Margaritte Joanne Colefax v Secretary, Department of Education

Industrial Relations Commission (NSW)|2018-11-12

Ms K Nomchong SC with C Micali of counsel (Respondent)

Crown Solicitor (Respondent) File Number(s): 2018/00169509 Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Citation: [2018] NSWIRComm 1033 Date of Decision: 11 May 2018 Before: Commissioner Murphy File Number(s): 2017/00116629

Judgment

Margaritte Colefax, the appellant, was a teacher employed by the Department of Education. She had been employed since 1989. On 29 March 2017 she was medically retired from the Teaching Service, pursuant to a determination made by the respondent under s 76(1) of the Teaching Service Act 1980 (NSW).

Principles on leave to appeal

Section 188 of the Industrial Relations Act is in these terms: 188 Appeals to Full Bench by leave only (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister.
The principles in relation to the grant of leave to appeal a decision of the Commission were summarised by the Full Bench in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16, as follows (at [10] and [11]): "It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal. The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]."
In Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 the Full Bench stated at [12] and [13]: "Further, we reiterate the observations of the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392, referring to the then-recently enacted provisions of the Act: "The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State. We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held, immediately before the statement set out above, that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach. Lastly, we add, as the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. This is by no means a new element of the Commission's jurisprudence; it has long been held that an appellate body in an appeal of this nature will only substitute its own judgment where the first-instance decisionmaker has fallen into error of law, or made a finding of relevant determinative fact that is demonstrably wrong: Drake Personnel Ltd v Workcover Authority of NSW (1999) 90 IR 432 at 440. There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal."
The principles outlined above have since been approved in numerous decisions of the Full Bench. It is not necessary to list them all. We will apply the same principles.
It is also relevant to the present case that an appeal which lacks wider application than the interests of the parties will not normally be granted leave: Stegbar v Transport Workers' Union (2008) 173 IR 350 at 359; [2008] NSWIRComm 104.

Preliminary observations

This appeal is extraordinary for a number of reasons.
One of these reasons is that it involves an appellant who at 71, through circumstances largely beyond her control, finds herself unable to continue working in the job to which she clearly wishes to return. We share the sympathy for the appellant expressed by the Commissioner at [32] of the Decision.
Another reason is the sheer volume of material presented to the Commissioner in the proceedings below. At [13] of the Decision the Commissioner described that material as follows: "The applicant relied upon two witness statements from herself and two witness statements from Mr Blunt. These witness statements were contained in four folders of documents which were tendered into evidence by the applicant and separately marked as exhibits. These folders contained 1,452 pages of documents which included a 32 page written submission and an eight page written submission in reply. In addition, the applicant tendered as an exhibit a further ten folders containing 4,342 pages of documents. The applicant also provided the Commission with a folder entitled "Legislation and Authorities" containing a further 376 pages of documents. The applicant's final written submissions and submissions in reply occupied three folders and totalled 555 pages. In addition, the applicant tendered into evidence a 37 page document which took issue with the respondent's evidence relating to the previous proceedings between the parties."
On the appeal, the appellant's "Appeal Submission" and "Appeal Reply Submission" extend over 62 pages. They raise 13 "matters" which are essentially the primary grounds on which the appeal is brought, which are in turn broken down into 31 alleged errors in the Decision and 89 "questions raised by the appeal".
The appellant is represented by Mr Blunt, who is not a lawyer. This has obviously not prevented the appellant being able to marshal an enormous amount of material covering a period of more than a decade. At the same time, the material presented to the Commissioner suggests a lack of awareness of the questions that the Commissioner had to decide for the purposes of Ch 2 Pt 6 of the Industrial Relations Act. Alternatively, there has been an inability or unwillingness by the appellant to frame her case before the Commissioner so as to be directed to those questions.
The same might be said for the proceedings before the Full Bench.
There is some force to the submissions made on behalf of the respondent that the appellant is seeking a "royal commission" type of enquiry into her employment with the respondent since 2008. That was not the task that was required of the Commissioner and is not that of the Full Bench.
The proceedings before the Commissioner involved the exercise of his jurisdiction under Ch 2 Pt 6 of the Industrial Relations Act. At [31] of the Decision he described the task before him, succinctly but correctly, as follows: "The task before this Commission in these proceedings is to examine the events which led up to the medical retirement of the applicant on 29 March 2017 and to determine whether or not the termination of the applicant's employment by way of medical retirement was harsh, unreasonable or unjust."
On an appeal the Full Bench must determine whether the Commissioner committed an appellable error in the Decision in the sense described in the authorities referred to above. For present purposes the question is whether the matters raised by the appeal are of such importance that, in the public interest, leave to appeal should be granted.
Not all of the facts collated, or all of the submissions derived from those facts, are relevant to the matters to be determined by the Commission. We do not propose to analyse each fact and allegation or to address every submission. To do so would be to write a book and, in any event, would not be an effective way to deal with the appeal. We will address only those matters necessary to deal with the question as to whether the appellant ought be granted leave to appeal.
This approach is not only appropriate in the context of the modern practice of civil litigation; it is consistent with the Commission's obligation to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings, as set out in s 56 of the Civil Procedure Act 2005 (NSW).
That said, the Full Bench has considered and taken into account all of the material before us, and in particular the submissions that have been made by both parties. Simply because we do not expressly deal with a particular fact, allegation or submission in this judgment should not be taken as suggesting that it has been ignored or overlooked. Rather, it should be taken that we have not considered those matters as having a level of significance to require particular discussion.

