Moukahal v. Star Track Express Pty Limited [2006] NSWIRComm 1159

Big W Stores v. Donato (1994) 58 IR 239 Burge v. BHP Steel Pty Limited (2001) 105 IR 325 CCH Australia Limited v. Bowen (1998) 79 IR 206 Commonwealth Steel Company Limited v. Ward - unreported Effem Foods Pty Limited v. Urban (1998) 81 IR 341 Hollingsworth v. Commissioner of Police (No.2) (1999) 88 IR 282 IGA Distribution Pty Limited v. Moses (No.2) (2002) 114 IR 307 Leeds and Northrup Australia Pty Limited v. Hull (1992) 46 IR 11 CASES CITED: Little v. Commissioner of Police (No.2) (2002) 112 IR 212 Mitchell v. Macquarie Health Service (1996) 67 IR 107 Newcastle City Council v. Bevan (2001) 120 IR 121 Oswald v. New South Wales Police Service (1999) 90 IR 42 Patterson v. Newcrest Mining Limited (1996) 68 IR 419 Preference of Employment Case (1977) AR 458 Riley v. WorkCover Authority of New South Wales (2006) 151 IR 396 State Rail Authority of New South Wales v. Bauer (1994) 55 IR 263 Tyrell v. State Rail Authority - unreported Urban v. Uncle Bens of Australia Pty Limited (1997) 78 IR 70

HEARING DATES: 31/08/2006, 27/09/2006, 17/10/2006

APPLICANT Michael Aird Transport Workers' Union of New South Wales LEGAL REPRESENTATIVES:

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by the Transport Workers' Union of New South Wales under S.93 of the Industrial Relations Act, 1996

1 On Thursday, 1 June, 2005 the Transport Workers' Union of New South Wales lodged an application under Part 7, Protection of Injured Employees [Ss.91 to 100], of Chapter 2, Employment, of the 1996 Industrial Relations Act on behalf of its member, Mr Bassem (Bobby) Moukahal whose services as a freight handler with Star Track Express Pty Limited were terminated effective from Friday, 4 March, 2005 after 16 years of employment. Mr Moukahal had incurred an injury to his back at work. The Part 7 application was allocated to me and I set it down for a preliminary hearing on Thursday, 30 June, 2005 and further conferences and mentions on Thursday, 7 July, 2005, Wednesday, 27 July, 2005 and Thursday, 4 August, 2005.

2 Conciliation failed to settle the matter. I programmed it for arbitration, making directions for the filing of the necessary evidentiary material and listing the matter for further mentions on Friday, 25 November, 2005, Thursday, 22 December, 2005, Wednesday, 1 February, 2006, Wednesday, 22 February, 2006 and Thursday, 23 March, 2006. At that point the file was returned to the Registry for the allocation of dates for hearing. It was estimated by the parties that the hearing would take two days. The file was returned to me for hearing on Wednesday, 30 August, 2006 and Thursday, 31 August, 2006. In the hearing Mr Aird represented Mr Moukahal and Mr Moir represented Star Track Express.

3 There have been some difficulties in moving this matter along in arbitration and there have been a number of issues raised during the hearing which have delayed the proceedings. To start with, on Tuesday, 29 August, 2006 Mr Moir wrote to me requesting an inspection of the Minchinbury depot where Mr Moukahal was engaged in his employment, viz:

"...The respondent wishes to make an application that the Commission undertake a site inspection prior to the commencement of the evidentiary hearings in the matter. The respondent believes that a site inspection would assist the Commission in understanding the context in which the TWU's application for reinstatement arises, including the nature of the tasks performed by relevant employees, the allocation of modified duties for injured employees, and the manner of the respondent's operations.

To that end, the respondent proposes that a site inspection be conducted at 8.30am tomorrow (Wednesday, 30 August, 2006) at the respondent's (Minchinbury) premises... This request is, of course, subject to the convenience of the Commission. The respondent has sought the consent of the TWU to the above proposal for the site inspection but was still awaiting their formal response at the time of forwarding this correspondence to the Commission.

If the Commission is minded to agree with the above request, it is envisaged by the respondent that the hearing could commence on the following day - Thursday, 31 August, 2006. The respondent believes that the case should be concluded within a single day... The respondent understands that the TWU agrees with this estimate of time for the hearing.

The respondent apologises for the lateness of this request. However, it became apparent only late yesterday between the respondent and yard delegates of the TWU..."

Mr Aird opposed the inspection but, in the circumstances, I agreed to Mr Moir's request for one. However, I declined to hold the inspection at such short notice on Wednesday, 30 August, 2006. I vacated the hearing on that date and arranged the inspection on Thursday, 31 August, 2006 and for the hearing to continue on Wednesday, 27 September, 2006.

