He replied that that it was up to the respondent. If the company wanted him to stay, he would and if not, he would take the redundancy. The discussion continued and Mr Wall then said " between you and me Momcilo I want you to stay " and he told Mr wall that he would stay. 20 The applicant said that from about September 2002 he had heard many stories about proposed changes in the Department and he also encountered some problems with a number of the other workers who were continually removing his name from the overtime list. Despite his complaints, he alleged management took no notice of him. 21 The applicant deposed that in or around June 2003 the respondent published a list showing those employees that were going to stay within the Department and those who would be moved when the Department was scheduled to be shut down for eight weeks to " move from the old technology to the new technology ". The applicant was told he would be moved to other operations for the eight week changeover period. During this time he asked Mr Wall for redundancy because he no longer felt he was wanted in the Department despite his years of service. Cross-examination 22 In his oral evidence, the applicant advised that he had been looking for employment since his termination and despite being referred to an employment agency by Centrelink, he had not been able to find suitable work. As a consequence, he had not earned any income since his employment was terminated. The applicant agreed that although he now felt a little better, it was difficult to tell if anything had changed with regard to his fitness or capability for work. He also confirmed that the medical reports provided at the time of his dismissal stated that he was not capable of returning to his pre-injury role with the respondent. 23 It was the applicant's evidence that apart from the monorail crane and the unloader, a piece of equipment that he was not familiar with at all, there were no other tasks within the Fence Post Plant that he could exercise. Re-examination 24 The applicant stated that he believed he would be able to drive a forklift truck for the majority of an eight hour shift without any problems being encountered. Mr Adrian Campbell 25 Mr Adrian Campbell is the Union delegate and has worked as a Production Operator in the Fence Post Plant since August 1993. He deposed that in late 2001 the then Department Manager, Mr Wall, gave a presentation to all employees regarding major changes planned for the Fence Post Plant. It was his evidence that Mr Wall had said at the time that the number of Operators would be reduced from 45 to 26 and all jobs in the Department would be significantly changed. A new classification structure would be required. Mr Wall had said the reduction in employee numbers would be achieved by redeployment to other departments or by voluntary redundancy. Mr Campbell's understanding was that two employees were given redundancy packages and the remaining employees were transferred to other departments. 26 Mr Campbell said major engineering problems had meant that the plant's performance had not reached design expectations and, accordingly, the respondent had employed a large number of short-term hire employees to maintain production. He said the new process was supposed to have automated the bundling and tying functions to alleviate the high rate of injuries sustained by operators. As this had not been fully achieved, some manual bundling still occurred. 27 Mr Campbell deposed that during his time working in the Fence Post Plant the applicant had been a dedicated crane driver. However, since the changes to the Department were made, the position had disappeared because the crane was now remote-controlled and the function had been "rolled up" into a new classification. Cross-examination 28 Mr Campbell agreed that since his affidavit was prepared, there had been quite a few changes to processing in the Fence Post Plant. In explaining some of those changes, he said that physically the Department was now a much easier place to work than it was previously. Mr Campbell gave evidence that there had been constant improvement in both manual handling and the rack maintenance process in recent times and, particularly since October and November 2005. He said that with these improvements, the respondent was no longer required to employ a large number of short-term hire employees.