Factual background

The matters alleged on appeal relate to events since 2008. The history between the parties is convoluted and complicated. We have had the benefit of detailed chronologies from both parties. We set out below only that history which is necessary to frame, or provide context for, the matters arising on appeal.
The appellant is 71 years of age, having been born on 8 January 1947.
On 30 January 1989 the appellant commenced permanent employment with the respondent as an English as a Second Language ("ESL") teacher. (We understand that the nomenclature has since changed, such that the descriptor is now "English as an Additional Language or Dialect" or "EAL/D". For present purposes, nothing turns on the distinction. As "ESL" is used more prevalently in the evidence and submissions we will use the same term.)
In August 2008 the appellant sustained a work-related psychological injury.
In October or November 2009 the appellant was diagnosed as suffering from, or having suffered from, transverse myelitis. This left her with incomplete paraplegia.
As a consequence of these conditions, and other injuries which were the subject of four subsequent workers compensation claims, the appellant had not returned to her substantive position as a permanent ESL teacher after August 2008. Her last day of teaching for the respondent, after unsuccessful attempts at a graduated return to work, was in October 2011.
From 2008 a large number of medical reports and certificates were obtained in connection with the appellant's medical condition. At [16] of the Decision the Commissioner summarised the medical evidence before him as follows: "The applicant tendered into evidence a large numbers [sic] of medical certificates and reports, some of which are referred to below: (1) A report from Professor J D G Watson dated 27 January 2010 in which the professor stated that it was time for the applicant to consider going back to work. (2) A Workplace Assessment Report dated 23 September 2010 by Hilda Makhoul, Rehabilitation Consultant with Rehabilitation Injury Management ("RIM"). Ms Makhoul assessed the applicant as being capable from a psychological point of view for full time pre-injury ESL teaching duties at an alternative school to John Purchase Public School. (3) Multiple reports from Dr Tien Phan covering the period 5 October 2010 through to 2 August 2012 which stated, inter alia, that the applicant should not drive more than 30 minutes each way (to and from work) and that she should avoid stressful/confrontation situations. (4) A further report from Professor Watson dated 21 December 2010 stating that the applicant should be looking for work on a time rather than distance based radius from home, of 25 to 30 minutes' drive on an average occasion. (5) A report from Dr Alan Lam dated 20 January 2011 in which Dr Lam stated that he supported the applicant to seek paid employment which did not require her to travel more than 30 minutes at a time by car. He did not believe that the applicant's residual disability would stop her being employed as a teacher within the education system. (6) Medical certificates from Dr Phan for the period from 24 January 2011 through to 3 July 2017, the majority of which stated, inter alia, that the applicant should be provided with work within 30 minutes' travel time from her home. (7) Further reports from Professor Watson dated 18 April and 13 July 2011. (8) A Workplace Assessment Report of Anita Collins, Consultant Occupational Therapist with RIM, dated 28 April 2011 in which Ms Collins made certain conclusions and recommendations in relation to the manner in which the applicant performed her teaching duties. (9) From 2 May 2011 there were a series of Return to Work Plans put in place with the overall goal of returning the applicant to her substantive position at Willoughby Public School. (10) Responses from Professor Watson dated 12 May 2011 to a number of questions asked by Ms Makhoul about the applicant's inability to drive for longer than 30 minutes. (11) A series of reports from Dr Grace Leong spanning 11 August 2011 through to 29 May 2015 concerning the pain being experienced by the applicant. (12) A further report from Dr Leong dated 9 September 2011 in which the doctor recommended that the applicant limit her driving to 30 minutes. (13) A report from, Joanne Taylor, Psychologist, dated 19 September 2011, together with two other undated reports from Ms Taylor, which stated that the applicant's levels of depression and anxiety have been exacerbated by the failure of the respondent to appoint her to a position within 30 minutes' drive from home. (14) From 23 September 2011onwards there were multiple Progress Reports by RIM where the objective was stated to return the applicant to pre-injury ESL teaching duties on her normal hours and days, (15) A report from Dr Ross Mellick, dated 28 September 2011, where Dr Mellick stated that he would regard the applicant to be currently fit to undertake full duties as a teacher. In a further report dated 8 March 2012, Dr Mellick clarified that his earlier opinion as to the applicant's fitness for work did not reverse or negate his previous comment to the effect that the applicant was not absolutely confident that cramps may not occur when she drives for intervals longer than 20 minutes. (16) A report from Caroline Brown, Rehabilitation Consultant with Advanced Personnel Management, dated 10 April 2012 which noted that, psychologically in relation to her workers compensation claim for anxiety and depression, the applicant would be able to perform the pre-injury duties of an ESL teacher at Willoughby Public School. (17) A report of Dr Adam Martin dated 19 September 2013 wherein Dr Martin expressed the opinion that the applicant, in terms of the alleged psychological injury alone, was not incapacitated for work as a part time ESL teacher. (18) A report of Dr Phillip Brown dated 2 December 2013 in which the doctor stated that, in his opinion, the applicant was psychologically fit for full time employment at a school with supportive local management within thirty minutes' drive, other than John Purchase Public School. (19) A report from Jan Smead, Occupational Therapist, Mt Wilga Private Hospital, to Dr Leong dated 28 January 2014 concerning the applicant's ability to drive a car safely. (20) A Day Program Rehabilitation Team Discharge Report dated 7 May 2014 from Mt Wilga Private Hospital reporting on the applicant's progress during physiotherapy sessions. (21) A report from Dr Grant Walker dated 23 March 2015 in which the doctor expressed the opinion that the symptoms described by the applicant (whatever their aetiology) in relationship to the duties of an ESL teacher, he could not believe that the applicant would fulfil the requirements. Dr Walker stated that the duties could be a danger to herself, her colleagues and the children under her care. He suspected that "reasonable adjustments" could not have been made in the workplace to allow the applicant to carry out her role. (22) A report of Dr Alan Home dated 11 May 2015 in which Dr Home expressed his opinion that the applicant could safely perform the inherent requirements of her job as an ESL primary school teacher, notwithstanding her physical medical condition. In a follow-up report dated 2 June 2015, Dr Home agreed that it was feasible for the applicant to break up her driving journey to drive 20 minutes, undertake some stretching exercises and then complete the journey. (23) A Report of Dr Doron Samuell dated 21 May 2015 in which the doctor expressed the opinion that the applicant did not, at that time, suffer from any psychiatric condition. Her mental state findings were completely normal. She was not taking any psychiatric or psychotropic medications. There were no significant symptoms at that time."
The relationship between the parties from 2008 was one of intractable conflict over whether the appellant could be returned to the workforce and, if so, in which position and on what terms. This resulted in litigation in various forms. At [7] of the Decision the Commissioner identified 16 separate proceedings between the parties, all bar one (an appeal by the respondent) having been commenced by the appellant.
One of the issues which arose between the parties was the ability of the appellant to travel to work. Her condition made it difficult for her to drive for more than 30 minutes without the onset of pain and other symptoms.
On 7 December 2010 the appellant provided the respondent with a list identifying 34 "appropriate schools", being those at which the appellant was prepared to teach.
On 9 August 2012, in connection with proceedings before the Workers Compensation Commission, Senior Arbitrator Snell made a determination ("WCC Determination") in these terms: "The respondent is to provide suitable duties to the applicant, pursuant to Chapter 3 of the Workplace Injury Management and Workers Compensation Act 1998, at a school not more than 30 minutes drive to and from the applicant's residence at Normanhurst. The suitable duties should be consistent with the certificates from time to time of the applicant's nominated treating doctor, and should take account of the condition of transverse myelitis from which the applicant suffers."
The respondent claimed that it could not identify any positions that could be made available to the appellant within the terms of the WCC Determination. The appellant remained off work.
On 12 March 2015, in proceedings before the Federal Circuit Court of Australia, the appellant swore an affidavit which included a detailed description of the physical and psychological conditions and disabilities from which she was then suffering, as follows: "34. As a consequence of the Condition, I have suffered and continue to suffer from: (a) Constant and extreme pain from the waist down (b) Constant spasticity from the waist down; (c) Lack of normal feeling from the waist down; (d) Balance, proprioception and sensory issues from the waist down; (e) Weakness in the pelvis and legs; (f) Increasing spasticity, pain and lack of function brought on by over exertion, undue anxiety and fatigue. 35. I provide an example and set out some of my experiences with respect to each category below: (a) Constant and extreme pain from the waist down. This is characterised by a complex layering of sensations of immense pressure, twisting, stabbing, grinding, cutting, tingling, heaviness and freezing - most affected is the pelvic area, my lower legs, ankles and feet. My pain is increased by moving, fatigue and stress and can be overwhelming and exhausting. To help manage this, I utilize various pain management strategies including pain management programs, physiotherapy, exercise, hydrotherapy, electrical stimulation, massage, heat packs, and heated devices including heated car seat, meditation, medication and distraction. The distraction provided by meaningful work is in my experience a potent pain control mechanism, as I have found when teaching at Epping West Public School, Asquith Public School, tutoring, participating in ongoing learning and voluntary work at St Lucy's school. (b) Spasticity My spasticity manifests as a constant, 24/7, increase in muscle tone, extreme tightness, stiffness and restrictive, resistant rigidity in the pelvic area, legs and feet. After sitting without moving for 30 minutes or more my spasticity is particularly severe, with cramping (particularly in my left leg and foot), a feeling of extreme resistance to movement and intense pain being the norm. Unless I take measures to inhibit cramping, its impact makes standing up and walking afterwards require increased effort, much more painful, awkward, and jerky. Such measures include constantly moving, stretching, pushing my feet up and down, lying back, applying heat, swinging my pelvis from side to side, transferring weight from one foot to the other, and getting up and walking. Apart from the increased pain and effort required, I am also often aware of a decrease in the ability to control my movement, such as the involuntary straightening of my knees and pointing of the toes when I try to walk after an extended time sitting still. I continue to use exercise, physiotherapy, meditation and medication to assist in managing my spasticity. I also keep myself up to date with current thinking and research so I am informed and can actively be involved in helping myself. (c) The lack of normal feeling from the waist down This impacts on my balance and mobility and manifests in proprioceptive and sensory difficulties. (d) Balance Early in my rehabilitation, and now, if I am tired, I feel as if I am going to "fall off my feet" while walking, for me, is like negotiating a razor sharp tight rope, with tennis balls glued under the arches of my feet. I have constant numbness, weakness in my hips and feel weird sensations in my pelvic area, legs and feet. This makes standing, balancing and walking difficult and requires immense effort and vigilance at all times, especially when having to negotiate moving objects (such as an escalator) or unfamiliar or crowded places. My use of various therapies, exercise and mechanical aids such as a cane, have continued to assist me in managing this disability ensuring that I can move around safely, but it continues to be difficult. (e) Proprioception issues My proprioceptive impairment, which is worsened by fatigue and stress, affects my ability to sense the position, location, orientation and movement of my body from the waist down. It produces sensations that require constant and demanding vigilance. Strategies such as feeling the seat I am sitting on with my hands, help to inhibit the nauseating, vertigo like illusion that I'm not actually sitting on the seat and am about to fall, or looking at my legs or feet, help to reassure me of their actual condition and location. I utilise and continue to seek out various strategies and physiotherapy, to assist me in managing this disability, so as to ensure I pose no risk to myself or others. (f) Sensory issues Altered sensory function from the waist down, such as an extreme sensitivity to different materials, surfaces and temperatures is fatiguing, impacts on my mobility and makes walking a struggle. It can feel like walking through concrete. I have an impaired ability to feel pain, hot and cold sensation and touch in varying degrees in my buttocks, legs, ankles and feet. I often experience a discomforting nausea like sensation when I walk across new and unfamiliar surfaces, which makes me feel that I will fall. I have learned and continue to learn strategies that assist me and refine my ability to help evaluate and manage my surroundings, so I can deal with these difficulties, but they are all ongoing. Weakness in the pelvis and legs Continuing physiotherapy and exercise, along with alternative ways of doing things, such as carrying a heavy load in a bag on wheels, using a cane and a handrail, assist me with this weakness. Increasing spasticity, pain and lack of function bought on by over exertion, undue anxiety and fatigue As described above, physical and psychological stressors increase symptoms such as my spasticity, my pain and my ability to move. 36. These symptoms, my Disability, mean that it is extremely difficult for me to travel for periods greater than 20 - 30 minutes. 37. Sitting for longer periods than this can cause me to go into a slow spasm, which causes severe pain and lower limb dysfunction. The amount of time the pain takes to settle back to its normal state is unpredictable and ranges from one to several hours, depending on the type of sitting it is. For example, sitting at a desk is less impactful than sitting in a car because I can swing my legs and pelvis around whilst sitting at a desk. This impacts adversely on both the management of my Disability generally, and but in particular on my capacity to safety drive a motor vehicle for anything more than 20-30 minutes. 38. I have great difficulty in taking public transport. It is very difficult for me to negotiate stairs, escalators, crowds and people who jostle or bump into me. I am often knocked off balance by these things and feel like I will fall. I have fallen twice in public. I get nauseous from negotiating the different surfaces, slopes and gradients involved and have to work very hard to balance and stay upright. Carrying things or wheeling a bag is also very difficult. I need access to handrails on stairs and this is not always possible. If it is raining all these issues are made even worse. All of these factors are exhausting and cause me a lot of pain."
This evidence caused Jane Simmons, then the Regional Director, Northern Sydney of the Department of Education, to form the view that on the appellant's description of her condition and disabilities, the appellant would be unable to perform the inherent requirements of her role as an ESL teacher with the respondent. This view was expressed in an affidavit sworn by Ms Simmons in the Federal Circuit Court proceedings on 10 June 2015.
Having been alerted to the details of the appellant's condition, and arising from Ms Simmons' concerns, the respondent engaged Lucinda Smith of Prudence Consulting Pty Limited to undertake a "fitness for work assessment" of the appellant. The respondent's letter to Ms Smith instructing her to undertake the assessment was dated 13 May 2016. It contains the following entries: "REASON FOR REFERRAL The Department of Education has determined to have Ms. Colefax assessed for fitness for work in order to determine whether she can perform the inherent requirements of her substantive position as a primary school teacher safely and in the context of the Department's statutory obligations under the Work Health and Safety Act, 2011 (NSW) and its common law duty of care obligations to students and staff. … 3. YOUR ASSESSMENT 3.1 You are engaged to conduct an assessment of Ms Colefax's physical and psychological condition and her ability to safely perform the inherent requirements of an ESL primary school teacher. 3.2 In giving this opinion, I ask you to assume that an ability to perform her role as a primary school teacher inherently contains the requirement that Ms Colefax is able to carry out the relevant job duties not only competently but also safely. That requirement for safety includes meeting the Department's statutory obligations under the Work Health and Safety Act 2011 (NSW) to ensure, as far as practicable, the avoidance of any risk to health and safety (or exacerbation of injury) to oneself, one's work colleagues and most importantly in this case, without any risk to the safety and welfare of the children. The inherent requirements of the role of a teacher also incorporates [sic] the common law duty to ensure the safety of the children in the care of the Department." (Emphasis added)
On 16 May 2016 Ms Simmons wrote to the appellant to inform her that Ms Smith would be undertaking a workplace assessment. The letter stated in part: "The Department of Education has concerns as to your capacity to perform the inherent requirements of your job as a primary school teacher. In particular, the Department of Education holds concerns as to the risk you may present to yourself, your fellow teachers and, most particularly, the students arising out of the Department's work health and safety obligations in the context of your physical and psychological disabilities, as set out in information provided by you to the Department in recent times. For these reasons, the Department has determined that a workplace assessment should be undertaken. This will be done by an occupational therapist, Ms Lucinda Smith, in a primary school setting, namely Turramurra Public School. … The outcome of the assessment may form part of the Department's consideration as to whether a determination should be made pursuant to s.76 of the Teaching Service Act 1980."
On 31 May 2016, in response to concerns having been raised by the appellant regarding the instructions given to Ms Smith, Ms Simmons wrote to Ms Smith. Her letter included the following paragraphs: "However, in order to assuage certain doubts that Ms Colefax has expressed about the nature of the assessment, I write to confirm that you are instructed to conduct your assessment on the basis that you have been asked to accept the existence of the psychological, psychiatric and medical conditions with which Ms Colefax has been diagnosed and also the associated symptomatology (including fatigue). In addition, I confirm that you have been asked to assume as accurate the manner in which stressful situations exacerbate Ms Colefax's physical and psychological symptoms, as set out in her sworn affidavit dated 15 March 2015. I confirm that it is outside the scope of your assessment to make any psychiatric, psychological or medical diagnoses."
Ms Smith conducted her assessment of Ms Colefax on 1 June 2016.
On 3 August 2016 Ms Smith provided to the Department of Education a report titled "Occupational Therapy Report - Employee Fitness for Duty & Return to Work Risk Assessment" ("Smith Report"). In that report, which is 51 pages in length, Ms Smith offers the following opinions: "Considering all of the above, it is my opinion that Ms Colefax's employer would have great difficulty in satisfying their WHS obligations if she returned to work, because of her physical and psychological injuries, both individually and in combination with each other. Information gathered in this assessment along with provided reports suggests that the prognosis for a successful return to work is poor and as such, the risks of attempting a return to work outweigh the rewards. Ms Colefax has been assessed as having a permanent impairment for her psychological injury and her physical condition (Transverse Myelitis), along with continual functional limitations, this situation is likely to be ongoing and unlikely to change in the future. … For the reasons outlined in this report it is my opinion that Ms Colefax is unable to meet the inherent requirements of her position. The Department would be unable to satisfy its obligations under the WHS Act 2011 (NSW) and under common law by returning Ms Colefax to work within the Department."
On 11 August 2016 Ms Simmons, by then the Executive Director, Public Schools NSW for the Department of Education, wrote to the appellant. The letter enclosed a copy of the Smith Report and, inter alia, informed the appellant that Ms Simmons had formed the opinion that the appellant was unable to carry out the inherent requirements of her position, that the appellant's condition was likely to be permanent and that consideration was being given to making a determination under s 76 of the Teaching Service Act. The appellant was invited to provide further submissions or information for Ms Simmons to consider, before Ms Simmons proceeded to a final decision as to whether medical retirement should be determined.
The appellant challenged the process that had been adopted by the respondent, including the commissioning of the Smith Report. On 29 August 2016 the appellant made a formal complaint to the Secretary of the Department of Education. The grounds of complaint included that the respondent had not complied with its own policies and procedures.
In September 2016 the respondent engaged Thomson Geer Solicitors to undertake an independent review of the appellant's complaint. Its investigation took place between September 2016 and March 2017.
On 3 March 2017 Thomson Geer provided its report to the respondent ("Thomson Geer Report"). The Thomson Geer Report contained the following passages: "1.1 In a letter to the Secretary of the NSW Department of Education (Department) dated 29 August 2016 (Complaint Letter), Margaritte Colefax made eight separate complaints about the actions of Jane Simmons in her capacity as Executive Director, Public Schools NSW of the Department (Complaint). The essence of the Complaint is that the Department has not acted in accordance with proper process in making administrative decisions relating to Ms Colefax's employment. 1.2 In summary, in this report (Report) about our investigation of the Complaint (Investigation), we have made no adverse findings about the decisions or actions of the Department which are the subject of the Complaint. … 1.5 In light of the broader legislative context, we consider that the Department had a valid reason for not following the processes identified by Ms Colefax in the Complaint, because: (a) there is significant medical evidence about Ms Colefax's health (including evidence on which Ms Colefax relies); (b) the Department is required to take steps to comply with its obligations under work health and safety law to ensure that Ms Colefax can safely perform her role (and these obligations override any Departmental policy or guideline); and (c) it is open to the Secretary (or the Secretary's delegate) to make a decision not to follow the Department's processes, where it is more efficient, effective and economical in the circumstances to take another action. … 5.14 Broadly, parts of the Complaint are concerned with the Department's alleged failure to comply with its own processes, including its: (a) Independent Medical Assessment Guidelines; (b) Medical Retirement Guidelines; and (c) Return to Work Program, (Guidelines). 5.15 Because of this, a material issue in the Investigation was the status of and requirements created by these Guidelines; in particular, whether the Department is required to comply with the Guidelines, and specifically whether it must do so before making a determination under Section 76 [of the Teaching Service Act]. We were unable to find any relevant authority that considered this issue. Because of this, to determine this issue, we have considered the broader legislative context under which the Guidelines operate. 5.16 Whilst we consider that this issue is ambiguous, we have concluded that the better view is that it is not mandatory for the Department to follow the Guidelines in every respect or in all circumstances. The basis for this view is set out below. … 6.26 The language used in all these documents [the Guidelines] is suggestive and permissive - the relevant actors 'may' take certain actions. The language is not in the imperative - it does not use terms like 'must' or 'only'. 6.27 Based on the language and structure of the TS Act and the Guidelines, there is nothing to suggest that it is mandatory for the Department to comply with or follow the Guidelines. Rather, the Guidelines create suggestions and possibilities for action. 6.28 The Guidelines are inferior in status to legislation, including but not limited to the law discussed in paragraph 6.3. This position is reflected in the P&C Procedures which states that they should be read in conjunction with the relevant legislation and, in the event of an inconsistency, the condition outlined in the relevant legislation will prevail. This means that the Department must comply with legislative obligations, such as WHS Obligations, even when that may involve taking actions that are inconsistent with the Guidelines. … 6.31 Section 6 of the [Teaching Service Act] makes it clear that the Secretary may take any action he considers appropriate for the purposes of exercising his responsibility for the general conduct and the efficient, effective and economical management of the functions and activities of the Teaching Service….Based on this, we consider that the Secretary can take any action, even if it is contrary to the Guidelines, where the action is: (a) taken for the purpose of exercising the Secretary's responsibilities under the [Teaching Service Act]; and (b) consistent with other obligations under law… … 10.23 As discussed in section 5, the Medical Assessment Procedure can be utilised by the Department to obtain an independent medical capacity assessment. However, we do not consider that there is a requirement for this process to be adopted before a determination can be made under Section 76. We consider that it was open to the Department not to follow the Medical Assessment Procedure and to obtain a workplace assessment because: (a) the Department decided that it had sufficient medical evidence about Ms Colefax (including a report from Dr Mellick previously obtained under the Medical Assessment Procedure) and that a further medical assessment would not assist; (b) the WHS Obligations involve ensuring that Ms Colefax can safely perform the duties of her role. The Department is obliged to take actions to comply with its WHS Obligations, even where these are inconsistent with Departmental Guidelines (see paragraph 6.28); (c) as noted in section 6 of this report, the Secretary has power under section 6 of the [Teaching Service Act] to take any action he considers appropriate in the circumstances to exercise his responsibility for the general conduct and the efficient, effective and economical management of the functions and activities of the Teaching Service. Noting that Ms Simmons was acting with delegated authority under section 8 of the [Teaching Service Act], it was open to Ms Simmons to make a decision not to follow the Medical Assessment Procedure where: (i) there was an abundance of medical evidence on which Ms Colefax herself was relying; and (ii) it was more efficient, effective and economical in the circumstances to obtain a workplace assessment. … 10.30 Given the findings in the Occupational Therapy Report, we consider that the Department is justified in having serious concerns about Ms Colefax's ability to perform the requirements of her role safely. Where the Department has this evidence, in order to comply with the WHS Obligations, it would be open to the Department not to follow the Medical Retirement Guidelines (by say obtaining an independent medical assessment), and instead to make a determination under Section 76 based on the information before it."
A copy of the Thomson Geer Report was sent to the appellant on 3 March 2017.
On 29 March 2017 Ms Simmons wrote to the appellant informing her that the respondent had determined to medically retire her pursuant to s 76 of the Teaching Service Act and setting out the reasons for that decision ("Determination"). The appellant's employment with the respondent came to an end that day.