4 Mr Aird called Mr Moukahal to give evidence in the hearing with the assistance of an Arabic interpreter. Mr Moir had completed his cross-examination of him in the hearing on Wednesday, 27 September, 2006 when Mr Aird provided a schedule outlining a range of jobs for Mr Moukahal in Star Track Express. It would have been more appropriate for that information to be provided earlier - at least prior to the inspection. In the circumstances, I formed the opinion that an evaluation of the range of jobs would be best explored in the first instance by the parties, rather than dealing with the schedule in the more formal manner dictated by arbitration. I therefore adjourned the proceedings again for Thursday, 17 October, 2006 to permit the parties to hold further discussions to explore the possibility of Mr Moukahal occupying any of those jobs. The parties were unable to reach agreement over the suitability of those jobs for Mr Moukahal.

5 A further complication arose when the hearing resumed on Tuesday, 17 October, 2006. Mr Aird had on Monday, 16 October, 2006 forwarded to me a written statement of Mr Keith McGucken, an occupational health and safety officer employed by the TWU. Mr Aird had indicated his intention to file that written statement and for Mr McGucken to be available for cross-examination. In the hearing on Tuesday, 17 October, 2006, not surprisingly, Mr Moir objected to Mr McGucken's evidence on the basis of the short notice he had received concerning it.

6 I was not anxious to further delay the hearing to permit Mr Moir the opportunity to put on further evidence in rebuttal of Mr McGucken's written statement. Nor, in the interests of ensuring fairness to Mr Moir, did I believe it was appropriate to accept Mr McGucken's evidence at such short notice to Mr Moir. In my opinion, the stricter case management of all files within the Commission does not accommodate a departure from standard practice for the filing of all evidentiary material prior to the commencement of proceedings. I was not disposed to admit Mr McGucken's written statement, in its entirety, into evidence but, following discussions I held with the parties, agreement was reached concerning parts of Mr McGucken's written statement which Mr Moir was prepared to accept into evidence without the need to actually call him for cross-examination.

7 There is a workforce of approximately 1,200 employees engaged by Star Track Express. The depot at Minchinbury is a large complex where a diverse range of goods is delivered, sorted and despatched by freight handlers working in two shifts daily - a morning and an afternoon shift. There are 420 freight handlers employed at that site. Parcels and boxes of varying sizes, shapes and weights are received at the depot from trucks, removed by freight handlers from pallets and placed on conveyor belts. Each item of freight either has a bar code identifying destination or one is placed on it by one of the freight handlers. The bar code is scanned and the freight is despatched from another conveyor belt where freight handlers situated along the conveyor belt remove the freight and place it on pallets for despatch by trucks waiting at docks adjacent to the conveyor belt. Dangerous goods, eg inflammable substances, are processed on a separate conveyor belt. Odd sized, bulky, under-sized or fragile freight is handled manually. So too are valuable items which are held separately in a caged area for security with video surveillance.

8 The freight handlers are required to perform the full range of duties. No job is dedicated in the sense that an employee is assigned to particular work alone. For instance, the work of placing bar code identification on parcels is performed on a rotation basis by all freight handlers. Employees working in an overhead cabin from which freight arrival and despatch is supervised also work for approximately 50% of the time in the physical work associated with the freight. In brief, all freight handling work, as that work is presently structured, involves some physical lifting of freight by employees.

9 The inspection also encompassed various clerical areas of the Star Track Express operations. I was informed that all such clerical work involves some level of communicating with members of the public or drivers. For instance, in a radio room contact is made with drivers concerning issues related to the delivery of freight. A call centre receives telephone calls from customers concerning issues related to the delivery of freight in transit. Salesmen are out on the road to extend business interests.

10 Mr Moukahal commenced employment with Star Track Express in 1989. His duties involved loading and unloading freight from a conveyor, driving a 4 tonne or a 12 tonne truck, operating a forklift, cleaning duties, office work duties, scanning and stacking goods, checking the freight and related paperwork. In late 2001 he was working in the security cage area moving some boxes. He recorded in a written statement which formed the basis of his evidence that because he was busy at the time he was moving the boxes "...very quickly and very fast...". He did not realise that some of the boxes were heavy as there was no weight stickers on them. He injured his back.

11 Mr Moukahal attended a medical practitioner who assessed him as unfit for his pre-injury duties from Thursday, 28 March, 2002 to Monday, 27 May, 2002. Upon his return to work he was placed on a return to work programme which was reviewed and upgraded. He commenced working three hours per day three days per week but that was subsequently upgraded to four hours per day five days per week and then five hours per day five days per week. Consistently his return to work plan restricted his lifting capacity to from 10kgs to 12kgs. In the hearing on Tuesday, 17 October, 2006 Mr Aird tendered into evidence Mr Moukahal's most recent medical certificate - dated Thursday, 12 October, 2006 - which now imposes no restrictions on the time he may work. He may be engaged for eight hours per day five days per week. But he may still lift only up to 15kgs.