29 Prior to calling the respondent's witnesses, Ms McNaughton submitted that the respondent asserts that the termination of the applicant's employment was not harsh, unreasonable or unjust. She said that for more than two years there was an attempt by the respondent to rehabilitate the applicant to his pre-injury role and enable him to seek an alternative role to perform within his physical restrictions. Mr Michael Wall 30 Mr Wall deposed that he had been an employee of BHP Steel and OneSteel for 15 years and had held the position of Manager, Fine Wire Galvanising Plant at OneSteel Wire in Newcastle since 2004. 31 Mr Wall provided some background reasons why the Fence Post Plant was required to be re-engineered in terms of new equipment and the introduction of new work structures. For example, posts were no longer dipped in coal tar due to environmental concerns. He said that at the commencement of the change process, the classification structure operated on a seniority basis, whereas the new work structure was based on skills. 32 Mr Wall said the process of determining the best production methods took several years and employees were regularly consulted regarding coating trials and related matters from the early 1990s. However, a formal process did not commence until 1999 when union delegates and employees were first advised of the re-engineering concept proposals. A number of employees had volunteered to become involved in the re-engineering process and all employees were advised of the proposed changes to the plant, particularly the restructuring of work to provide for multi-skilling and the rotation of work. Mr Wall said the changes to the plant and the implications for operators had been comprehensively communicated and discussed with them over a number of years. 33 Mr Wall deposed that in August 1999, all employees of the Fence Post Plant attended a communications session at the Phoenix Club in Mayfield, where they were advised of how the workplace would be changed, including the expected implications of significant change to traditional jobs within the plant. A further meeting was held in June 2000 when the respondent advised employees it anticipated reducing the workforce from 39 permanent employees to 26. Selection criteria for the 26 remaining employees would be based on work performance, skills and attendance rather than seniority alone. 34 One of the issues raised during the meetings conducted in August 1999 and June 2002 was the impact of the restructuring on dedicated crane driver roles. Cranes were to be converted to remote control and all operators, including former dedicated crane drivers, such as the applicant, would be required to rotate around most of the jobs in the plant on a daily basis. In particular, the 3 tonne crane that the applicant operated was unlikely to be used on a full-time basis as it had been previously used to dip the fence posts in tar, a process which was to be discontinued as a result of the re-engineering process. 35 It was Mr Wall's evidence that these meetings were part of a major workplace change consultation program that involved consultants facilitating meetings with employees, managers, union delegates and organisers. These meetings were convened to ensure that all employees had input into how the new plant was to operate, particularly the requirement for job rotation, the removal of seniority and the options each individual employee had in the future. This included early voluntary retirement, transfer to other departments within the wire mills or remaining in the Fence Post Plant working under the new classification structure. The consultation process also addressed the development of a new award structure and revised rates of pay. 36 In late 2000, Mr Wall said he spoke to each employee on an individual basis about their available options. These included taking early voluntary redundancy, transferring out of the Fence Post Plant to a position elsewhere in the Wire Mill or remaining in the Fence Post Plant and working as an operator rotating through a number of functions each day. Mr Wall said, in part, these discussions included how individual employees would be selected to remain in the Fence Post Plant in the event there were more employees than positions available. 37 In relation to his personal discussion with the applicant, Mr Wall disagreed with the applicant's version set out in his affidavit filed on 1 March 2005 and denied saying that he would like the applicant to stay. Mr Wall referred to a contemporaneous file note concerning his discussions with employees at the time, including the applicant, marked Annexure "B" attached to his affidavit. He deposed his recollection of the conversation as follows: Wall: What do you think you would like to do after the changes are made in the plant? Would you take an EVR or transfer departments? Jurisic: No, I don't want an EVR. I am only 52. I want to stay in the Department. Wall: We will be picking people based on work performance and skill. How do you think you will go with that selection process? Jurisic: I don't know if I do a good job or not. I've been working here for 27 years and should not have to go. 38 Mr Wall deposed that he was surprised that the applicant wanted to remain in the Fence Post Plant, particularly as the other two 3 tonne crane operators chose to take early voluntary retirement. Mr Wall said he was confident from his discussions with the applicant as well as the meetings and communication sessions that had been held over several years, that he understood the options available to him. Mr Wall said the applicant made a considered decision to stay employed in the Fence Post Plant after it was re-engineered. 39 Mr Wall conceded that the total number of operators immediately prior to transition from tar-coating to electro galvanising could have been 45. However, he said Mr Campbell's evidence stating there were 45 operators in the Fence Post Plant post transition was incorrect and at the time of transition there was less than 39 permanent employees. He confirmed that the number of operators in the plant had been expected to drop to 26 through transfers and natural attrition. In the years leading up to the transition, engineering difficulties had meant that certain positions were filled with short-term hire employees or contractors. 40 With reference to Mr Campbell's statement, Mr Wall confirmed that the loading and unloading processes whilst automatic did require supervision. He said further engineering work was required to achieve automatic tying and this work continues to be done manually. Contractors are primarily used in the tying process and operate within the new classification model. Mr Wall also confirmed that the crane driver function had been absorbed into the general functions of Operator Level 2. 41 In response to the applicant's evidence, Mr Wall denied that management took no notice of his claim that his name had been removed, as alleged, from the overtime rosters. He also said the applicant chose to take annual leave for the period of the eight-week shutdown in or around June 2003. Mr Wall recalled the applicant had asked for redundancy in December 2002. He subsequently advised the applicant that redundancy was not available as the respondent would actually require more labour than had been estimated to operate the new plant and employee numbers had already been reduced by the required amount. Three other employees who made similar requests at the time for redundancy were given the same response. 42 Mr Wall deposed that in November 2004 a position for the applicant in the Fabric Welding department was assessed by Mr Peter Proctor of Health and Safety Solutions and found to be a suitable alternative role for the applicant to perform given his physical restrictions. Mr Wall had no recollection of stating that he expected the applicant to turn out 150 rolls per shift as alleged by the applicant. However he did recall saying words to the effect " you will need to get up to the average production of the other employees in this job ". Mr Wall said he told the applicant this as he was expected to perform the job, following an appropriate training period, as a substantive, rather than a light duties position. 43 Mr Wall referred to the applicant's statement of 24 February 2006 at point 18 and deposed that the number 5 machine in Fine Wire Galvanising was selected as a suitable alternative position for the applicant after assessment by Health and Safety Solutions. Within the Fine Wire Galvanising Department this position is generally considered a light duties role. It is also considered suitable for employees who are injured at work and require rehabilitation before their return to their pre-injury duties in a more physically demanding position. Cross-examination 44 Mr Wall stated the applicant was nominated as an Operator Level 2 following the restructure, despite him not meeting all the skill requirements of the classification. He confirmed there was a general arrangement for all employees to receive the necessary training required under Level 2. He conceded there was no specific training plan established for the applicant. He also confirmed it was his view that currently there were no short-term hire employees working in the Fence Post Department. 45 Mr Wall confirmed that the applicant, together with Messrs Dean, McDonald and Walker were informed in or around December 2002 that no redundancy offer was available because more labour was required than had been proposed, due to delays in equipment and process re-engineering improvements. 46 Mr Wall stated that he had sought to place the applicant in the position of operator on the fabric 5 machine and a sweeper position that Mr Maher had alerted the respondent to. Re-examination 47 Mr Wall confirmed that the reason why few employees met the skill requirements of Operator Level 2 was that the plant was new. He also confirmed that only a small proportion of the 39 employees in the Department were required to be trained in the plating line technical process. 48 It was Mr Wall's evidence that at the time the applicant asked for redundancy in December 2002 he had not sustained his workplace injury. Further, he also confirmed that the focus of the applicant's rehabilitation program was to return him to his pre-injury role rather than an alternative position. Mr Jeffrey Green 49 Mr Green deposed he has been employed at OneSteel Wire Pty Ltd and BHP for 12 years and commenced work as Fence Post Plant Manager on 24 November 2005.