Submissions on leave to appeal

The appellant's submissions on leave to appeal include the following contentions: "1. This Appeal raises compelling matters with wide ramifications for injured workers who have recognised disabilities. These matters are also important for employers. 2. This Appeal seeks clarification of employee's rights- in particular the rights and entitlements of injured employees with disabilities, before their employment is terminated. This is of particular importance where there are alleged safety concerns. … 6. When dealing with a person's employment, especially when they have been injured at work, have a disability, and are to receive the benefits and rights flowing from; a final and binding Determination from the Workers Compensation Commission (WCC) requiring the provision of "suitable duties", the workers compensation legislation, protections flowing from the disability discrimination legislation, and the employer's policies and procedures, the public has a right to be confident that everything was done, before that person's employment was terminated. 7. The Full Bench of this Commission in Bindaree Beef on Appeal, said with regard to alleged safety risks, "there is an obligation on the employer to first examine all of the alternatives including rehabilitation, alternative work and adapting the workplace to the employee's needs. Termination of employment should be the last resort." 8. This Commission must serve the public in general, as well as, employers of people with workplace injuries and disabilities, and the employees who have suffered workplace injuries and have disabilities. 9. The Commission must provide assurance, that in this matter (and for similar future matters), the Respondent and in particular the decision maker, exhausted all possibilities including the discharge of their obligations arising from; the Determination of the WCC, legislation and codes of practice, policies and procedures, and properly and conscientiously fulfilled their obligations for rehabilitation, redeployment and provision of adjustments before terminating the employment of the Applicant. … 13. All NSW Public Sector employees with a disability, and all others who have suffered workplace injuries, are entitled to be confident that protections available to them, from judgements of courts and commissions, the legislative schemes put in place by the legislature, policies, procedures, codes of practice, and other documents that govern the employment of all NSW Public Sector employees, are implemented. 14. It is in the Public Interest for this Commission to clearly articulate by judgement on the submissions raised by the Applicant, if employees who have been injured and have disabilities are to be afforded the protections arising from those matters set out above. 15. In addition, the Respondent says their policies and procedures and codes of practice are just "guidelines", and can therefore be ignored and set aside or varied. Employees however, rely on these to protect their health, safety, wellbeing, recovery, rehabilitation, and return from injuries, illnesses and disabilities. It is in the public interest for this Commission to examine these documents and determine if they are required to be complied with for the benefit of employees. 16. It is also in the public interest to confirm, if an employee returning from a work related injury, should have their capacity assessed against a former position or the return to work position imposed on the employee and employer by a final and binding judgement, legislation, or the employers own policies or procedures. The Applicant's submissions in this regard were not dealt with by the Commissioner, and this issue has not been dealt with in other cases, yet the matter is of significant importance to the Applicant and other injured employees. 17. Without a consistent, accountable, and transparent approach, which deals with the above matters and judgements from other jurisdictions (eg. the "decision" of the WCC), the application of legislation, codes of practice, policies, procedures, and the exhaustion of possibilities for rehabilitation, alternative work and adapting the workplace, workers with injuries and disabilities will have little or no confidence they will be treated fairly. 18. The assurance, that employees cannot be dismissed without proper and fair consideration is vital to sustaining their motivation to seek work and retain work. 19. It is clearly in the public interest, that the issues within this Application proceed to Appeal."
The respondent opposed leave to appeal being granted to the appellant. The respondent's narrative on the question of leave to appeal includes the following submissions: "… 2. There is no appeal as of right and, for the reasons set out below, the Appellant has not discharged the burden of establishing sufficient grounds for leave to appeal to be granted pursuant to s. 188 of the Industrial Relations Act 1996 (NSW) (IR Act). The Appellant has misapprehended the nature of the appeal because, in the main, her proposed appeal is no more than an attempt to re-run the case at first instance, rather than pursue a strict appeal. Further, given the voluminous excess of materials and submissions below, engaging in a full appellate process at the same time as the leave application may not be consistent with the prompt resolution of the matter: ss. 3(g) & 162(2)(a) of the IR Act. 3. The principles in relation to the grant of leave are well settled: Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 at [10] and [11]. From that decision, the following matters are of particular relevance to this application for leave. 4. First, primacy is to be given to the first instance decision and an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. As such, leave is not to be lightly or automatically granted. In this matter, the decision at first instance is sufficient and well-founded. It determined the central issue by finding that there was a proper basis for the medical retirement of the Appellant on 29 March 2017 and there was no unfairness attached to that decision. 5. Second, leave may only be granted if it is of such importance, that it is in the public interest to do so. It must be found that the proposed appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" or raises issues going to the proper administration of justice. That public interest test is not satisfied in this matter for the following reasons. 6. The decision has no widespread application because it is fact-specific to the Appellant… 7. This was not a dismissal at large but rather the exercise of a statutory power to medically retire a teacher pursuant to s. 76 of the TS Act. As such, the proposed appeal does not engage in any complex or substantial issue of legal principle. Rather, the Decision is a straightforward determination as to whether there was any relevant unfairness attached to the exercise of the discretion in s. 76. The appeal has no wider implications for the jurisprudence of the Commission. 8. Third, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the· evidence as was the case in this matter. … 9. Simply because the Appellant disagrees with those factual findings or even if the Full Bench concludes that it may have reached different conclusions, does not establish a sufficient ground for leave to appeal. 10. Fourth, there is no appellable error in relation to any legal finding made by the Commissioner. Most significantly, it is correct in law that the IRC has no jurisdiction to make any finding about the operation of determinations made by the Workers Compensation Commission (WCC) because of s. 105 of the Workplace Injury Management and Workers Compensation Act 1987 (NSW). The Appellant's main argument is that the Respondent remained bound by a WCC Determination dated 9 August 2012 (2012 Determination) to provide suitable duties as at the date of medical retirement (29 March 2017)…. In circumstances where the Commissioner found that there was no evidence that the Appellant had ever taken any steps to enforce or otherwise deal with the 2012 Determination and that finding was not challenged by the Appellant, the foundation of the Appellant's main argument falls away. 11. The Appellant's further contention that the Commissioner erred by failing to find that it was the modified or suitable duties, the subject of 2012 Determination, against which her capacity ought to have been measured is wrong at law. It is well settled that it is the substantive position of the employee that must be considered and not any modified, restricted or alternate duties, when determining an employee's capacity to work. There is no appellable error and since that line of argument underscores nearly all of Appellant's grounds of appeal, it further weighs against the grant of leave. 12. Finally, there was no appellable error in the Commissioner not referring to or making findings on the entirety of the vast array of issues thrown up by the Appellant at first instance, noting that the Appellant filed 555 pages of Final Submissions. It was unnecessary for the Commissioner to refer to each and every piece of evidence and submission, nor was it necessary for him to indicate which were rejected or accepted. … 13. The Commissioner was only required to make determinations on issues relevant to whether there was any unfairness in the exercise of the power under s. 76 of the TS Act in medically retiring the Appellant, and that was done. On that basis, it was open to the Commissioner to find, as he did, that the Appellant had not been unfairly dismissed." (Footnotes omitted)