12 Mr Moukahal worked in the security area cage because it was thought that the products in that area were ordinarily not so heavy. He was provided with some help in the work but, according to Mr Moukahal, that was not always available. Mr Moukahal was reallocated to work on the returned freight, which he claimed aggravated his back injury and he asked Star Track Express management for another job. He claims that his request was declined on several occasions, viz:

"This is your suitable duty and we don't have any other job for you."

"...normally when anyone gets injured at work the company gives them a chance to do some office work for a while to recover. This choice was never offered to me. I know (four other truck drivers) who were injured and the company gave all of them jobs working in the office. I understand they are all managers now. I also know (another freight handler) was injured at work and was then given office work to recover from his injury..."

13 Mr Moir called Mr Mark Hambling, the operations manager of Star Track Express, as a witness in the hearing. Mr Hambling recorded in the witness statement which formed the basis of his evidence that:

"...The applicant participated in a lengthy rehabilitation process arranged by the company. The process became protracted because it was always hoped that the applicant's condition might improve. However, with time, it became apparent that the applicant's medical condition had stagnated and the return to work plan was not able to be fully implemented..."

14 It was clear from the outset, and outlined in documents signed by Mr Moukahal, that the return to work programme and the lighter duties work allocated to an injured worker would have a finite life, viz:

"...Suitable duties are made available for a closed period and where a return to full pre-injury duties is improbable, vocational assessment and vocational rehabilitation become part of the overall rehabilitation plan. This may include re-deployment within Star Track Express or employment external to Star Track Express..."

Mr Hambling indicated in his evidence that Mr Moukahal was informed that he could not be retained on restricted hours and modified duties indefinitely and that he showed a lack of motivation to move forward, remaining adamant that he would remain working with Star Track Express.

15 One of the numerous progress reports on Mr Moukahal's medical condition - dated Friday, 21 February, 2003 - summarises the position in which Mr Moukahal found himself:

"...Mr Moukahal stated that he did not want to leave Star Track Express and stated that he felt he should be redeployed into another position and that his employer would not consider him. (It was explained to him that) suitable duties were for a restricted period of time only to assist employees in returning to their pre-injury duties and these duties were not on offer as a permanent re-deployment position... If Mr Moukahal wanted to apply for other positions that became available and were advertised internally and he met the criteria for these positions, he would certainly be considered favourably. But he was advised that they would not automatically transfer him into an administrative position... Mr Moukahal is very adamant that he does not want to be redeployed outside Star Track Express. He was advised...that if he could not identify an appropriate re-deployment position, then there would be no option but to seek employment outside Star Track Express, as he could not be kept on restricted hours and duties indefinitely..."

Star Track Express has a policy of promotion initially within its existing staff ranks. During the lengthy period of Mr Moukahal's rehabilitation, numerous positions became vacant and were advertised with notices on the staff notice boards. Mr Moukahal did not make an application for any of those vacant positions, conceding in his evidence in this hearing that he did not believe that they were suitable for him.

16 Mr Moukahal's medical condition reached a plateau at a level which, in Mr Hambling's assessment, did not bring him up to a position where he may return to his pre-injury duties. Finally, on Thursday, 17 February, 2005 Mr Moukahal had a meeting with Mr Hambling and two other members of Star Track Express management. At the meeting, according to Mr Moukahal, Mr Hambling said to him:

"We have to let you go because your injury has not improved and you are not going to improve."

"Can't you give me another job which suits my injury?"

"If I give you a job in the office, then everybody will want a job in the office."

17 That is not Mr Hambling's recollection. He claimed that he spoke to Mr Moukahal in the following terms:

"As you know, the company has been providing you with suitable duties for a long period of time now in the hope that you will one day make a full recovery and that these duties will assist you in this goal. However, it is now clear that you are not going to be fit to carry out your duties as a freight handler and we cannot keep you on indefinitely. In those circumstances, we have no option but to withdraw suitable duties and encourage you to seek employment outside Star Track Express. I am keen to hear anything you might wish to say before we make a final decision."

18 Mr Moukahal asked Mr Hambling to provide him with another job but Mr Hambling told him there were no other jobs available to him. Mr Moukahal stated that other injured workers had been given jobs in the office but Mr Hambling replied:

"That is not true. No one has been given a job because they were injured."

Other employees had applied for work as a promotion and been given it. As I indicated earlier in this decision, Mr Moukahal has made no application for that work, conceding in his evidence that he did not believe that he was capable of performing that work.

"I will go and get a clearance today. I will go to the doctor and get a full clearance."

"We would not accept that certificate. We understand that you have a genuine injury. It's not going away. Be careful what you are saying. It is not helpful."