50 Mr Green deposed that the applicant was employed as a Fence Post Plant Operator Level 2 and explained that a Level 2 Operator was required to operate presses, a blaster, a 10 tonne pendant crane, the monorail, loader, unloader, electroplating line and perform general housekeeping duties. In his affidavit evidence, he detailed the indicative and specific tasks that a level 2 Operator must perform: Presses: Feed bars into the machine for approx 2 hours per day, undertake Punch changes, Blade changes, Length changes and inspect product quality. Remove "jam ups" and empty scrap trolleys every couple of hours and clean around the machine.

Blaster: Feed Y bar into a machine by pulling bars down a table onto the in feed conveyor. Load shot and refill the hopper by lifting bags of shot weighing 25 kg and putting them into a drum, use a crane to lift the drum and rotate the drum via a mechanical device to pour the shot into the blaster.

10 tonne Pendant Crane: Operate the crane to unload trucks, open bundles ready from processing using bolt cutters to open straps, load blaster and presses with feed and empty the scrap bins. Monorail: Unload press pits and load the plating linefeed tables, place slings around the bundles and onto a lifting beam to lift the bundles of 400 posts, fill the buffers, place 3 bundles in buffer racks and insert dunnage between each bundle, take bundles to the northern end of the mill for strapping and at times assist the operators in strapping the bundles.

Loader: Ensure the posts orientated correct way to feed out onto load tables, align the posts manually with a device called a steel pusher, stop the process if there is issue with loading, pick up posts off the ground if they fall off during the loading process and position the posts back onto the load tables.

Unloader: Operate the ram truck to remove bundles from the unload cradles, operate the 3 ton crane to place bundles in the strapping stand and the strapper to package the posts ready for dispatch. Level off the collector cradles manually by using a hook to prevent "fiddle sticking" and align post ends in bundles by using the post pusher. 51 Mr Green said that in late January 2005, he met with the applicant to discuss his rehabilitation plan and the tasks he was able to perform in the Fence Post Plant. He also recalled discussing the applicant's rehabilitation plan with him in late January or early February 2005. At that time, the applicant was certified fit to perform his pre-injury duties for 3-4 hours per day and undertake light duties for the balance of his shift. However, the applicant was not performing three hours of normal duties per shift and instead was working the monorail. He discussed the rehabilitation process and asked the applicant about the exercises the physiotherapist had given him to perform. The applicant said he had not been performing the exercises as they did not help his condition. 52 Mr Green said he had worked in conjunction with the rehabilitation provider, Mr Proctor, to return the applicant to full duties. However, in early April 2005 when the applicant was upgraded to his full pre-injury duties, he only completed one shift when he reported that he had felt pain in his elbows. 53 Mr Green deposed he met with the applicant on 11 April 2005 to discuss which tasks from his pre-injury role as a Level 2 Operator that he could and could not perform. He said they discussed each task individually and the applicant explained aspects of those tasks that he would not be able to perform: Presses: Unable to deal with product jams, particularly hitting the feed with a hammer to free up and release posts as he jarred his elbow.

Blaster: Unable to free jams in blaster as pulling action caused problems with his elbow. Unable to lift shot bags.

10 tonne Pendant Crane: Unable to open straps using bolt cutters.

Loader: Unable to physically pickup posts and put them back on load tables. Operating pusher was also difficult.

Unloader: Unable to pull or align posts in cradles and scrap posts manually. Unable to strap bundles as strapper is too high and can't lift his elbows above waist. 54 Mr Green said he and the applicant also discussed the applicant's physical capacity and each said words to the effect: Green: What works do you think you can do (sic) perform?