Grounds of appeal

The appellant seeks to challenge the Decision under 13 broad headings, which are referred to in the Application for Leave to Appeal and Appeal, and in the appellant's submissions, as "Matters". For the sake of consistency in expression, we will adopt the same nomenclature. We will address each Matter in turn.
Before doing so, however, it is necessary to address two contentions that appear repeatedly throughout the appellants submissions.

Failure to consider material and/or provide reasons

The appellant seeks to impugn the Decision on the basis that the Commissioner failed to consider material and/or provide reasons. On at least 16 occasions in her Appeal Submission the appellant refers to the Commissioner having failed to "set out, analyse, consider, weigh up or determine" (or an equivalent phrase) the appellant's evidence and submissions [1] . To a similar effect are the appellant's submissions asserting that the Commissioner "failed" to have regard to or determine a particular issue, and those posing questions as to whether the Commissioner has failed to do something or was required to have regard to or determine a particular thing (inferring that he had not done so) [2] .
The appellant's position in this regard is captured in her Appeal Reply Submission at [93], as follows: "The Applicant submits that it is her s.84 Unfair Dismissal application, for which she has made significant submissions including submissions relating to the application of legislated obligations, and she is entitled to have her submissions, and in particular those relating to the application of the law, set out, considered, weighed up and determined."
At the hearing before the Full Bench Mr Blunt stated as follows (Tcpt, p 3 (13-20)): "Given the applicant's submissions, it was essential for Commissioner Murphy to make it apparent how he reached his determination that the applicant was unable to perform the inherent requirements of her role as an ESL teacher, her employment would be terminated and that the termination was neither harsh nor unreasonable nor unjust. His failures to make it apparent on what evidence and how he made those determinations would lead this Full Bench to conclude that Commissioner Murphy failed to properly exercise the statutory requirements to determine if there was a valid reason for dismissal. Even if it is accepted the applicant could not undertake her role, it is not apparent how Commissioner Murphy reached his finding that the termination was not harsh nor unreasonable. There is nothing to identify his thought process and what matters he considered in making his finding."
We do not agree.
It is well-established that it is "plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected": Basten JA in Container Terminals Australia Pty Limited v Huseyin [2008] NSWCA 320 at [4] citing, inter alia, Mifsud v Campbell (1991) 21 NSWLR 725 at 728 (Samuels JA, Clarke JA and Hope AJA agreeing).
In Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124. At [152] McColl JA stated as follows: "While, as Basten JA explained in Lo v CCSR, '[i]f a decision-maker who gives reasons for a decision makes no reference to a particular matter, it may be inferred that he or she disregarded it, either deliberately or through inadvertence', such an inference should not too readily be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. Indeed, it has been said that '[i]t is a mistake to conclude simply from the fact that a Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped [the Tribunal's] attention.' The Tribunal is not expected to set out every consideration which passes through the decision-maker's mind, although some, and usually the most significant, will be expressly dealt with." (Footnotes omitted)
At [227] Emmett AJA made the following observations: "While a decision-maker such as the Commissioner is required to state reasons for the decision being made, such a decision-maker is not required to mention every fact or argument relied on by a losing party. It is also not necessary for a decision-maker to expose every step in the chain of reasoning that leads to the conclusion. The only question is whether the Commissioner entirely overlooked a mandatory consideration."
The Commissioner was required to determine the question as to whether the appellant's medical retirement under s 76 of the Teaching Service Act was harsh, unreasonable or unjust within the meaning of Ch 2 Pt 6 of the Industrial Relations Act. In the face of an enormous amount of material he reduced the case before him to its essence and made the findings necessary to decide the matter.
For reasons which will become clear, we do not accept the appellant's submissions that the Decision can properly be impugned on the basis alleged.
To the extent that we must traverse the Matters in considering the appellant's application for leave to appeal, we do not propose to address each instance where it is alleged that the Commissioner erred by failing to consider material or by failing to give reasons. We do not accept that the appellant's submissions in this regard provide a proper basis for appeal.

Appellable error v disagreement with Commissioner's findings

Consistent with the authorities referred to above, this appeal does not involve the Full Bench simply substituting its view for that of the Commissioner, if the conclusions he reached were reasonably open to him on the evidence. Even if the Full Bench disagrees with the Decision (and we are not suggesting we do), this does not of itself mean that the Commissioner has committed an appellable error.
It follows that this appeal does not involve a re-hearing of the appellant's unfair dismissal claim. However, in a great many respects that is precisely what the appellant seeks. This is reflected at [6] of the appellant's Appeal Reply Submission, where she states: "A decision in favour of the Applicant in any one of Matters 1 to 13, would, in the Applicant's view, render the termination of the Applicant's employment, harsh and/or unreasonable and/or unjust."
The question for the Full Bench is not whether the appellant's dismissal was harsh, unreasonable or unjust, but whether the Commissioner made an appellable error in finding that it was not.
Submissions which do no more than express disagreement with the Commissioner's conclusions, in the absence of appellable error, do not provide a proper basis for appeal. An error does not arise simply on the basis that the appellant believes the Commissioner should have decided a point differently.
This is an issue which impacts on a number of the Matters. We will highlight where this is the case as we deal with the Matters in turn.
As a further consideration, which encompasses both of the contentions discussed at [54] - [68] above, we observe that House v The King (1936) 55 CLR 499; [1936] HCA 40 contemplates a situation where appellable error can be inferred, even if no error is apparent on the face of a judgment, where the decision is manifestly wrong. That is, if the outcome is manifestly incorrect there must be an error in the reasoning. For the reasons which follow, far from regarding the Decision as wrong, we consider that it was undoubtedly correct. Therefore, no error can be found on that basis.
It follows that unless a specific appellable error can be identified the appeal must fail.