Mr Moukahal conceded that sometimes he lifted freight that was heavier than his medical condition permitted and Mr Hambling told him:

"You should not be doing that. You are breaking your return to work plan and jeopardizing your workers compensation claim. There is always plenty of help available if you need to lift heavy items. We cannot risk you worsening your back injury. So you are never to do that."

20 On Friday, 18 February, 2005 Star Track Express wrote to Mr Moukahal in the following terms:

"...Further to our meeting on Thursday, 17 February, 2005, we confirm that we are unable to provide you with duties that will help you to achieve your long term goal of recovery from your injury. As discussed in our meeting and on numerous occasions, Star Track Express have been providing suitable duties on the basis that we are working towards a full recovery of your injury. It is now apparent that your condition has not responded to these duties. With this in mind, we believe the best option for you is seek employment outside Star Track Express which will be most suited to your condition and may allow full recovery of your condition.

Accordingly, Star Track Express will withdraw suitable duties and cease your employment on Friday, 4 March, 2005. If we are able to make arrangements with (our workers compensation insurer) and have you referred to a rehabilitation provider earlier, then that earlier date will be the date we cease your employment. The arrangements with (the insurer) will be to have them pay your entitlements for workers compensation benefits directly to you. (The insurer) can advise what is required.

We wish you well in your recovery. You will be supported in accordance with the workers compensation legislation that will be administered by (the insurer)..."

21 On Wednesday, 16 March, 2005 Mr Moukahal appealed to Mr Sean McGee, the Star Track Express director of operations. Mr McGee responded in a letter dated 14 April, 2005 rejecting Mr Moukahal's appeal, viz:

"...I have extensively reviewed your employment situation, your employment file and the work related injury reports. The process followed by the management at Minchinbury has also been closely scrutinised. My investigations and discussions with expert staff members in this particular field have drawn me to the conclusion that your case was fairly treated and the company representatives acted in the correct manner..."

22 On Thursday, 10 March, 2005, as part of Star Track Expresses post-termination assistance to Mr Moukahal, an independent assessment of his status was undertaken by his rehabilitation provider (Active Working Solutions) and a report prepared in that respect by it. Three options were explored in that respect: (i) a return to pre-injury duties, (ii) internal redeployment with Star Track Express and (iii) external redeployment to a different employer. A summary of the findings is as follows:

"... Return to pre-injury duties : Mr Moukahal has been unable to return to his pre-injury duties due to ongoing medical restrictions in the area of lifting and continuous standing. His employment with Star Track Express has now ended and he is seeking alternative employment.

Internal redeployment within the same employer : Mr Moukahal has expressed a strong desire to remain employed by Star Track Express. He is currently pursuing internal redeployment with Star Track Express. However, until such time as Mr Moukahal is notified that he can return to Star Track Express, Active Working Solutions have identified the return to work goal as external redeployment to a different employer .

Considering Mr Moukahal's work experience, transferable skills, travel tolerances and barriers to employment, the following occupations are recommended as vocational options (in no particular order)

• transport clerk: transport clerks compile and check documents for and contents of freight goods, tally and record consignments and destination details of articles, containers and passengers and make freight and transport bookings and related arrangements. Mr Moukahal has knowledge of the transport industry, has transferable skills in the completion of paper work relating to receipt and despatch of goods and has transferable skills in filling orders, sales and invoicing and customer service. He also has basic computer skills, basic clerical skills and a good work ethic... Transport clerks enjoy a large occupation size, average job prospects and low levels of unemployment. As an industry, the transport and storage industry experience a 5% increase in employment in the year from November, 2003 to November, 2004 but only expects a growth of 2% in the years to 2010. A review of the current vacancies through the Jobs Network for Thursday, 10 March, 2005 was 23 jobs for which Mr Moukahal could apply.

• stores assistant: Mr Moukahal's ability to work in this capacity will depend on the company for whom he works and the size of their products. With his current lifting restrictions, Mr Moukahal will be restricted to working with light items which when packed weigh within his lifting restrictions. A despatch clerk is a similar role with greater amounts of clerical duties. This role in a warehouse environment should also be considered... Mr Moukahal would be best placed to pursue stores work in the retail trade rather than storage and transport as employment growth in the retail trade (including storespersons) has been consistent and strong and projected growth is estimated at 2% per year for the next five years. However, given his lifting restrictions, Mr Moukahal's job seeking will be limited by the size of the range of goods.

• sales: Mr Moukahal has spent nearly ten years in the area of sales, including sales representation. It is anticipated that he would be able to return to a sales environment on the proviso that driving was not a main component of the role. Retail or wholesale sales in which customer service was provided in house rather than '...on the road...' would be suitable. As outlined above, the retail trade has enjoyed consistent and strong growth and looks forward to projected growth of 2% over the next five years. Sales assistants are projected to be the largest growth occupation.