Jurisic: I could do crane driving. I wouldn't get pain then. The pain comes from doing heavy work. 55 Mr Green deposed that as part of his light duties, the applicant operated the monorail when this was required and he would also perform some press work when other operators took crib breaks. When working on the monorail, he could not help other operators with strapping bundles as this activity caused him pain. These tasks alone do not form a full position within the Fence Post Plant classification model. 56 Mr Green said that all operators in the Fence Post Plant rotate through a range of tasks based on their skills and competency. Rotation was introduced to minimise repetition and reduce manual handling injuries caused by repetitive strain. Tasks requiring heavy physical loads were alternated with lighter tasks such as operating the monorail. Normally, two employees each shift would rotate through the monorail tasks during the course of the week. Mr Green confirmed that the lighter duties tasks identified by the applicant were performed by all employees on a rotating basis to minimise the risk of over-exertion and to break up the heavier tasks. Unfortunately, those tasks did not constitute a whole job within the classification structure. 57 Mr Green further said that if the applicant performed the identified tasks on an ongoing basis, it would disrupt the rotation process and other employees would be required to spend longer periods each day performing the heavy tasks. He said that while he recognised the respondent's obligation to rehabilitate employees injured at work, allowing an employee to only perform the lighter tasks on an ongoing basis was not sustainable. He also said that the respondent was continuing to develop more automated systems and develop work systems designed to reduce the risk of injury to operators. 58 It was Mr Green's evidence that on 21 July 2005 he attended a meeting with the applicant, Mr Richard Cusick, the respondent's then Human Resources Manager and Mr Maher. Mr Gavin Gawthrop, Manager, OneSteel Workers' Compensation was also present and he stated that the respondent was denying any further liability for the applicant's injury sustained on 27 November 2003. 59 The respondent's representatives subsequently discussed the options for the applicant in words to the effect of: We do not have any sustainable role for you because of your restrictions. We have tried to place you in certain roles however we have not been able to do this because of your restrictions. As you are a long-standing employee, we want to give you time to see if you can address your physical issues and get back to normal duties. We provided Mr Jurisic (with) 3 months sick leave to seek the necessary treatment to resolve his (sic) physical health issues. If you need any support or assistance with things like physiotherapy, you should come and see us and we are willing to support you. 60 Mr Green said that he had numerous discussions with the applicant who, in his view, had always demonstrated an understanding of those discussions and readily responded to the questions asked of him from time to time to check his understanding. In Mr Green's opinion, the respondent had exhausted all efforts in trying to find a suitable position for the applicant. However, it was unable to do so because of his physical limitations. It was also not sustainable to allow him to perform light duties in the Fence Post Plant on a long-term basis, as this would impact on other employees who would be unable to perform lighter tasks on rotation with heavier tasks. Mr Green said he was not immediately aware of any other roles the applicant could perform consistent with his physical limitations. Cross-examination 61 Mr Green confirmed the extent of the respondent's search to establish an alternative position for the applicant within OneSteel as follows: MAHER Q. And have you been involved in actively searching for alternate positions across the company for Mr Jurisic? A. Yes. I'd answer yes, and my role in that was to, through Rob Hook initially who was our HR manager at the time, and we progressed looking for alternatives across not only our site but the other sites and in relation to crane driving predominantly in the rod and bar and the bar mills. COMMISSIONER: Q. What do you mean by other sites, Mr Green? A. Rod and bar and the bar mill. I think pipe and tube we asked the HR managers in those centres if there were opportunities available, outlined some of Momcilo's capabilities at the time but we weren't able to find a crane driving job that would fit his restrictions given that most of those businesses were undertaking similar improvements such as ours. MAHER: Q. So is your evidence that you only looked for crane driving based work across the business? A. Predominantly, yes, at that time we were looking at whatever we could find but we asked specifically if there were crane driver roles available and this would've been in February/March last year that we were looking at those sort of opportunities because Mick had indicated - Momcilo had indicated, sorry, that he was more than capable of performing those sorts of duties. 62 Mr Green confirmed that the forklift truck operator working in the unloader area was required to undertake additional duties, which he detailed as follows: Q. And will it be fair of me or could I put to you that the major functions required of a person working down at the unloader is to drive the forklift? A. It's part of the role. Yes, there'll be a, probably - I'd hate to put a timeframe on it but it'd be, I don't know, 40 to 50 per cent of the time I'd suggest that they'll be on a truck removing product but they'll also be strapping product as well. So it's only a component of the time. We haven't really done any analysis yet to understand how that will actually go. We may need to make some changes to our thinking on that as we progress but there'll be a man there the whole time. He'll be operating the unloader, he'll be that - that means opening, removing cradles, he'll be placing units outside the bottom doorway to be removed and he'll be strapping bundles at times as required. Q. And what's the process for strapping bundles. How does that happen? A. Okay. There's - the cradles as they come out of the plating line if the plating line runs when we're effectively not packaging we won't have sufficient cradles, so all product off the EPL will have to be - off the plating line will have to be strapped. So that requires the operator to lift the cradle out of the plating line and then place it in the strapping unit, apply the straps and then lift the bundle out and remove the cradle. The other method that product can end up in the strapping unit is via the presses. At times some bundles are required to go out for external processing so those units are then strapped in the same cradle and they're delivered there by a monorail crane. So they'll be picked up out of the pits by a monorail and the monorail crane driver will deliver those to the strapper and they'll be strapped up there. Now, again, that task may be performed by the guy who's in the unloader area. It may be performed also by the monorail operator. 63 Mr Green also confirmed the applicant's termination was not due to any lack of skills or training on his part and said that if he had been capable of running the presses, operating the blaster, driving the monorail, working the loader and unloader, as everybody else in the Plant can, he could have been placed in the Plant. However, to date, the applicant has not been able to perform a full function in those roles. Re-examination 64 Mr Green confirmed operators undertook rack maintenance at the start of each shift and due to his injury, the applicant was unable to undertake this role and, the attendant duties. Mr Green said that if one employee was dedicated to operate the monorail crane, job rotation would diminish and accordingly, other employees would be exposed to the risk of back injury. Mr Graham Hills 65 Mr Hills deposed he was appointed Human Resources Manager in May 2005 and he had reviewed the applicant's workers' compensation and personnel file. He confirmed the applicant had suffered an injury on 27 November 2003 and was placed on a suitable duties program from February 2004. In March 2004, a return to work plan was established with the stated goal of returning the applicant to his pre-injury duties as a Fence Post Plant Operator. In May 2004 the applicant commenced performing light duties in the Fence Post Plant in accordance with his return to work plan. 66 Mr Hills deposed that the applicant's workers' compensation file sets out a number of discussions that were held throughout 2004 with the applicant and representatives from the Union concerning his capacity to return to pre-injury duties. Mr Hills said that in November 2004, the respondent and the applicant agreed that alternative duties outside the Fence Post Plant should be identified, as it was now apparent the applicant would have difficulty returning to his pre-injury role of Fence Post Plant Operator. 