Matter 1 - WCC Determination

The WCC Determination features heavily in several of the Matters. Distilled to their essence, the appellant's submissions broadly in connection with the WCC Determination come down to these propositions: 1. the WCC Determination was and remains declaratory of facts, and of legal rights for the appellant and legal obligations for the respondent; 2. the WCC Determination created for the appellant a (new) "position of suitable duties" (being one at a school not more than 30 minutes' drive to and from the appellant's residence, the duties of which were consistent with the certificates issued from time to time by the appellant's nominated treating doctor and which took into account the condition of transverse myelitis from which the appellant suffers); 3. the "position of suitable duties" became the benchmark thereafter for assessing the appellant's fitness for work; 4. the WCC Determination obliged the respondent to place the appellant in a "position of suitable duties", which obligation remained in place as at the date on which she was medically retired; and 5. by failing to place the appellant in a "position of suitable duties" and in terminating the appellant's employment, the respondent breached the WCC Determination.
The appellant contends that the Decision contravenes s 350(2)(b) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("WIM Act"), by allowing the respondent's breaches to subsist. Section 350 of the WIM Act is in these terms: 350 Decisions of Commission (1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review. (2) A decision of or proceeding before the Commission is not: (a) to be vitiated because of any informality or want of form, or (b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court. (3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.
We can only infer from the appellant's submissions that it is contended that by allowing the termination of the appellant's employment to remain, in breach (the appellant says) of the WCC Determination, the Commissioner was effectively "quashing" the WCC Determination. We do not accept this submission. The Decision does not seek to challenge, review, quash or call into question the WCC Determination. The Commissioner expressly acknowledged at [29] of the Decision that this Commission has no jurisdiction to deal with an alleged contravention of, or failure to comply with, such a determination.
This leads to another submission made by the appellant, namely that the Commissioner was incorrect to find (also at [29] of the Decision) that s 105 of the WIM Act made it "impermissible" to "trespass…into the exclusive jurisdiction of the Workers Compensation Commission".
Section 105 of the WIM Act is in these terms: 105 Jurisdiction of Commission and Compensation Court (1) Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act. Note. The Commission does not have jurisdiction to determine any dispute about a work capacity decision of an insurer and is not to make a decision in respect of a dispute before the Commission that is inconsistent with a work capacity decision of an insurer. See section 43 of the 1987 Act. (2) The Commission does not have that jurisdiction in respect of matters arising under Part 5 (Common law remedies) of the 1987 Act except for the purposes of and in connection with the operation of Part 6 of Chapter 7 of this Act. (3) The Commission does not have jurisdiction in respect of matters that the Compensation Court or (after the repeal of the Compensation Court Act 1984) the District Court has jurisdiction to examine, hear and determine. (4) Subject to this Act and the Compensation Court Act 1984, the Compensation Court has exclusive jurisdiction to examine, hear and determine all existing claim matters except matters arising under Part 5 of the 1987 Act. (4A) After the repeal of the Compensation Court Act 1984, the District Court has exclusive jurisdiction to examine, hear and determine all coal miner matters (except matters arising under Part 5 of the 1987 Act). (5) Despite section 17(4) of the Compensation Court Act 1984, the Compensation Court does not have jurisdiction to reconsider a matter, or to rescind, alter or amend any decision previously made or given by the Court in relation to a matter, once the matter has become a new claim matter. (6) For the purposes of giving effect to subsections (4) and (4A), references in this Act to the Commission are to be read as references: (a) to the Compensation Court, to the extent that the reference relates to a matter that the Compensation Court has jurisdiction to examine, hear and determine, or (b) to the District Court, to the extent that the reference relates to a matter that the District Court has jurisdiction to examine, hear and determine.
In making his finding, the Commissioner accepted submissions that had been made by the respondent, which were repeated before the Full Bench, that this Commission has no jurisdiction to make factual or legal findings about an alleged contravention of a determination made by the Workers Compensation Commission.
We have some doubts about the conclusion that the Commission is unable to make relevant factual findings for the purposes of exercising its jurisdiction under the Industrial Relations Act. However, this is not an appropriate case in which that issue ought be tested.
On the evidence it appears that any entitlement that the appellant had to be provided with suitable duties under the WIM Act had lapsed more than four years prior to her medical retirement. The reasons for this were outlined at [136] - [141] in the respondent's final written submissions in the proceedings below. We do not see how the WCC Determination can be construed as providing for benefits and entitlements beyond those contained in the legislation under which it was made.
Even if it were accepted that the respondent had in any way failed to comply with the WCC Determination (and we are not suggesting that was the case), it cannot be said that it was non-compliant at 29 March 2017 when the appellant was medically retired.
It is relevant in this regard that, as the Commissioner found at [30] of the Decision, there is no evidence that the appellant at any time took steps in the appropriate jurisdiction to enforce the WCC Determination or to have contempt proceedings instituted as a result of the alleged failure by the respondent to comply with it.
The appellant further contends that the WCC Determination gives rise to an issue estoppel. That is, that the respondent is estopped from disputing the matters determined by the WCC Determination. Most relevantly, this precludes the respondent forming any views inconsistent with the finding by the Workers Compensation Commission that the appellant was fit to accept a "position of suitable duties".
We do not accept this submission. In the first place, it is premised on the assumption that the WCC Determination subsisted at the time of the appellant's medical retirement. As stated above, that assumption appears to be misplaced.
In the second place, we are not satisfied that an issue estoppel arises in the present case. For an estoppel to apply in the proceedings before the Commission, it is necessary to show that the question that it is being asked to determine is the same as that which was decided by the Workers Compensation Commission. Mr Blunt referred us to Police Association of New South Wales v Commissioner of Police [2010] NSWIRComm 82 in which Staff J at [44] stated as follows: 44 As to issue estoppel, Mr Seck referred to Blair v Curran (1939) 62 CLR 464 at 531 - 532; Kuligowski v Metrobus (2004) 220 CLR 363 at 373 and Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2006] NSWCA 322 at [79], and submitted that these cases were authority that in order to establish issue estoppel, it was necessary to establish: (a) a prior judicial determination on: (i) an issue of fact or law; (ii) disposing a legal controversy between the parties once and for all; (b) a later proceeding involving: (i) precisely the same issues of fact or law as the prior judicial determination; (ii) the same parties (or their privies) as the prior determination.
There is nothing in the judgment to suggest that his Honour disagreed with counsel's submissions. We consider that the passage accurately outlines the principles which apply.
In the present case, the Commission is not being asked to determine "precisely the same issues of fact or law" as decided in the WCC Determination. That is the case for two reasons.
Firstly, the respondent does not contend that the appellant was unable to perform "suitable duties" as referred to in, and subject to the conditions set out in, the WCC Determination. The respondent's position is that no such duties could be found for the appellant.
We digress on this point to note that there is evidence that the respondent did attempt to locate suitable duties for the appellant. We note in particular the email correspondence at Appeal Book Folder K, tab 61 and at Appeal Book Folder L, tab 64.
In the proceedings below, Christopher Miles, the Principal Legal Officer (Employment) of the Department of Education gave evidence as follows (Tcpt, 9 October 2017, p 46 (13-19)): "The department used its absolute best endeavours to try and do what the applicant wanted, and that was to transfer her to a permanent position at a school closer to her home than Willoughby, and to my knowledge, the department used its best endeavours to do that. The Regional Director indicated to the applicant on many occasions that the department was ready, willing and able to do that on the very first vacancy that came up that matched with her, point 6 of the FT status, and at a suitable location."
That evidence was not challenged.
The respondent's decision to medically retire the appellant was based on an assessment of her capacity against her pre-injury role, not a "position of suitable duties". Such an approach was consistent with the principle established in J Boag & Son Brewing Pty Limited v Alan John Button [2010] FWAFB 4022, in which the Full Bench of Fair Work Australia (as it then was) stated as follows (at [22]): "When an employer relies upon an employee's incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered."
The respondent contends, and we accept, that the WCC Determination did not create a new or alternative "position of suitable duties", but required the respondent to make suitable duties available - if such duties could be found within the restrictions referred to in the WCC Determination - as part of returning the appellant to her pre-injury role. The finding by the respondent that the appellant was unable to perform the duties of her pre-injury role within the meaning of s 76 of the Teaching Service Act was not the same as challenging the finding of fitness for suitable duties which underpinned the WCC Determination.
Secondly, the WCC Determination was made pursuant to the WIM Act and in the context of the parties' rights and obligations under that Act. Other legislation, such as the Teaching Service Act and the Work Health and Safety Act 2011 (NSW), operates concurrently with the WIM Act. In addressing its rights and obligations under that other legislation the respondent was turning its mind to a different question to that of fulfilling its workers compensation obligations to the appellant.
Finally in relation to Matter 1, the submissions at [31], [34], [36] and [50] of the appellant's Appeal Submission fall into the category discussed at [64] - [69] above.

Matter 2 - Elimination of Risks

This Matter arises from [32] of the Decision in which the Commissioner stated: "I have a great deal of sympathy for the applicant who has endured significant health problems over the past ten years and who has now lost the career in which she has worked for a considerable part of her life. However, the respondent has a duty under the provisions of the Work Health and Safety Act 2011 to eliminate risks to the health and safety of its employees and the children who attend its schools, so far as is reasonably practicable."
The appellant submits that the Commissioner erred in two respects: 1. by finding that the respondent had an obligation to "ensure" the elimination of risks, which ignored, inter alia, ss 17 and 18 of the Work Health and Safety Act; and 2. by accepting the respondent's submission, in the absence of any evidence, that it had properly taken into account "all the relevant matters" set out in s 18 of the Work Health and Safety Act and the "How to Manage Work Health and Safety Risks" Code of Practice dated December 2011, approved under s 274 of the Work Health and Safety Act and published by WorkCover NSW (now SafeWork NSW) ("Code of Practice").
Sections 17-19 of the Work Health and Safety Act are relevantly in these terms: 17 Management of risks A duty imposed on a person to ensure health and safety requires the person: (a) to eliminate risks to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable. 18 What is "reasonably practicable" in ensuring health and safety In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including: (a) the likelihood of the hazard or the risk concerned occurring, and (b) the degree of harm that might result from the hazard or the risk, and (c) what the person concerned knows, or ought reasonably to know, about: (i) the hazard or the risk, and (ii) ways of eliminating or minimising the risk, and (d) the availability and suitability of ways to eliminate or minimise the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. 19 Primary duty of care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety, and (b) the provision and maintenance of safe plant and structures, and (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances, and (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. …
In light of these provisions, the Commissioner's one sentence summary of their effect is accurate.
In support of her submissions the appellant relies on Transfield Services (Australia) Pty Ltd v Anton Wieland [2014] WASCA 41 and Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42, which, it is submitted, "rejected the standard of 'ensure'". Both of those cases involved common law claims. In Transfield the judge at first instance had equated the common law duty to take or exercise reasonable care as "ensuring" safety, which was held on appeal to be incorrect. In Dederer the High Court was considering the duty of bodies such as the Roads and Traffic Authority to exercise reasonable care. The High Court stated that the duty did not extend to "ensuring" anything. Neither case is relevant in understanding the duty imposed by the Work Health and Safety Act (and in particular s 19), and neither assists the appellant.
This disposes of the ground referred to in [95(1)] above.
In relation to the ground summarised at [95(2)] above, the Commissioner had considered the available medical evidence (at [16] of the Decision). He accepted the findings of the Smith Report (at [35] and [36] of the Decision). It is on this basis that he accepted the submissions of the respondent "concerning the impracticability of putting in place adjustments or control measures to assist the applicant to return to her role" (at [37] of the Decision). These findings were open to him on the evidence, particularly in the absence of evidence having been called by the appellant to rebut the findings in the Smith Report.
Finally in relation to Matter 2, the submissions at [64], [67] and [74] of the appellant's Appeal Submission fall into the category discussed at [64] - [69] above.

Matter 3 - Termination to be last resort for safety

The appellant submits that the Commissioner failed to determine if the "required common sense tests of rehabilitation, alternative work, and adjustment/adaptation of the workplace, had been carried out to ensure the termination for safety reasons was the last resort".
This submission rests on Bindaree Beef Pty Ltd v The Australasian Meat Industry Employees' Union, Newcastle and Northern Branch on behalf of Riley [2012] NSWIRComm 74. This case features heavily in the submissions made by the appellant, so it is worth considering it in some detail.
In Bindaree Beef, Mr Riley was a slicer at an abattoir who, following a work-related injury, was found to have a permanent impairment. He was dismissed as a result of concerns held by his employer, Bindaree Beef, that he might re-injure himself, exposing it to liability under the Occupational Health and Safety Act 2000 (NSW). The union brought proceedings against Bindaree Beef seeking to have Mr Riley reinstated pursuant to s 242 of the Workers Compensation Act 1987 (NSW). At first instance MacDonald C ordered Mr Riley's reinstatement. The appeal by Bindaree Beef came before a Full Bench comprising Boland J President, Haylen J and Tabbaa C.
The appellant cites the Full Bench at [142]-[144] in Bindaree Beef, but it is necessary to look at those passages in a broader context, as follows (at [137] - [145]): "137 It was submitted for the appellant that the Commissioner erred in not correctly interpreting and applying the OHS Act in some 11 respects. These included that the Commissioner did not consider: an employer's obligations pursuant to the Occupational Health & Safety Act 2000 (NSW); the penalties imposed upon an employer for breaching its obligations pursuant to the Occupational Health & Safety Act 2000 (NSW); culminating (sic) in ordering the Appellant to reinstate the Respondent to work that has an identifiable risk to the health, safety and welfare at their place of work; placing an unjust burden on the Appellant by ordering it to reinstate the worker to work that risks his health, safety and welfare and in so doing exposes the Appellant and its managers to breaches of their obligations pursuant to the Occupational Health & Safety Act 2000 (NSW). 138 There is undoubtedly an obligation under the OHS Act on employers to ensure that employees are not exposed to risks to their health and safety (see s 8). A failure to meet this obligation may result in a heavy penalty. It is to be noted that there are defences available to employers if they are charged with a contravention of the OHS Act (see s 28) and, in particular, if it was not reasonably practicable for the person to comply with the relevant provision to which the charge relates. 139 The submissions of the appellant regarding the provisions of the OHS Act seem to amount to the proposition that if an employee is injured at work and there is a risk of re-injury, the only appropriate course is to terminate the employee's employment to avoid liability under the OHS Act. 140 That view does not appear to have been informed by decisions of the Industrial Court in its OHS jurisdiction. There must be countless cases where employees have injured themselves at work and have later suffered an aggravation of the injury or re-injured themselves. We know of no case that has come before the Industrial Court or its predecessors involving the prosecution of an employer on the ground that because the employee had received a work injury and was susceptible to re-injury, the employer had failed to ensure the employee was not exposed to a risk to their health and safety. None were drawn to the attention of the Full Bench. 141 Where the employer has taken all reasonably practicable steps to avoid the risk of re-injury - if the risk is real, it is difficult to conceive of a prosecution being launched in those circumstances, let alone being successful. 142 We do not regard the existence of the OHS Act as providing, of itself, a justification for an employer to remove injured workers from its workforce. 143 The objects of the OHS Act include the following: (a) to secure and promote the health, safety and welfare of people at work, (b) to protect people at a place of work against risks to health or safety arising out of the activities of persons at work, (c) to promote a safe and healthy work environment for people at work that protects them from injury and illness and that is adapted to their physiological and psychological needs, ... (f) to ensure that risks to health and safety at a place of work are identified, assessed and eliminated or controlled. 144 The idea that the only appropriate response to an injured worker at risk of re-injury is to terminate the worker's employment is at odds with these objects. It is distinctly at odds with the object to promote a safe environment at work that protects employees and others from injury and illness and that is adapted to their physiological and psychological needs. We would think it is also at odds with the objectives of the Workplace Injury Management & Workers Compensation Act 1998, which is to be read and construed with the WC Act. In particular, we note the object to promote the return to work of injured workers as soon as possible and to achieve optimum results in terms of a timely, safe and durable return to work following workplace injuries: Speirs v Industrial Relations Commission of New South Wales & Anor [2011] NSWCA 206 at [16]. 145 If there are genuine concerns on the part of an employer and the concerns are soundly based that an employee is at risk of re-injury and may be a risk to the health and safety of other workers, before making a decision to terminate the employee - a step that in very many cases may have drastic consequences for the individual - it is our opinion there is an obligation on the employer to first examine all of the alternatives including rehabilitation, alternative work and adapting the workplace to the employee's needs. Termination of employment should be the last resort." (Bold emphasis added)
The above passages highlight that the Full Bench in Bindaree Beef was considering a submission that the Occupational Health and Safety Act in effect required the dismissal of an employee who was at risk of re-injury. The Full Bench's response to that submission, and its reference to termination being the "last resort", has to be seen in that context.
Specifically in relation to [145] in Bindaree Beef (on which the appellant places particular reliance), the Full Bench does not impose an enforceable obligation on employers to "ensure" that termination is the last resort, as the appellant contends, much less compel the Commission to determine whether or not this has been done. The Full Bench does no more than set out an expectation that an employer will examine alternatives to dismissal as opposed to assuming that dismissal is the first or only option. Such a sentiment is not only consistent with the proceedings before the Full Bench in Bindaree Beef, but also those presently before the Commission.
The history of the matter demonstrates that the respondent did not move quickly to consider dismissal. It became aware of the extent of the appellant's disabilities in March 2015 but did not take action immediately to terminate her employment. Rather, it commissioned the Smith Report. Almost 8 months elapsed between the respondent receiving the Smith Report and the appellant's employment being terminated, during which time there was extensive communication between the parties aimed at resolving concerns raised by the appellant.
While we do not agree with the appellant's construction of Bindaree Beef¸ in light of the history of the matter and our comments at [100] above, it is difficult to see the termination of the appellant's employment as anything other than the respondent's last resort.
Further, there is a degree of disingenuousness in the appellant's submissions in relation to this Matter. The overwhelming impression from the evidence and from the appellant's submissions before us is that the appellant wanted, and would accept nothing other than, complete and literal compliance by the respondent with the WCC Determination.
In the proceedings below, the respondent read a statement by Christopher Miles dated 4 August 2017. At [18] of his statement Mr Miles said as follows: "18. From 2010 to date, the Applicant has indicated that she would only accept an appointment to one of the 34 schools nominated by her."
That evidence was not challenged in the proceedings below.
Even if the respondent could be criticised for failing to adequately explore rehabilitation, alternative work or an adjustment/adaptation of the workplace - and we are not satisfied that it could be - there is nothing to suggest that the appellant would have been similarly willing to do so.