23 The report suggests geographical limits for alternative employment - Penrith, Minchinbury, St Mary's and Mount Druitt. The rehabilitation provider has indicated its preparedness to assist Mr Moukahal with developing a resume for him as a job-seeking tool and otherwise assist him in placement in alternative employment, maintaining a liaison with Mr Moukahal's medical practitioners. During 2003 Star Track Express had arranged for Mr Moukahal to attend a basic course of training with computers - word processing, spreadsheets, database, general operations and business and presentation graphics - to assist him in re-deployment. Mr Moukahal completed that course. But the offer held out to Mr Moukahal for further assistance in re-deployment was not apparently taken up by him. He remains committed to returning to work with Star Track Express in any capacity.

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

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

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

The word "reinstatement" for Part 7 proceedings has a wider meaning than is given it in proceedings initiated under Part 6, Unfair Dismissals [Ss.83 to 90]. By virtue of S.91(3) a "reinstatement" is expanded to include "re-employment" (provided that, in terms of S.92(2), the position for which the injured worker applies is not more advantageous than the position he had formerly occupied).

25 The TWU application on behalf of Mr Moukahal comes to me under S.93, viz:

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

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

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

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

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

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

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

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

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

26 By comparison, for claims made under Part 6 there is a distinction drawn in Ss.89(1) and 89(2) between reinstatement and re-employment which is not made for Part 7 proceedings. In particular, S.89(2) reads as follows:

"If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable."

Ss.91(3), 92(2) and S.94 do not speak in those terms: they speak of availability of the work and fitness for the position but not of suitability of the dismissed worker to perform the work in question. Nevertheless, I regard it as unarguable that the requirement that flow from S.89(2) that the dismissed employee is suitable for Part 6 proceedings must be imported into Ss.91(3) and 92(2) for Part 7 proceedings. And, as I indicate in more detail later in this decision, it is Mr Moukahal's suitability, as much as his fitness , for work with Star Track Express which presents difficulties for the TWU claim on his behalf.

27 S.95 reverses the onus of proof that a dismissal was caused by the injury, viz:

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

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

28 There is no dispute between Mr Aird and Mr Moir that Mr Moukahal's dismissal flowed entirely out of the injury he sustained in the course of his employment. Consequently, S.95, and the reversal of the onus of proof that arises from it, does not apply in this hearing. Nor is there any dispute between Mr Aird and Mr Moir that Mr Moukahal remains unfit for the work as a freight handler for which he was previously employed. The issue before me is essentially whether or not there is other work available to Mr Moukahal in Star Track Express consistent with both his medical fitness and his suitability.

29 Nevertheless, Mr Aird argued that the onus of proof still rested with Star Track Express under Ss.94(2) and (3) to satisfy me that there was no position available within its operations in which it may place Mr Moukahal. In his submissions, Mr Aird emphasised Mr Moukahal's lengthy period of employment with Star Track Express and the skills and experience that he would have gained over that time in the handling of freight which would have considerable value to Star Track Express. He believed that in an organisation of the size of the Star Track Express it should have been possible to accommodate Mr Moukahal's continued employment.

30 Mr Aird relies in that respect on the conclusions reached by Mr McGucken in his written statement, viz:

"...From my extensive experience in the transport industry and from my knowledge of the Star Track site, which is the biggest single transport site in the country, as far as I am aware, I find it impossible to believe that someone with Mr Moukahal's skills cannot be easily and effectively redeployed. For Mr Moukahal not to be redeployed, in my view, seriously undermines a key policy position of the workers compensation scheme which is to firstly rehabilitate injured workers to their pre-injury duties and, if this is not possible to redeploy injured workers to alternate positions within the company. This should occur before any external placement. If the largest transport site in Australia cannot redeploy a freight handler to a transport clerk's position, to which Mr Moukahal has been assessed as having transferable skills, then redeployment for transport workers is essentially a myth..."

31 Mr Aird referred to the policy of Star Track Express to recruit for vacant positions internally by placing advertisements for those vacant positions on notice boards and simply relying on Mr Moukahal to apply for one of those vacant positions. According to Mr Aird, the obligations which flowed from Part 7 for injured workers suggested that something more than that would be expected of an employer. I share Mr Aird's view in that respect. In my opinion, it would be expected that an employer would take a proactive role in finding a position for a worker injured in the course of employment. I believe that Part 7 does place a responsibility on an employer to do more than just permit the injured worker to apply for vacant positions as they fall due. Star Track Express is obliged to take more than a passive stance in the redeployment of Mr Moukahal. But the question remains whether or not, despite its size, it had suitable work for Mr Moukahal and whether, in fact, it had met its obligations under Part 7 in its rehabilitation of Mr Moukahal. Mr Moir argued that it had done so.