67 Mr Hills said a position in the Fine Wire Galvanising Department was subsequently identified as a suitable position for the applicant to undertake given his physical restrictions. However, when the applicant commenced this position in November 2004, he could only work for one to two shifts as he incurred and reported increased pain. Accordingly, he was unable to continue in that role. The applicant returned to the Fence Post Plant where he performed light duties and continued to perform light duties until mid-2005. 68 On 21 July 2005, the applicant met with Mr Cusick, Mr Green, Fence Post Plant Manager and Mr Maher to discuss the applicant's work situation where it was explained there had been no improvement in his physical condition. The respondent had been unable to identify alternative roles the applicant could perform given his physical restrictions. Suitable duties at the Fence Post Plant were subsequently withdrawn and it was agreed that the applicant would take 13 weeks' of accrued sick leave in an effort to improve his fitness and improve his capacity to return to normal duties. The respondent offered the applicant assistance with that objective. 69 Mr Hill deposed that at the conclusion of his sick leave, the applicant attended Dr Kisonas for an assessment of his physical capacity to return to his pre-injury duties. Dr Kisonas' report stated: I understand that Mr Jurisic has had a complete break from work for almost three months now and when I examined him on the 25th October 2005 he still complained of pain and appears to show little desire or effort to want to return to his full and usual work duties. I feel that this is entirely of his own choice. As far as his duties are concerned it is unlikely he will ever return to full or productive work while ever he feels this way. He had apparently wanted to retire some time ago and wanted a 'golden handshake' and he also indicated he would get better if he were allowed to simply go back to crane driving but I understand that role no longer exists. Most of his current problems now appear to be more of the normal things one would expect in a man of his age. 70 On 3 November 2005, Mr Cusick met with the applicant and the Union to discuss the applicant's future employment prospects. The meeting considered Dr Kisonas' report and the applicant's confirmation that he was unable to return to his pre-injury duties as a Fence Post Plant Operator. Based on this information, and the respondent's inability to find a suitable alternative position, the respondent terminated the applicant's employment, effective 14 November 2005. The applicant received five weeks' pay in lieu of notice, accrued leave entitlements and a further five weeks' pay as an ex gratia payment in recognition of his long service with the respondent. The termination letter read in part as follows: Your employment with OneSteel has been under review since suitable duties were unable to be provided to you in July. As we confirmed with you at the meeting on the 21/7/2005, which you attended (with) your Union Organiser Mr Maher, despite extensive efforts we have been unable to successfully achieve your return to normal duties or to place you in suitable duties elsewhere within the business and we are unable to continue providing suitable duties in the Fence Post Plant. As a result of this you were placed off work on the understanding that you would take steps to improve your capacity to return to your normal duties. We offered assistance with this if you felt you needed it. This offer was not taken up and unfortunately the situation has not been remedied. 71 Mr Hills said he met with the applicant, Mr Maher, Mr Campbell and Mr Green on 2 December 2005. At the Union's request, the respondent retained an interpreter to ensure that the applicant understood what was occurring. The applicant subsequently confirmed that he had understood that the respondent had tried to find alternative roles for him to perform that were within his physical capabilities. Mr Maher requested the respondent to review all available positions again to establish whether there were any roles suitable for the applicant to perform. The respondent agreed with this request. However, if no suitable positions were identified, the termination would stand. 72 Mr Hills deposed he reviewed all available roles within the company and consulted with the relevant site managers about possible roles the applicant could safely perform. Only one position was identified, the position of sweeper in Fine Wire Galvanising. In this regard, he asked Mr Andrew Folwell, a Return to Work Co-ordinator with qualifications in occupational therapy, to conduct a workplace assessment of the role to determine the physical demands of the position. Simply put, Mr Folwell was asked to provide advice whether the applicant could safely perform the role, given the inherent physical demands of the position and the applicant's physical capabilities. Mr Folwell's Workplace Assessment Report drew the following conclusion: Following matching of Mr Jurisic's medical history with the job assessed within this report, it is the undersigned's opinion that this position is not suitable for Mr Jurisic. Specifically, Mr Jurisic has a long history of back and bilateral upper limb pain, which would likely be aggravated by such tasks as pulling wire from beneath the sweeper. Postures required to hand sweep and clean the dustbin are also likely to aggravate Mr Jurisic's long term condition. It is recommended that a more sedentary position be explored for Mr Jurisic to reduce the likelihood of any aggravation to his underlying condition. 73 In referring to the applicant's affidavit evidence that " OneSteel has an obligation to ensure the health and safety of all employees, " Mr Hills deposed that on the information available to it, the respondent would have breached its occupational health and safety obligations had it permitted the applicant to trial the sweeper position. Mr Hills subsequently contacted Mr Maher to advise the Union that the sweeper position was unsuitable and, as no other positions were available, termination of the applicant's employment would have to stand. Mr Maher requested Mr Hills to explain this decision to the applicant at his home as he could not be contacted by telephone. 74 Mr Hill deposed that on 23 December 2005 he visited the applicant at his home and said to him words to the effect: We have now done a workplace assessment and the sweeper job in Fine Wire Galvanising was not suitable due to your physical restrictions and problems that you have. The company's decision to terminate your employment stands. 75 Mr Hills emphasised that the tasks the applicant claims he could perform without aggravation to his arms and back are limited and do not constitute a complete position anywhere within the respondent's operations. The decision to terminate the applicant's employment was not taken lightly and was based on the available medical evidence that indicated he could not return to his pre-injury role. There were no other positions that he was capable of performing given his physical limitations. Cross-examination 76 Following Mr Maher's extensive examination concerning the various and individual duties available within the respondent's Newcastle operations, Mr Hills refused to concede that there were roles the applicant could adequately and safely perform within the Fence Post Plant. The tasks the applicant could safely perform were too limited to form a substantive role and additionally, the applicant could not fully rotate the duties required within the Operator 2 classification. 77 With respect to the sweeper position, Mr Hills was asked why the respondent did not trial the applicant in the role, as it had previously done in the meshing operation of the Fine Wire Galvanising Department. Mr Hills replied that the respondent had received professional advice the job would harm the applicant and it had a responsibility not to aggravate his injuries. Re-examination 78 Mr Hills confirmed that following consideration of all the available roles within the respondent's Newcastle operations during November and December 2005, the applicant was deemed unsuitable due to his lack of qualifications and physical restrictions. The reason the applicant was permitted to trial the Fine Wire Galvanising Department role was because an assessment had identified the position as being suitable, given the applicant's then physical restrictions.