Matter 4 - "Suitable Duties" and Redeployment

This Matter stems from the appellant's contention, summarised at [71(2)] above, that the WCC Determination created for her a (new) "position of suitable duties". In part, the appellant's submissions challenge the respondent's compliance with the WCC Determination by not placing her in such a position. The appellant further submits that the Commissioner erred by giving no consideration to, and making no determination as to, an order for redeployment to a "position of suitable duties" pursuant to s 89(2) of the Industrial Relations Act.
As stated at [90] above, we accept the respondent's submission that the WCC Determination did not create a new or alternative "position of suitable duties", but required the respondent to make suitable duties available - if such duties could be found within the restrictions referred to in the WCC Determination - as part of returning the appellant to her pre-injury role.
To the extent that the appellant seeks through this Commission to enforce the WCC Determination we reiterate that this is impermissible under s 105 of the WIM Act. The appellant's submissions on this point would also fall into the category referred to at [64] - [69] above.
The appellant's submissions in relation to s 89(2) of the Industrial Relations Act are misguided. That section sets out the orders that the Commission can make if it finds that a dismissal was harsh, unreasonable or unjust. Having found that the appellant's dismissal was not harsh, unreasonable or unjust (at [40] of the Decision), there was no need for the Commissioner to consider s 89(2). The Commissioner committed no error in this regard.

Matter 5 - Procedures

The submissions in respect of this Matter come down to two propositions, namely that: 1. in effecting the termination of the appellant's employment the respondent failed to comply with its own policies and procedures; and 2. in failing to take this into account the Commissioner allowed the "significant injustice" of that failure to be ignored (Tcpt, 12 November 2018 p 23 (12-13)).
The appellant's Appeal Submission on this Matter falls almost entirely into the category referred to at [64] - [69] above [3] . Many of the remaining paragraphs fall into the category discussed at [54] - [62] above. That in itself provides a basis on which to dispose of this Matter.
We will, however, address some of the arguments advanced by the appellant.
The appellant's Appeal Submissions identify the following relevant policies, guidelines and procedures ("Procedures"): 1. the Department of Education Work Health and Safety Policy; 2. the Department of Education Return to Work Program (sub-titled "guidelines for the management of work and non-work related injuries, illnesses or health conditions"); 3. Department of Education Medical Retirement Guidelines; 4. Department of Education Independent Medical Capacity Assessment Referral and Implementing Recommendation Guidelines; and 5. NSW Department of Premier and Cabinet Procedures for Managing Non-Work Related Injuries and Health Conditions.
The appellant's submissions rest on the assertion that the Procedures imposed mandatory obligations on the respondent in relation to managing her condition and return to work, and in implementing medical retirement under s 76 of the Teaching Service Act.
At the hearing before the Full Bench there was the following exchange (Tcpt, 12 November 2018, pp 34 (50) - 35 (18)): "SLOAN C: Before you go on, can I just clarify, your submission is that compliance with the procedure is a condition precedent to being able to rely on section 76 at all? So it is not just going to the question of whether the procedure was appropriate, whether there was procedural fairness in the process, but right to the validity of their reliance on section 76 at all, is that your submission? BLUNT: It is an implied term in the applicant's contract of employment because of the expressed term in the Ms Simmons' contract of employment, she would comply with applicable policy. SLOAN C: Whether or not it was a condition of Ms Simmons' employment contract is, I'm not sure, here nor there. My question is more for you to clarify, is it your submission that the failure by the department to comply with the policies and procedures you have referred to, does that failure render them unable now to rely on section 76 of the act, that that [comprises] a condition precedent to being able to utilise section 76? BLUNT: Yes."
At the outset it is worth restating that the question before the Commissioner was whether the termination of the appellant's employment was harsh, unreasonable or unjust. Any deficiencies in the respondent's management of the appellant's medical condition and return to work are not necessarily relevant to that question.
The appellant submits that the Procedures became an implied term of her employment contract with the respondent as a result of a contractual obligation in Ms Simmons' employment contract to act in accordance with "applicable employment policies of the [respondent]" (Tcpt, 12 November 2018, pp 22 (41-44), 32 (24-26) and 35 (7-9)).
We were provided with a copy of the "model contract of employment for Public Service senior executives (other than Secretaries and agency heads)", which is Schedule 1 to the Government Sector Employment Rules 2014 (NSW). It is said to reflect the terms applying to Mr Simmons' employment. Clause 19 of the model contract is in these terms. "Employment policies 19.1 The Senior Executive agrees to act in accordance with any applicable employment policies of the Employer. 19.2 However, those employment policies do not form part of this contract and do not create any express or implied contractual rights or obligations between the Senior Executive and the Employer."
The appellant's submissions do not properly comprehend what is meant by the obligation to act "in accordance with" the relevant policies. This phrase requires the relevant Senior Executive to act in a manner consistent with the policies, or not contrary to them. It does not import an obligation on the part of the Senior Executive to slavishly and literally apply the text of the policies. Understood correctly there is no basis to suggest that there was a failure to comply.
Further, we do not accept that the existence of an obligation in one person's contract to comply with an employment policy necessarily makes that policy an implied term of the contracts of the employees who report to that person. This is particularly the case where the terms of the first person's contract make it clear that the policy is not incorporated into that contract, and does not create any express or implied contractual obligations between that person and the employer.
Whether the Procedures constituted an implied term of, or were to be regarded as having been incorporated into, the appellant's contract of employment would be determined in accordance with the principles enunciated in, for example, Commonwealth Bank of Australia v Barker [2014] HCA 32, 253 CLR 169 and Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC 120, 163 FCR 62. We are not satisfied on the material before us that the Procedures are contractually enforceable by the appellant in the manner in which she contends.
The Thomson Geer Report responded to complaints made by the appellant in relation to the Procedures, with the exception of the Department's Work Health and Safety Policy, to which we return at [132] below. The complaints made by the appellant reflect in large part the submissions made to this Commission. At [47] above we reproduce extracts from the Thomson Geer Report, which include findings that it was not mandatory for the Department of Education to apply the Procedures prior to making a determination under s 76 of the Teaching Service Act.
In the context of the circumstances and history of this case, we take no issue with the findings in the Thomson Geer Report and in particular those at [10.23] of that Report.
We acknowledge that Thomson Geer did not expressly deal with the Work Health and Safety Policy. There is nothing on the face of that document, however, which suggests that it calls for a different approach to that taken in respect to the other Procedures.
We observe that if the Medical Retirement Guidelines were to be applied in the manner contended by the appellant, they would operate to limit the circumstances in which s 76 of the Teaching Service Act could be applied. We do not consider that they, or any of the Procedures, serve to change or limit the way in which s 76 applies. The legislation is the source of the authority to act. The policy and procedure documents are administrative guides to the application of the legislation. In any event, such an intention would need to be clear on the document, rather than being the effect of a particular interpretation of the Medical Retirement Guidelines. No such intention is apparent; indeed, the document makes no reference at all to s 76.
Specifically in relation to the Return to Work Program, Mr Blunt made these submissions (Tcpt, 12 November 2018 p 29 (8-16)): Importantly, over the page at paragraph 433, she says that section 2.4.1 includes the return to work goal hierarchy and says the return to goal must lie with the WorkCover NSW Return to Work Hierarchy. This provides six different options for suitable duties: 1. Same position, same employer; or 2. Similar position, same employer; or 3. Different positions, same employer; or 4. Same position, different employer; or 5. Similar position, different employer; or 6. Different position, different employer. She could have been placed in any one of those six options as part the provision of suitable duties.
In response to this submission we repeat [110] - [113] above.
On these grounds we find there is no basis to the proposition referred to at [118(1)] above.
As to the proposition referred to at [118(2)] above, the issue of the respondent's compliance with the Procedures was dealt with by the Commissioner, albeit in a shorthand manner, at [39] and [40] of the Decision. He noted at [39] the findings in the Thomson Geer Report and immediately went on to say at [40] that "[i]t follows that" the termination of the applicant's employment was not harsh, unreasonable or unjust. The clear inference is that the Commissioner accepted the findings of the Thomson Geer Report.
For the reasons we have stated the Commissioner made no error in doing so.