32 Mr Moir indicated in his submissions that Star Track Express had no appropriate work available to Mr Moukahal commensurate with his medical condition. Mr Moukahal's difficulties in communicating in English limited the clerical work he could perform since all such work involved some communication, either verbal or in writing, with the public or drivers. Contact with customers was an integral part of the jobs which would otherwise be available to Mr Moukahal and employment in that work was not "...appropriate employment..." for him. He pointed out that Mr Moukahal had been engaged on a rehabilitation programme for a considerable time - "...the longest ever witnessed..." according to Mr Hambling. Mr Moukahal's medical condition had not changed during the time and, consequently, the termination of his employment had become an unfortunate inevitability.

33 During the proceedings Mr Moir provided a list of positions which were on the establishment of Star Track Express that met the criteria of Ss.92(2) and 94(3)(a), ie employment in a position equal to or less advantageous than the position of freight handler which was Mr Moukahal's substantive position, eg sales support officer, coding clerk, credit clerk, customer service clerk, fleet clerk, operations clerk, truck washer, etc. According to Mr Moir, none of those positions were suitable for Mr Moukahal. According to Mr Moir, there was no employment of any kind that Star Track Express may reasonably make available to Mr Moukahal [S.94(3)(b)].

34 It is trite to say that an employee injured in the course of his duties should be given proper rehabilitation and every chance to be integrated back into the workforce. As Bauer J of the former State Industrial Commission indicated in his unreported decision of Thursday, 17 October, 1991 in Tyrrell v. State Rail Authority [Matter No. 493 of 1990 at pp.18 and 19]:

"...The aim of rehabilitation, if such consideration be relevant to the issues of construction raised, must surely be to integrate workers into the workforce at a type of work that they can perform and to be useful that integration requires the continuing provision of suitable employment. There is an obligation on the employers to assist and co-operate in such a purpose, an obligation contained not only in legislation but imposed on the employer by its position as a corporate citizen. If the employer terminated the employment of an employee who after a work related injury has been integrated into the workforce, the subversion of the laudable aim of rehabilitation lies in the dismissal not the reinstatement…"

The Court of Appeal of the State Supreme Court (Kirby P, Sheller and Meagher JJA) in State Rail Authority of New South Wales v. Bauer (1994) 55 IR 263 considered the matter further and Sheller JA, with whom Kirby P and Meagher JA agreed, endorsed that proposition by Bauer J [ Mitchell v. Macquarie Health Service (1996) 67 IR 107 at p.112].

35 That approach is consistent with the formal guidelines for employers laid down by WorkCover for return to work programmes which Mr Aird provided in evidence, viz:

"...Priority should be given to an early, safe return to suitable duties following injury or illness in a manner that takes account of all relevant factors including medical input... The hierarchy of return to work goals should be followed:

36 For any dismissed employee, the Commission has always given priority to either reinstatement or re-employment. [Leeds and Northrup Australia Pty Limited v. Hull (1992) 46 IR 11 at p.15, CCH Australia Limited v. Bowen (1998) 79 IR 206 at pp.217 and 218, Oswald v. New South Wales Police Service (1999) 90 IR 42 at pp.67 and Hollingsworth v. Commissioner of Police No.2 (1999) 88 IR 282 at pp.341 and 342, Burge v. BHP Steel Pty Limited (2001) 105 IR 325 at pp.345 and 346 and Little v. Commissioner of Police (No.2) (2002) 112 IR 212 at pp.243 and 244]. Mr Moukahal has consistently rejected any suggestion for re-training and replacement in some other form of employment. He remains committed in this hearing to returning to work for Star Track Express and that is the relief sought by the TWU on his behalf. However, it appears to me that his rehabilitation provider has emphasised redeployment outside the Star Track Express operations.

37 If other work is available for an injured worker to perform, as Mr Aird has submitted, I believe that it would constitute an unfairness to the injured worker that he is not given the opportunity to perform such work [Urban v. Uncle Bens of Australia Pty Limited (1997) 78 IR 70 at p.72]. An employer may still be able to accommodate an injured worker in employment with some medical restrictions on performance. For instance, in Big W Stores v. Donato (1994) 58 IR 239 the Full Bench of the Commission (Fisher P, Cullen J and Sheils CC) dismissed an appeal by an employer against an order of reinstatement at first instance for an employee injured at work but, nevertheless, in the opinion of the member of the Commission hearing the matter, capable of performing the bulk of the range of duties of his position. After all, Star Track Express has a workforce of in excess of 1,000 employees which gives it more scope to accommodate an injured worker than would be the case for a smaller establishment.

38 But at the same time it would neither be fair to the dismissed employee or his employer to engage him in work for which he is not either fit medically or capable of performing. The Full Bench of the Industrial Court of Australia (Wilcox CJ, von Doussa and North JJ) in Patterson v. Newcrest Mining Limited (1996) 68 IR 419 refused to reinstate an injured worker and Wilcox CJ (with whom von Doussa J agreed) commented as follows (at p.421):

"...Anybody would have sympathy for (the injured worker); but I think it is quite impracticable, and in defiance of common sense, for the court to order that he be taken back to a job that will involve him in a real risk of injury. Nothing is to be gained by assessing degrees of injuries or speculating when an injury might occur. It would simply be irresponsible of the court knowingly to put the appellant in that position or to require the respondent to accept that risk..."