79 Mr Maher submitted that on the applicant's own evidence there were jobs that he could perform and jobs in the Fence Post Plant and referred to Dr Kisonis' letter of 1 November 2005 where he said: ..he also indicated he would get better if he were allowed to simply go back to crane driving but I understand that role no longer exists. 80 Mr Maher submitted that the applicant felt Dr Kisonis' statement made it look as if his physical problems would miraculously disappear if he was given the job of dedicated crane driving. In his many discussions with Dr Kisonas, department management, rehabilitation providers and the Workers' compensation Department, the applicant had said he could do a number of tasks that would not exacerbate his injury or would have little or no impact on it. He did concede, however, that there were a number of tasks that he could not perform. 81 Mr Maher said the Union rejects the respondent's evidence concerning its extensive efforts to find alternative suitable duties across all of its Newcastle operations. He inferred the evidence of Mr Green and Mr Hills concerning the attempt through the respondent's human resources network to find some dedicated crane work that would be suitable for the applicant was narrow. However, he noted Mr Green conceded that across the business, a proportion of the crane jobs were, in any event, also subject to change.

82 Mr Maher said the only real evidence of these " extensive efforts " was the fact that the applicant was trialled in a meshing position in the Fine Wire Galvanising Department. He noted that as a result of this trial, the applicant incurred some physical problems and was not able to carry out the requirements of the job. Mr Maher contended the only other " extensive efforts " evidence was that at the last minute in December 2005 he had requested the respondent to look at a sweeper position in the Fine Wire Galvanising Department. However, that was not trialled as there was advice from an occupational therapist the position was unsuitable and a trial may further injure the applicant. Mr Maher contended this was fundamentally wrong and the applicant should have been given the opportunity to trial the position given his long and valuable service.

83 Mr Maher submitted that the evidence of Mr Green and Mr Hills was that the applicant was unable to fully rotate as an Operator within the Fence Post Plant. He referred to Mr Green's evidence that in the event the applicant was only able to work the monorail crane, other operators would be precluded from rotating through that task and obtain relief from some of the more physical aspects of the job. He compared Mr Green's evidence to that of the applicant who maintained there were a number of other tasks he could undertake, apart from crane driving, that would continue to give other operators a "fair go" in rotation within the Department. 84 Mr Maher submitted that the respondent had made concessions for other long serving employees in the Fence Post Plant and the applicant simply wanted to be given some decent consideration in light of his limitations. 85 The Union believed it had given the Commission sufficient reason to intervene in the decision to terminate the applicant's employment on the basis that the respondent's decision was harsh, unreasonable and unjust considering the applicant's lengthy service, good employment record and age. Mr Maher referred the Commission to Loty and Holloway v The Australian Workers' Union (1971) AR 95 at 99 and concluded the respondent failed to give the applicant "a fair go all around" and reiterated the Union's submission that the applicant be reinstated without any loss of pay.