Matter 6 - Natural Justice

The appellant contends that in the process culminating in the termination of her employment she was denied natural justice in two respects, namely: 1. that Ms Simmons made determinations pursuant to the matters referred to in s 76(1)(a)-(c) of the Teaching Service Act prior to providing the appellant with a copy of the Smith Report, and without giving the appellant the opportunity either to seek an independent review of the Smith Report or to make submissions. This submission is made by reference to the letter from Ms Simmons to the appellant dated 11 August 2016 referred to at [44] above; and 2. that by failing to comply with the NSW Department of Premier and Cabinet Procedures for Managing Non-Work Related Injuries and Health Conditions the respondent denied her the opportunity to refer the Smith Report to an Independent Review Panel in accordance with that document.
The appellant's Appeal Submission on this Matter falls almost entirely into the category referred to at [64] - [69] above. The remaining paragraphs fall into the category discussed at [54] - [62] above. That in itself provides a basis on which to dispose of this Matter.
Further, in the first limb of this Matter, the appellant's submission asks the Commission to consider a particular decision in isolation from the long and complicated history of dealings between the parties. The evidence demonstrates that over a number of years the appellant was afforded multiple opportunities to provide information and to make submissions. The letter of 11 August 2016 itself invited submissions from the appellant. There can be no suggestion that the process, when viewed overall, was characterised by a lack of procedural fairness or natural justice.
Ms Simmons had sufficient information to reach the conclusions she did. Her failure to provide the appellant a further opportunity to make submissions was not a denial of natural justice in the circumstances of this case. Even if it were, it would not of itself have rendered the termination harsh, unreasonable or unjust.
The second limb of this Matter is disposed of as a result of the views we have reached in relation to Matter 5.

Matter 7 - Bias

The appellant alleges that the respondent's decision to medically retire her could be impugned on the basis that an informed observer would have concluded that Ms Simmons might not have brought an impartial and unprejudiced mind to the resolution of the question at hand. The submission has it genesis in the views expressed by Ms Simmons in her affidavit of 10 June 2015 referred to at [38] above.
During the hearing before the Full Bench Mr Blunt confirmed that the appellant's submissions were limited to apprehended bias, and that actual bias was not alleged against Ms Simmons (Tcpt, 12 November 2018 pp 7(42) - 8(1).
At [39] of the Decision the Commissioner stated as follows: "The decision to medically retire the applicant was made by Ms Simmons. I also had the benefit of observing Ms Simmons giving her evidence under cross-examination and agree with the submission put on behalf the respondent that the Commission would accept Ms Simmons' evidence as honest and forthright. I reject entirely the submission put on behalf of the applicant that Ms Simmons' decision-making was affected by apprehended or actual bias. I note that, following a complaint by the applicant, Thompson Geer, solicitors, were engaged by the respondent to investigate complaints by the applicant about the actions of Ms Simmons in her capacity as Executive Director, Public Schools NSW. That investigation concluded that none of those complaints was substantiated."
The appellant contends that the Commissioner fell into error by applying the incorrect test for apprehended bias, namely whether the decision-maker was "honest and forthright".
We do not read paragraph [39] of the Decision as the appellant does. It seems clear to us that the Commissioner made two separate findings: firstly, as a witness, Ms Simmons was honest and forthright; and, secondly, he rejected the submission that Ms Simmons' decision-making was affected by actual or apprehended bias. The appellant incorrectly conflates the two findings.
The Thomson Geer Report addressed the question of bias, albeit not in response to a direct complaint from the appellant. Paragraph [12.2] of the Thomson Geer Report contains a quote from information which the firm had received from the appellant during the course of its investigation. That includes the following statements: "By their actions, Ms Simmons and the Crown Solicitor, who have both had previous dealings with my employment with the department, can not and did not in any reasonable view, have acted independently in engaging, managing and conducting Ms Smith's assessment outside the Procedure. … Just having Ms Simmons and the Crown Solicitor involved, 'up to their eyeballs' as the saying goes, has denied me natural justice."
The Thomson Geer Report goes on to conclude that "it appears that the Department was mindful in all the circumstances to provide Ms Colefax with a fair process" (at [12.8]). The authors expressed the view that "there [was] nothing preventing the Secretary from remitting the substantive matter back to Ms Simmons for determination" (at [1.6]). These passages suggest to us that Thomson Geer had considered the question of Ms Simmons being biased, or the apprehension that she might appear to be biased, and found them without merit.
As stated above, the Commissioner accepted those findings. He committed no error in doing so.
More significantly, the appellant's allegations of apprehended bias in the decision-making process once again fail to grasp the nature of the proceedings before the Commissioner under s 84 of the Industrial Relations Act. The Commissioner reviewed the extensive evidence before him to determine whether the appellant's medical retirement pursuant to s 76 of the Teaching Service Act was harsh, unreasonable or unjust. He found that it was not. Any bias in the decision-making process, whether actual or apprehended, was cured by the proceedings before the Commission.
Otherwise, the matters contended by the appellant in respect of this Matter either fall into the category referred to at [64] - [69] above or into that discussed at [54] - [62] above.

Matter 8 - Work Capacity

At [165] of the appellant's Appeal Submission the appellant contends as follows: "The Commissioner ought to have reasoned and found that the medical certificate from the Nominated Treating Doctor at the time of the termination of the Applicant's employment, was to the effect that the Applicant was fit for employment of the kind for which she had applied since the "decision" of the WCC - being the position of "suitable duties". The Commissioner errs in failing to find that at the time of the termination, there was NO medical certificate from the Nominated Treating Doctor and NO report from the last two medical practitioners who examined the Applicant - being the Respondent's Dr Samuel and Dr Home, that indicate the Applicant was unfit for employment of the kind for which she applied, and for employment as an ESL teacher."
The language of the submissions - "[t]he Commissioner ought to have reasoned and found" and "[t]he Commissioner errs in failing to find" - demonstrates that these submissions do not identify appellable error but seek a re-hearing of the case brought by the appellant at first instance. The argument falls into the category referred to at [64] - [69] above.
Further, to the extent that the submissions contend that "work capacity" or fitness for work is to be measured against the "position of suitable duties" we repeat what we say at [90] and [91] above.
The medical evidence before the Commission is summarised at [31] above. There is conflict in that evidence as to whether the appellant was medically fit to perform the duties of an ESL teacher, with Dr Home opining (on 11 May 2015) that she was, and Dr Walker expressing a contrary view (on 23 March 2015). Dr Samuell had found (on 21 May 2015) that the appellant was not suffering from a psychiatric condition. The only evidence of the appellant's medical condition as at the time she was medically retired on 29 March 2017 are medical certificates provided by Dr Phan, which imposed significant restrictions on the appellant's fitness for work.
In light of the history of this case, including in particular the appellant's medical history, it is unrealistic and unreasonable for the appellant to expect the respondent, or the Commission, to adopt a simple "last in time" approach to decide which medical opinions should be accepted.
The medical evidence might support an argument that as at 29 March 2017 the appellant was fit for the "position of suitable duties" for which she contends (noting that the Smith Report, which was not a medical report, found to the contrary. We return to the Smith Report below). However, as we observed at [30] above, the appellant has been unable to return to her pre-injury duties since 2008, despite attempts at a graduated return to work which were abandoned in 2011. There is no evidence that her condition has improved since that time. There is insufficient medical evidence that the appellant was, or is, fit to work in her pre-injury role. Importantly, the appellant called no such evidence. It is therefore unlikely that the appellant would be able to make even a graduated return to her pre-injury duties now.

Matter 9 - Smith Report

The appellant submits, in essence, that the Commissioner erred by accepting the Smith Report over those medical reports on which the appellant relies, and by failing to accept the appellant's submissions regarding alleged errors and other deficiencies in the Smith Report.
The submissions are a combination of those categories of objection discussed at [54] - [69] above. That alone provides a basis on which to dispose of this Matter.
We observe further that Ms Smith, through Prudence Consulting Pty Limited, was engaged on a specific basis and for a specific purpose. This is set out at [19] and [20] of the Decision as follows: 18. In addition, Ms Simmons also made a witness statement which was tendered in these proceedings. In that witness statement, Ms Simmons referred to her previous affidavit and confirmed her view that the applicant's symptoms may render her unable to safely perform her duties as a teacher in a public school. Ms Simmons also referred to the expert reports of Dr Samuell, Dr Walker and Dr Home procured by the respondent for the purpose of the Federal Circuit Court proceedings (see subparagraphs 16(21), 16(22) and 16(23) above). Ms Simmons noted the conflicting medical opinions as to the applicant's capacity to safely perform the inherent requirements of her position. Ms Simmons also referred to the expert affidavit of Dr Leong filed by the applicant in those proceedings and concluded that Dr Leong's opinion as to the applicant's capacity was heavily qualified and that significant adjustments would have to be made to allow the applicant to return to work. 19. Ms Simmons stated as follows: 11. As stated above, in addition to the medical reports gathered for the Federal Circuit Court proceedings, there had been quite a number of pre-existing medical reports that had been gathered for various workers' compensation claims and other earlier court proceedings. Those reports also varied with conflicting information as to the Applicant's symptoms and how it affected her functioning. 12. I therefore took the view that I would not be assisted by any further medical assessments. Rather, I noted that there was common ground amongst the doctors as to the symptomatology described by the Applicant and in particular her own treating doctor, Dr Leong, describing the propensity for falls, the Applicant's lack of proprioception and her difficulties with balance. 13. For this reason, I determined that a fitness for work assessment should take place, not from the perspective of a medical assessment of the Applicant's capacity but rather from a workplace health and safety standpoint. That is, I accepted the symptomatology described by the Applicant and her doctors and I wanted to know whether or not there were unacceptable risks to the health and safety of the Applicant, the children who are pupils at the schools at which she might teach and to other staff members with whom she might teach.
The intentions expressed by Ms Simmons were reflected in the terms on which Ms Smith, through Prudence Consulting Pty Limited, was engaged: see [39] and [41] above. In simple terms, Ms Smith was not asked to provide, and did not provide, a medical opinion regarding the appellant's fitness for work. The Smith Report cannot be impugned simply on the basis that it might have been inconsistent with some of the available medical evidence. She was addressing a different question. Further, given the conflicting medical opinions that had been provided, it was to be expected that Ms Smith's conclusions would be at odds with at least some of the medical evidence.
More fundamentally, the appellant called no evidence to contradict the Smith Report. She chose to rely on medical evidence which, save for the medical certificates presented by Dr Phan, pre-dated the Smith Report by almost 15 months and the Determination by some 22 months.
In the circumstances the Commissioner had a reasonable basis on which to find that there was "no fault in [Ms Smith's] reasoning, conclusions and recommendations": at [35] of the Decision.

Matter 10 - Inherent Requirements

This Matter involves two broad challenges to the Decision.
Firstly, the appellant submits that the Commissioner erred by accepting the respondent's argument that her fitness to perform the inherent requirements of her role should be measured against her position as an ESL teacher rather than the "position of suitable duties". This submission falls into the category discussed at [64] - [69] above and is otherwise dealt with under Matter 4 above.
Secondly, and in the alternative, the appellant submits that the respondent failed to identify the inherent requirements for the ESL teacher role and, further, in its final submissions the respondent adopted the language "much wider range of activities" to expand what those inherent requirements would be. The appellant contends that the Commissioner erred by failing to address the appellant's submissions on this point.
This submission falls into the category discussed at [54] - [62] above and can be disposed of on that basis.
We observe further, however, that the appellant's submissions seem to misapprehend the submissions that were made by the respondent in the proceedings below. At [26] of its Final Written Submissions the respondent sought to draw the Commissioner's attention to the language of s 76 of the Teaching Service Act, to ensure that the proper analysis was done in determining whether the statutory test in s 76 had been met. The section refers to "duties of [a] position", which the respondent submitted would incorporate a "much wider range of activities" than "inherent requirements". The respondent was making the point, correctly in our opinion, that the Commissioner should not regard the two terms as being synonymous.