39 As I indicated in my decision in Urban v. Uncle Bens of Australia Pty Limited (at p.76):

"...Each case must stand alone: much depends on the type of the injury sustained, the nature of the employer's business, the type of work available, what other skills the employee holds, what training he needs and other variable factors. It is a question of determining whether an employee's medical condition and the limitations it imposes on the work he may perform overrides the understandable desire he has to return to work with which he is familiar; sometimes it is a knife edge balance..."

40 In the unreported decision of Friday, 16 December, 1994 in Commonwealth Steel Company Limited v. Ward [Matter No.IRC 3144 of 1993] the Full Bench of the former Commission (Hill and Hungerford JJ and Sheils CC) took the view (at pp.16 and 17) that the word "available" in the equivalent provisions to S.89(2) was not the same thing as "vacant": it simply meant that it would be possible to place a dismissed employee in an existing position on an employer's establishment apart from the position which he formerly occupied. By comparison, in Effem Foods Pty Limited v. Urban (1998) 81 IR 341 the Full Bench of the Commission (Hill and Maidment JJ and Buckley C) commented (at p.346) that:

"...the power under S.89(2) to order re-employment is limited to re-employment in another position that the employer has available. The section requires the existence of an available and suitable position; it does not authorise the Commission to require an employer to create a position tailored to the abilities of the applicant..."

41 The decision in Effem Foods Pty Limited v. Urban is no longer a safe decision on which to rely and over time there has been considerable erosion of that decision. For instance, in Newcastle City Council v. Bevan (2001) 120 IR 121 the Full Bench of the Commission (Wright J - President, Walton J - Vice President and Connor C) commented (at pp.120 and 121) that:

"...in the present proceedings the respondent in the primary appeal has, in our view, demonstrated that the Full Bench decision in Effem Foods Pty Limited v. Urban is arguably incorrect and should, in appropriate proceedings, be reconsidered..."

And again in the Full Bench (Wright J - President, Walton J - Vice President and Redman C) in IGA Distribution Pty Limited v. Moses (No.2) (2002) 114 IR 307, commented (p.315) that, whilst it was not strictly necessary to address the operation in S.89(2) in detail (therefore making its comments in that respect obiter dicta ):

"…we consider that the approach set out in the decision of the former Full Commission in Commonwealth Steel Company Limited v. Ward is to be preferred to the decision in Effem ..."

42 Ultimately, in Riley v. WorkCover Authority of New South Wales (2006) 151 IR 396 at p.420 the Full Bench (Wright J - President, Boland J and Connor C) finally resolved the matter in favour of the reasoning in Commonwealth Steel v. Ward, ie the word "available" in S.94(3) is given a wider meaning than had been provided in Effem Foods Pty Limited v. Urban. Riley v. WorkCover Authority of New South Wales confirmed that, before a finding can be made as to whether the dismissal was harsh, unreasonable or unjust, there has to be a full and transparent consideration by the Commission as to whether there was a position available that was suitable for the employee, given the medical restrictions imposed, for if such suitable position was available a finding that the dismissal was not harsh, unreasonable or unjust may not be open. Whether there was a position actually available does not mean that the position has to be vacant but whether there was a position "...capable of being used by, or at the disposal or within the reach of the employer - whether or not it was vacant at the time..." 43 That does not mean that an employer is obliged to create a special position on its establishment to accommodate an injured worker. In Effem Foods Pty Limited v. Urban (1998) 81 IR 341 the Full Bench of the Commission (Hill and Maidment JJ and Buckley C) commented (at p.346) that:

"…the power under S.89(2) to order re-employment is limited to re-employment in another position that the employer has available. The section requires the existence of an available and suitable position; it does not authorise the Commission to require an employer to create a position tailored to the abilities of the applicant…"

44 In his evidence Mr Hambling emphasised that when vacant positions became available in Star Track Express, those positions were advertised internally with the position going to the employee who was considered to be the best applicant for the job. That is an unobjectionable or unremarkable course for an employer to adopt. Indeed, it goes without saying that an employer should reserve to itself the right to appoint the best person for any vacant position. But, in my opinion, that approach does still clash with Part 7. The test under Part 7 is not whether the injured employee is the best person for the job but simply whether he is suitable for it at all. To that extent I believe that the policy underlying Part 7 is to give preference in employment to an injured worker over another employee who, in the assessment of the employer, may have been the better applicant [Urban v. Uncle Bens of Australia Pty Limited (pp.74 to 77]. To my mind, the correct approach is akin to the position where at one time absolute preference was given to trade unionists over non-unionists at the point of employment, provided they were suitable for the work in question - S.129B of the 1940 Industrial Arbitration Act [the Preference of Employment Case (1977) AR 458] or the similar preference given to persons competent for the work in question who had been members of the armed forces during the Second World War - S.20(4) of the 1940 Act. But, because of Mr Moukahal's injury and capabilities, the question remains whether or not he would be suitable for any of the positions which Star Track Express has on its establishment.