86 Ms McNaughton commenced her submissions by agreeing that "a fair go all around" is a reasonable test of a harsh, unreasonable or unjust dismissal. She said however, that the Commission needs to take into account the relevant legislation and submitted that pursuant to s84 of the Act, the respondent contends the applicant's termination was not harsh, unreasonable or unjust. For more than two years the respondent had sought to rehabilitate the applicant to his pre-injury role or relocate him to a suitable alternative role that he could perform within his physical restrictions. 87 In the respondent's view, the medical evidence, including the report from Dr Kisonas annexed to Mr Hills' affidavit, indicated the applicant was unlikely to return to his pre-injury role and management had established there were no available roles that he could perform. Accordingly, the respondent had no alternative but to terminate the applicant's employment and the process it had followed was fair and reasonable. 88 In relation to that process, Ms McNaughton submitted that s88 of the Act sets out issues which must be considered in determining whether the dismissal was unfair, unreasonable or unjust. 89 Ms McNaughton submitted the Commission may, if appropriate, consider whether the reason for the dismissal was given to the applicant, and if the applicant sought but was refused reinstatement or re-employment, whether a reason was given for that refusal. If any such reason was given, whether it has a basis in fact and whether the applicant was given an opportunity to make out a defence, or to give an explanation for his or her behaviour to justify reinstatement or re-employment. 90 Ms McNaughton said the nature of the applicant's duties immediately prior to dismissal were a relevant consideration and where reinstatement or re-employment is sought, the likely nature of those duties, if the applicant was to be reinstated or re-employed, requires consideration. 91 Ms McNaughton submitted that the respondent provided a very clear reason that the applicant was physically incapable of safely performing work at his pre-injury occupation of Level 2 Operator in the Fence Post Plant. The nature of his physical incapacity meant that there were no other positions available which he could perform on an ongoing basis within the Fence Post Plant or elsewhere in the plant. 92 Ms McNaughton said medical evidence upon which the respondent relied indicated that the applicant was not able to return to his substantive role as a Level 2 Operator at that time and was unlikely ever to return to that role. She acknowledged there were some Level 2 Operators within the Fence Post Plant who did not actually perform the full range of tasks of the classification. Specifically, the operators did not undertake some of the plating line tasks and others did not operate the 10 tonne crane. She maintained these plating line tasks are specialised in order to maintain quality standards and the 10 tonne crane is not an issue in terms of rotation because of the number of people who are able to complete work. 93 However, Ms McNaughton submitted that the majority of the Level 2 Operators engaged in the Fence Post Plant, regardless of whether they are longstanding employees or not, are able to perform the full range of functions which the applicant is not able to do. She said the applicant was provided with suitable duties and rehabilitation over a period of two years. Genuine attempts were made to find alternative roles for the applicant to perform and this was supported in evidence by Mr Hills. The Site Manager, Mr Stephen O'Donnell, had also considered all possible roles that the applicant was capable of performing in terms of his qualifications and physical capacity. 94 Ms McNaughton further submitted that the nature of the applicant's injuries meant there were very few roles available that he was capable of performing. In August 2005, the applicant was provided with an opportunity to seek additional assistance and was given 13 weeks' paid sick leave to undertake a resistance exercise program to establish whether he was able to improve his physical capacity. He was made aware at that time that if he was not able to return to his normal duties at the end of that period, his employment would be terminated.

95 Ms McNaughton said that prior to termination, the applicant was performing limited duties of a Level 2 Operator. He was limited to three to four hours of pre-injury duties per day and of those pre-injury duties, he was further limited to only performing the full functions of the monorail tasks within the Fence Post Plant. He had no capacity to perform the complete functions of any other role within the position of Operator Level 2, such as the presses, the blaster, the loader and unloader. Accordingly, the applicant would have required some assistance in fulfilling all of those roles. The applicant was capable of performing some tasks but the sum of those tasks were insufficient to create a substantive role. 96 Ms McNaughton submitted that operating the monorail crane as a dedicated crane driver position would have a serious and negative impact on other employees who would be unable to rotate through this lighter function to give them some relief, as Mr Green had said in his evidence. Permanently modified duties which the applicant was capable of performing were not viable simply because he was only able to perform some tasks rather than the substantive role. 97 Ms McNaughton referred to IGA Distribution Pty Limited and Moses No.2 (2002) 114 IR 307 and submitted the Full Bench had noted that it was incumbent on an employer to establish, after proper investigation and consideration, that a worker's incapacity represented an inability to discharge the employment obligations relevant to the employee's position, before such incapacity could be used as proper justification for the dismissal. 98 Ms McNaughton submitted the respondent contends that it has more than amply demonstrated the onus to establish the applicant's incapacity as a result of some two years of rehabilitation that was focused on his return to pre-injury duties and also in terms of the available medical evidence. The respondent had carefully reviewed all the medical evidence from the applicant's treating doctor including evidence obtained immediately prior to his termination. 99 The respondent had also considered the opinion of an occupational therapist who reviewed the sweeper role identified as a possible alternative position. Accordingly, it had fulfilled its obligation to establish the applicant's incapacity. The failure to allow the applicant to trial the role of sweeper was based on expert opinion which highlighted that he could further injure himself. 100 Ms McNaughton submitted the nature of the applicant's injuries and his physical capacity severely limited the respondent's ability to find alternative substantive roles that he could perform safely. Crane work was certainly an option pursued as evidenced by Mr Green and Mr Hills, primarily because it met the applicant's physical limitations. The fact that the Fine Wire Galvanising position was trialled indicates that more extensive options were pursued throughout the rehabilitation period. Specifically, the fact that no other alternative position was found was not due to the respondent's inability or reluctance to search for those roles but rather, its inability to find a position to accommodate the applicant's incapacity. 101 Ms McNaughton referred to IGA and Moses No.2 and noted that any decision about dismissal due to incapacity should be the subject of ample direct consultation. She submitted that the respondent has had numerous discussions with the applicant and his Union representatives and he conceded as much in his evidence. Suitable alternative roles were pursued and these were discussed with the applicant and his Union representatives and the options available to him were canvassed fully. 102 Ms McNaughton said the respondent took into account the applicant's length of service by providing the statutory requirement of five weeks' notice plus a further five weeks' pay when it became clear that there was no alternative positions available. Despite some changes to the plant, the evidence from Mr Green indicated that the applicant was not able to perform more than the monorail function in full. The loader, unloader and the forklift were roles that the applicant, by his own admission, simply could not perform. 103 Ms McNaughton submitted that the decision made in November 2005 to dismiss the applicant was based on clear medical evidence, the evidence of the applicant in terms of his own physical incapacity and the available work that he could perform as a substantive role. She submitted the termination of his employment was not harsh, unreasonable or unjust as there was a substantive reason for termination and procedural fairness requirements were clearly observed. 104 Ms McNaughton also submitted that should the Commission find that termination of employment was harsh, unreasonable or unjust, reinstatement and re-employment were impractical remedies due to the nature of the applicant's injuries and incapacity. She said that permanently modified duties were not an option and the applicant's situation can be distinguished from IGA and Moses No 2 where the employee was performing a substantive role with lighter physical requirements.

