National Union of Workers, New South Wales Branch (on behalf of Todd Bell) and Terminals Pty Limited [2008] NSWIRComm 1118

National Union of Workers, New South Wales Branch (on behalf of Todd Bell) and Terminals Pty Limited [2008] NSWIRComm 1118 - NSWIRComm 2008 case summary — Zoe

[11]

DECISION [2008] NSWIRComm 1118 1 On 26 August 2008, I issued an earlier decision in this matter ([2008] NSWIRComm 1073) which found in favour of a claim by the National Union of Workers, New South Wales Branch ("the applicant") seeking the reinstatement of Todd Bell to his employment with Terminals Pty Limited ("the respondent"). That application was made pursuant to s242 of the Workers' Compensation Act 1987 ("the Act"). The earlier decision read, in part: [41] The applicant has established a case favouring an order for the reinstatement of Mr Bell to the position of terminal operator, grade 4, with continuity of service, and I am satisfied it is appropriate to order accordingly… and further: [44] I accept also it is appropriate, as a corollary to the findings in favour of reinstatement and continuity of service, to accede to the applicant's submission that there should be a remuneration order in Mr Bell's favour. I note both parties sought leave to address further on what actually may be an appropriate amount of remuneration in the event the applicant's claims on behalf of Mr Bell were successful. 2 In proceedings on 18 September 2008, I gave the reinstatement order made in paragraph [41] of the earlier decision an operative date of 24 September 2008. The issues particular to the operative dates concerning continuity of service and the amount of remuneration remained outstanding and, by agreement, were to be the subject of further written submissions from the parties. 3 On 19 September 2008, the respondent filed an application for leave to appeal and to appeal against the earlier decision, and sought a stay. Despite the appeal and stay, the parties subsequently made further written submissions on continuity of service and remuneration in accordance with the programme already in place in this matter before the appeal was lodged. 4 On 31 October 2008, I sought clarification from the parties concerning the extent of the stay. By letter dated 3 November 2008, Stevens & Associates, solicitors for the respondent, advised the stay was confined to the reinstatement order (and confirmed it was the respondent's preference that I should deal with the outstanding matters before the appeal scheduled for 6-7 November 2008). Given the confirmation from Stevens & Associates yesterday advising the stay of the earlier decision was limited only to the reinstatement order, I have listed the matter for decision today on the outstanding issues. Submissions - continuity of service

[19]

(ii) The Commission notes that this is an amount equivalent to the amount lost by Mr Bell by virtue of his dismissal between 4 October 2007 and 19 September 2008 deducting any payments received from alternative employment or in relation to workers' compensation entitlements and not counting the period between 28 April 2008 and 25 June 2008. 8 The reference in the proposed notation to excluding the period 28 April 2008 to 25 June 2008 appears to be because the proceedings went into abeyance for a period of time consequent upon submissions by the applicant concerning amended programming of the hearing dates. However, I note in this respect, that the initially-rescheduled dates of 18-20 June 2008 were, in turn, deferred to 25-27 June 2008 on the application of the respondent. 9 Mr Joseph submitted the figures concerning earnings were based on the best information that could be garnered in circumstances where Mr Bell was no longer in possession of all his pay advices, as he had forwarded them to the workers' compensation insurer. Mr Joseph also submitted that in the absence of some indemnity arrangements concerning recoupment by the workers' compensation insurer, the applicant's proposed orders and notations were appropriate, and there should be no suggestion of any possibility of "double dipping". 10 Mr R Warren of counsel, for the respondent, submitted that in relation to any order for remuneration, the Commission should take account of the time the respondent first became aware of the report prepared by Dr Seamus Dalton, and of his opinion as to Mr Bell's physical condition and the work he could perform - particularly given the reliance in my earlier decision on Dr Dalton's evidence, as opposed to the medical views of three other physicians. In this respect, Mr Warren submitted the earliest the respondent was aware of Dr Dalton's medical report was on 5 May 2008. Mr Warren further noted that, in the normal course of events, an employer might take some time to consider what work may be available in relation to any such assessment. Allowing for such considerations, Mr Warren submitted it would be appropriate to consider a reasonable date of notional re-employment for the purposes of any remuneration order as being no earlier than 19 May 2008, that is, a fortnight after Dr Dalton's report was known to the respondent. Mr Warren submitted that with respect to the period 19 May 2008 to 19 September 2008, any order for remuneration should be no greater than $8,393.60 - taking into account payments Mr Bell had received as wages in his alternative employment and as benefits from the workers' compensation insurer. Those amounts were calculated in the respondent's submissions as follows: 10. Mr Bell's rate of pay for ordinary time per week for the relevant period should have been $1,535.89. Thus, the following calculation reveals a shortfall in remuneration earning during the relevant period of $8,393.60 (gross):