Matter 11 - Reasonable Adjustments

The appellant submits that the Commissioner erred in failing to address in the Decision the submissions she had made regarding the requirement for the respondent to provide reasonable adjustments with regard to her disability.
The Commissioner does in fact deal with the issue at [37] of the Decision. While he does so in a short-hand manner, it is clear that he turned his mind to the question.
In any event, the Matter falls into the category referred to at [54] - [62] above. The questions posed in the appellant's Appeal Submission fall into the category discussed at [64] - [69] above. The Matter could be disposed of on that basis.
Further, to the extent that the appellant's submissions rest on Bindaree Beef, we repeat [103] - [107] above.
Finally, the appellant's Appeal Submission questions whether the Commissioner was required to determine whether the respondent was in error in applying the test of "impracticability" as opposed to "unjustifiable hardship" as required by the Disability Discrimination Act. (In the Determination Ms Simmons stated that there were "no reasonably practicable adjustments that could be made to accommodate [the appellant's] symptomatology".)
The Commission has no jurisdiction to make legal findings as to whether the respondent breached the Disability Discrimination Act. That would require the exercise of federal judicial power.
We observe that on three occasions the appellant commenced proceedings in the Australian Human Rights Commission ("AHRC") alleging disability discrimination. Each time the complaints were terminated by the AHRC. A subsequent application to the Federal Circuit Court was ultimately resolved between the parties. While it is not determinative of the issue it does call into question the extent to which any claim under the Disability Discrimination Act would properly arise let alone be of such significance as to warrant a finding that the termination of the appellant's employment was harsh, unjust or unreasonable. This is again particularly the case in the absence of evidence having been called by the appellant to rebut the findings in the Smith Report.
The Commission must, when exercising its functions, take into account the principles contained in the Anti-Discrimination Act 1977 (NSW): s 169 of the Industrial Relations Act. Part 4A of the Anti-Discrimination Act deals with discrimination on the ground of disability. Section 49D(1) makes it unlawful for an employer to discriminate against a person on the ground of disability. Section 49D(4) provides an exception where the disability precludes the person from performing the inherent requirements of the particular employment or, to carry out those requirements the person would need services or facilities the provision of which would impose unjustifiable hardship on the employer.
For the reasons set out at [177] we doubt that there is any basis for a claim under the Anti-Discrimination Act so as to support a finding that the termination of the appellant's employment was harsh, unreasonable or unjust.
This is consistent with our observations at [100], [159] and [166] - [170] above. We have found that the Commissioner was entitled to accept the Smith Report. On the evidence available to him he made no error in accepting, at [37] of the Decision, the respondent's submissions regarding the impracticability of putting in place adjustments or control measures to assist the appellant to return to her role.
In the context of this case, which concerns the question of whether the respondent's decision to invoke s 76 of the Teaching Service Act resulted in the harsh, unreasonable or unjust termination of the appellant's employment, nothing turns on the Commissioner's use of the word "impracticability" as opposed to "unjustifiable hardship". While it is not for the Commission to make legal findings as to whether the respondent has complied with the Anti-Discrimination Act, the evidence before the Commission, and in particular the Smith Report, tends to the conclusion that the principles in s 49D(4) are met in this case.

Matter 12 - Permanency of condition

The appellant submits that there was no evidence to demonstrate that her invalidity or incapacity was likely to be of a permanent character, as required by s 76(1)(b) of the Teaching Service Act. The Commissioner is said to have erred "by not determining if that requirement had been appropriately satisfied by the Respondent".
At [1] of the Decision the Commissioner reproduces s 76. At [2] he refers to Ms Simmons' opinion that the appellant's "inability to carry out the duties of her position was likely to be of a permanent character". At [26] he quotes a synopsis of the appellant's submissions, including that the respondent "had no medical evidence to determine the [appellant's] alleged incapacity would be of a 'permanent character' to satisfy the requirements of s.76(1)(b)".
It is apparent that the Commissioner has considered the question of the permanency of the appellant's condition.
The Smith Report quoted at [43] above expressed the opinion that the poor prognosis for a successful return to work was "likely to be ongoing and unlikely to change in the future". By accepting the Smith Report (at [35] of the Decision) the Commissioner has adopted this conclusion.
The Commissioner must be regarded as having determined that the requirements of s 76 had been satisfied.
We note further that there was a reasonable basis on which the Commissioner could reach that conclusion, even in the absence of the Smith Report.
The appellant's descriptions of her condition and symptoms had not changed between 2015 and 2017. The most recent medical evidence, being a medical certificate from Dr Phan dated 23 January 2017, certified that the appellant had capacity for "some type of employment" working 8 hours a day, 5 days a week, but subject to an injury management plan/return to work plan and a graduated return. This was in the context of Dr Phan's recommendation that the respondent "provide substantive permanent and flexible suitable work within 30 minutes of home". An inference was available that the appellant's condition was permanent.
There was no evidence to contradict that inference or indeed, as already stated, the conclusions in the Smith Report. Such an inference is also consistent with the views we expressed at [159] above.
More importantly, the appellant did not contend that she was ever likely to recover her health to the point of being able to perform the duties of her pre-injury position. Her case was (in the proceedings below and before us) directed towards being placed in a "position of suitable duties".

Matter 13 - Paramount consideration

The appellant contends that the respondent failed to give paramount consideration to s 5A of the Teaching Service Act and was therefore unable to take any action to terminate the appellant's employment. The Commissioner is said to have erred by not determining whether that requirement had been satisfied by the respondent.
Section 5A of the Teaching Service Act is in these terms: 5A Protection of children to be paramount consideration (1) The protection of children is to be the paramount consideration: (a) in taking any action with respect to an officer or temporary employee under this Act, and (b) in dealing with any appeal against, or determining any claim arising from or in relation to, that action. (2) This section has effect despite anything in the Industrial Relations Act 1996 or any other Act or law.
In his submissions Mr Blunt expanded on the appellant's submissions as follows (Tcpt, 12 November 2018 p 61 (21-29)): "If you read section 5A it is of paramount consideration before any action is taken to an employee. The action that was taken in relation to this employee was medical retirement. They had to make a determination in relation to section 5A, whether it had to do with child protection or some other thing. That's what's in the act. That's what's written in the act. What these people did not do was make a section 5A determination. Having not made a 5A determination we say they couldn't take any action with an employee. That's the way the act is written. It is absurd, but what's that's what the legislature put together."
The submissions are misguided. There is nothing in s 5A that requires a "determination" to be made under the section before action can be taken.
It follows that no error can arise from the Commissioner's alleged "failure" to ensure that such a determination was made.
In any event, it is apparent from the evidence that the protection of children was considered by the respondent in deciding to medically retire the appellant under s 76 of the Teaching Service Act. All of the following documents make reference, in some form or another, to the Department's need to ensure the health, safety and welfare of students: 1. Ms Simmons' affidavit of 10 June 2015 in the Federal Circuit Court proceedings (see [38] above), at [135], [139], [141], [142] and [145]; 2. the letter from Ms Simmons to the appellant dated 16 May 2016, informing her that Ms Smith was to undertake the workplace assessment (see [40] above); 3. the letter from Ms Simmons to the appellant dated 11 August 2016 notifying her that consideration was being given to making a determination under s 76 of the Teaching Service Act (see [44] above); and 4. the Determination (see [49] above).
We draw attention in particular to the letter of 13 May 2016 commissioning the Smith Report (see [39] above), which at [3.2] describes as an inherent requirement of the appellant's position the requirement that she be able to perform her duties "most importantly in this case, without any risk to the safety and welfare of the children" (our emphasis).
This leaves little room for doubt that the respondent complied with s 5A of the Teaching Service Act.
We also observe that at [5] of the appellant's Appeal Submissions the following is said: "Yet her employment was terminated (by the employer who caused the five workplace injuries), because of alleged safety risks for children, other staff and the Applicant…" (Emphasis added)
This suggests awareness by the appellant that the respondent was motivated by concern for the welfare of students, whether or not the appellant accepts that there was a basis for that concern. This argues against the appellant's submission that the respondent failed to have regard to s 5A of the Teaching Service Act.

Conclusions

As the appeal challenges the exercise of a discretion, the appellant must demonstrate error in its exercise of the nature contemplated in the principles enunciated in House v The King. In our view, no such error is established. We do not consider that the Commissioner fell into error of law, or made a finding of a relevant determinative fact that is demonstrably wrong.
The Commissioner accepted the evidence of Ms Simmons and Ms Smith without reservation. He found (at [35] of the Decision) that Ms Smith's conclusions "made it virtually inevitable that the applicant would be medically retired". He accepted the findings in the Thomson Geer Report. Having made these findings it was open to the Commissioner to dismiss the application. This is particularly the case in the absence of evidence called by the appellant to challenge that of Ms Simmons and Ms Smith.
Aside from the question of error, there are no matters of principle at large that justify an appeal being heard. The appeal raises no substantial issues of principle or law, nor does it raise issues having any wider application than to the parties themselves.
At the hearing before the Full Bench, Ms Nomchong made the following submissions (Tcpt, 12 November 2018 pp 54 (43) - 55 (3)): "I say this not with caution but with absolute certainty: The facts in this case are almost unique ‑ that is, we have a 70‑year old teacher suffering from a very wide range of disabilities, both from a non‑work related illness and also from work related psychological injuries. This is a teacher who has not worked in a school, either for the department or anyone else since 2011. The only work she has done is some home tutoring. These are not circumstances which will have greater application across either of the department and they certainly won't have greater application across the Public Sectors because the difference between the services, all the issues, are really settled."
We accept those submissions.
That being so, there is no proper basis on which, in the public interest, leave should be granted.
For these reasons we refuse to grant leave to appeal.
The respondent has asked to be heard on the question of costs in the event leave to appeal is refused. We will make directions for the filing and service of submissions and will deal with the matter in chambers. We will hear the parties on the time to be allowed for the filing and service of submissions.

Order

The Full Bench makes the following orders: 1. Leave to appeal is refused. 2. The respondent is to file and serve written submissions of no more than five pages in support of its application for costs by 4pm on a date to be fixed. 3. The appellant is to file and serve any written submissions in reply of no more than five pages by 4pm on a date to be fixed. 4. The Full Bench will decide the respondent's application for costs in chambers.

Endnotes

Appellant's Appeal Submissions at [91] (Matter 4), [97]-[99] (Matter 5), [143]-[144] (Matter 6), [157]-[158] (Matter 7). [164] (Matter 8), [176]-[178] and [186]-[187] (Matter 9), [199] (Matter 10) and [211] (Matter 11)
Appellant's Appeal Submissions at [20], [23] and [25] (Matter 1), [63] (Matter 2), [75] (Matter 3), [86] (Matter 4), [102], [114], [125], [128] and [137] (Matter 5), [146] (Matter 6), [179]-[181], [184] and [193] (Matter 9), [198] and [200] (Matter 10), [212]-[213] (Matter 11), [225]-[226] (Matter 12) and [229] (Matter 13)
Appellant's Appeal Submissions at [100], [101], [103]-[105], [111]-[113], [115]-[117], [121], [123], [124], [126], [127], [129]-[136] and [138]-[142]

Amendments 01 March 2019 - Case Name "changed (No. 2) to (No. 3) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 March 2019

Occupational Health and Safety Act 2000(NSW)

Workplace Injury Management and Workers Compensation Act 1987(NSW)

Safety Act 2000(NSW)

Government Sector Employment Rules 2014(NSW)

[1999] NSWIRComm 449

At a glance

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Judgment (27 paragraphs)

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Legislation Cited (13)

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Cited By (7)