105 Ms McNaughton reiterated that there were no substantive roles available that the applicant was capable of performing and if the Commission does find against the respondent, any payment order to be made by the Commission should take into consideration the five weeks' notice which has already been paid to the applicant as well as the five weeks' additional pay provided in recognition of the applicant's length of service. 106 Ms McNaughton stressed the applicant was capable only of performing some tasks within a particular function and those tasks did not form a complete and substantive role. It was therefore unreasonable to expect the respondent to maintain an employee in such a supernumerary position.

CONSIDERATION 107 An issue for determination in this matter goes to the question of the applicant's fitness to undertake the duties of an Operator 2 within One Steel's Fence Post Plant and whether the provisions of s 8 of the Occupational Health and Safety Act 2000 operate in such a way as to prevent the respondent from reinstating him to a position where the inherent requirements and duties of that position, on the advice of the treating doctor and other professional opinion, sharply identifies there is a risk of further injury to him and possibly other employees who may not be afforded rotation into the lighter duties of crane driving. 108 Clearly, the respondent has a duty to ensure the health, safety and welfare at work of all employees and, in this regard, has identified potential risk to other employees as a consequence their restricted opportunity to regularly rotate through the tasks required of them and, implicit in the classification of Operator 2, in the event the applicant was reinstated to a crane driving position.

109 Neither Dr Kisonas nor Mr Proctor were brought by either party to give evidence or be subject to cross-examination in respect to their professional opinions. The Report from Dr Kisonas relied upon by the respondent and dated 1 November 2005 states unequivocally: I understand that Mr Jurisic has had a complete break from work for almost three months now and when I examined him on 25 October 2005 he still complained of pain and appears to show little desire or effort to want to return to his full and usual work duties. I feel that this is entirely of his own choice. As far as his duties are concerned it is unlikely he will ever return to full or productive work while he ever feels this way. He apparently wanted to retire some time ago and wanted a "golden handshake" and he also indicated he would get better if he were allowed to simply go back to crane driving but I understand that role no longer exists". Most of his current problems now appear to be more of the normal things one would expect of a man of his age. Pursuant to occupational health and safety law, the respondent is required to ensure that systems of work and the working environment of all employees is safe and without risks to health. There is no medical evidence to support the proposition that the applicant is able to perform the major tasks of an Operator 2 required by the respondent, and in any event, on the evidence before the Commission, the extent of the applicant's injuries assessed shortly before his dismissal strongly suggested he would be put at risk of further injury.

110 Against the backdrop of the plant restructure and new classification structure, I am not satisfied the applicant could be returned to work in the position he occupied immediately before his dismissal on permanently modified duties without risk of further injury to himself or to other operators, who may lose the opportunity to undertake crane driving as a relief from heavier and repetitive strain work. 111 I have also considered the obligations upon the respondent to adopt fair procedures when considering the dismissal of an employee. On the evidence before the Commission, the respondent has exercised the onus upon it to initiate inquiries into the suitability, or otherwise, of alternative employment for the applicant and I am satisfied there was no position available that was suitable for the applicant, given his medical restrictions. 112 The purpose of the applicant's rehabilitation programme was to return him to his pre-injury duties. On the evidence of the respondent, it is my view that if a suitable on-going position for the applicant had become available, he would have been considered for that role. Unfortunately that situation, despite strenuous efforts by the Union, did not arise. 113 No evidence was brought before the Commission to support a proposition that in the foreseeable future there was some prospect that the applicant would competently return to his pre-injury duties. Rather, the evidence was that the injury appeared permanent and there was a high degree of risk of re-injury if he was returned to a role other than dedicated crane or limited forklift driving. 114 Against the backdrop that it was unlikely the applicant would return to his pre-injury duties, the respondent sought to trial the applicant in an alternative role in the Fine Wire Galvanising Department in November 2004. However, the trial was abandoned almost immediately thereafter when the applicant reported that he had experienced elevated pain. A year later and following some 13 weeks' sick leave to assist the applicant improve his fitness levels, the respondent, at the Union's request, investigated whether the applicant's physical restrictions would allow him to perform a sweeper role. Unfortunately, that investigation, which included an occupational therapist's assessment of the tasks required to be exercised by a sweeper, determined that the applicant was unable to perform that role due to his physical restrictions and incapacity. 115 Shortly after the respondent became aware of the applicant's injury, a rehabilitation programme was actioned in accordance with the respondent's statutory obligations and the then available medical advice, with the goal of returning him to his pre-injury duties. Dr Kisonas and designated officers of the respondent reviewed the applicant's condition to ensure that, where possible, the applicant remained active in the workplace on suitable duties as part of his rehabilitation programme. 116 I have closely considered all of the evidence and submissions put to the Commission in this matter. Based on the weight of medical and related evidence, it is my finding that the applicant has not proved that he is fit for employment as an Operator Level 2. I have also formed the view that the respondent has afforded the applicant procedural fairness and "a fair go all round". 117 There is insufficient evidence to support the applicant's contention that during the respondent's various discussions with him during the Fence Post Plant restructure, he was formally offered a redundancy. Rather, the evidence supports the position that the respondent was simply seeking expressions of interest for voluntary redundancy at the time.

118 After consideration of all the material, evidence and submissions before me in this matter, I find that the termination of the applicant was not harsh, unjust and unreasonable in the circumstances of this case.

119 The application is dismissed. I so order. 120 Matter No IRC 6849 of 2005 is so concluded.

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