[25]

It was not until Dr Dalton had prepared his report and it was available to the parties that they would have been aware of the more expansive view of Mr Bell's fitness and capacity to perform the work of a terminal operator grade 4. It may be noted that, at least so far as the weight lifting recommendations were concerned, Dr Dalton's view accorded with those that earlier had been contemplated by Dr Lose in his report dated 12 July 2007 - and, to that extent, there was a measure of convergence, over the passage of time, of the preliminary opinion of Dr Lose and the subsequent assessment by Dr Dalton in April 2008. 15 It may be accepted that the evidence of Dr Dalton was of significance in the proceedings given my findings in the earlier decision concerning his report and evidence, but, equally, it cannot be said the applicant would not otherwise have made out a case for relief by way of reinstatement had it not been for Dr Dalton's evidence as to Mr Bell's fitness from around April 2008. Nonetheless, as I noted in the earlier decision at paragraph [24]: [24] I consider the most recent medical assessment given by Dr Dalton formed the best basis for a contemporary snapshot of Mr Bell's capacities at the time of these proceedings, notwithstanding the earlier assessments by Drs Lose, Loefler and Yung - which were, by the time the hearing proceeded, about a year old. Dr Dalton is an obviously well-qualified, specialist physician and he had the benefit of most recently examining Mr Bell. If a specialist such as Dr Dalton had, for instance, formed the view that Mr Bell could not safely manage weights above 5kg, that evidence could not be disregarded so far as these proceedings are concerned. Medical conditions typically involve dynamic, not static, considerations - even where there is something in the nature of an underlying permanent condition. The letter dated 4 October 2007 seeking Mr Bell's reinstatement referred to 15kg weights. The initiating process filed on 19 November 2007 noted, in more general terms, at "B" that the application was for "a reinstatement order under s242 of the Workers' Compensation Act 1987" - albeit, in support of that application, the applicant outlined supporting information, including the assessments of Mr Bell's fitness that accorded with those in the WorkCover certificate signed by Dr Yung approximately six weeks before the application was filed. However, I could not reasonably proceed on the basis that the Commission was somehow relevantly bound in its consideration of the reinstatement application only to a 15kg specification, if the most contemporary medical evidence suggested a much lesser standard of, say, 5kg - any more than I could disregard the fact the evidence persuasively indicated a standard of up to 25kg.

[28]

Despite Mr Warren's submissions, I have not been satisfied that the amount of remuneration should be discounted by an amount of two weeks referable to a notional period of consideration during the period 5-19 May 2008. Shortly stated, there was no evidence the respondent gave any consideration of the type otherwise contemplated in Mr Warren's submissions, e.g., Dr Lose was not commissioned to undertake a further examination; the parties did not enter into constructive discussions concerning a return to work after Dr Dalton's report; there was no application by the respondent for a referral to a medical referee or medical panel, etc. The respondent's knowledge of Dr Dalton's report from 5 May 2008 did not seem to have any impact on the position of the respondent as it concerned reviewing the possibility for a return to work. It is difficult, in such circumstances, to accept the proposition the respondent should be regarded as being allowed time to consider a notional re-employment in terms of an order for remuneration, when the evidence did not support a conclusion there were, in fact, any such developments. If, however, there had been evidence of the type to support the submissions advanced by Mr Warren concerning the period in question, it may have put a different complexion on the respondent's submissions in this respect. In the circumstances, I consider the amount of remuneration proposed by the respondent an appropriate for an order should be re-calculated without omitting the period 5-19 May 2008. 18 Second, I note the submissions of the respondent as they concerned remuneration were calculated to 19 September 2008, whereas the reinstatement order was given an operative date of 24 September 2008. As such, it appears the respondent's remuneration figure of $8,393.60 will need a further, small adjustment to take account of the operative date for the reinstatement order. 19 In circumstances where my earlier decision as to Mr Bell's reinstatement is the subject of a pending appeal before the Full Bench, I do not consider it presently would be appropriate to give an operative date for an order concerning payment of remuneration. The parties have leave to make further submissions on an appropriate operative date for payment of remuneration, in the event that remains a relevant issue between the parties following the determination of the appeal to the Full Bench. ____________________

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