45 I summarise the position with claims made on behalf of injured workers under Part 7 as follows:

(i) an employee injured in the course of his duties should be given proper rehabilitation and the chance to be integrated into the workforce where his state of health permits it;

(ii) there is an overriding common law duty on an employer to provide a safe working environment for all of his employees, reinforced by S.8(1) of the 2000 Occupational Health and Safety Act and, if an injured worker is not medically fit for any of the types of work which an employer has available, he would be in breach of his responsibility to provide a safe system of work for that employee if he retained him in such work;

(iii) reinstatement is ordinarily not an option for an injured worker in a job where he remains unfit to perform the work in that position;

(iv) the degree of the injury may dictate whether an employee may resume work; if an employee is capable of performing the bulk of the work required of him, it may be possible for him to resume work in that capacity with some additional assistance to him; (v) if other suitable work is available for an injured worker to perform, it would constitute an unfairness to the injured worker that he is not given the opportunity to perform such work and if some retraining would be required he should be given that retraining to assist him in meeting the requirements of the job;

(vi) provided an injured worker is capable of performing the work in his former position or other suitable work, preference in employment should be given to him even though he may not necessarily be the better employee for that work;

(vii) whilst it may be open to an employer in the settlement of a Part 7 application to create a new position for an injured worker, there is nothing in Part 7 which compels him to do so;

(viii) again, whilst an employer may reach an agreement to transfer an injured worker to a position that is actually more advantageous to him, in view of the provisions of Ss.92(2) and 94(3)(a), the employer may not be compelled to do so; (ix) there are two conditions which apply under S.89(2) and which, in my opinion, should be imported into S.92(2): firstly, that the former employer has another position available and, secondly, that in the opinion of the member of the Commission hearing the matter the injured employee is suitable for that position.

(x) it is not necessary that the alternative position actually be vacant - only to use the words approved by the Full Bench in Riley v. WorkCover Authority of New South Wales (at p.420) that "...another position was of avail to, capable of being used by, or at the disposal or within the reach of, the employer - whether or not it was vacant at the time..."

46 Whilst Star Track Express is a relatively large employer with, I would think, in the ordinary course some scope for replacement of staff to other positions, the reality in this case is that the employees work in teams and, to that extent, any of the positions to which Mr Moukahal would be capable and suitable to occupy would involve, to varying degrees, lifting weights beyond Mr Moukahal's medical capability. Furthermore, the limited number of clerical jobs available all involve some contact with the public - customers or drivers - which I believe would present Mr Moukahal with some difficulties in communicating in English. Many of those clerical jobs still involve some lifting of freight from time to time as well.

47 And the fact that Mr Moukahal sought and was given the assistance of an Arabic interpreter when he gave his evidence in this hearing serves also to confirm that Mr Moukahal would have some difficulties in communicating with members of the public or drivers in those clerical positions. Mr Moukahal did not in fact rely on the interpreter's assistance much when he gave his evidence in this hearing. He usually responded to the questions put to him in English promptly without the assistance of the interpreter. But sometimes I was satisfied that he found some difficulties in communicating his answers in English and it was not always possible to understand his answers clearly. Moreover, he clearly felt more comfortable to have an interpreter on hand in court to assist him as and when that interpreter was needed.

48 I have formed the impression from the evidence that Mr Moukahal has a very strong work ethic and I understand his wish to return to work in an environment where he has worked for a lengthy period of time and with respect to which he is more familiar. But that should not blind him to the possibilities which his redeployment to other employment outside Star Track Express would provide for him, particularly in view of the vocational assistance held out to him by the rehabilitation provider. I am satisfied that his injury is such that there is no work available or suitable in Star Track Express for him to perform and that, moreover, it is not in his best interests to continue to seek such work.

49 Clearly, the modified work provided to Mr Moukahal as part of his return to work programme was never to be a permanent arrangement and it cannot be expected that Star Track Express will continue it indefinitely no matter how much he may wish that to occur. The rehabilitation programme for injured workers in place for Star Track Express employees does have a strong emphasis on assisting employees in finding alternate employment. I am convinced that, notwithstanding Mr Moukahal's desire to remain working for Star Track Express, the better course for him to adopt is to take up the option held out to him to assist him in re-deployment elsewhere.

50 For those reasons, I see no grounds for my intervention in support of Mr Moukahal. I dismiss the TWU application lodged on his behalf.

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