New South Wales Nurses and Midwives Association (on behalf of Jennifer Cox) v Manchester Unity Australia Limited

Orders sought from the Commission

1. In the initial application to the Commission, an order was sought effecting reinstatement to the role of an Assistant in Nursing Team Leader 'or employment of a kind at the Courtlands Village Facility or another of the Respondent's facilities in the Parramatta area.'
2. The orders sought from the Commission were subsequently modified by the applicant to read as follows: 1. Manchester Unity reinstate Ms Cox to employment of a kind in areas of nursing duties that Ms Cox is capable of performing to the level of Assistant in Nursing Team Leader, in conformity with her medical restrictions and the functional assessments undertaken by Jessica Moretti on 22 April 2014 and 26 June 2014 Or in the alternative 2. Manchester Unity reinstate Ms Cox to employment of a kind in areas of recreational duties that Ms Cox is capable of performing to the level of Recreational Activities Officer, in conformity with her medical restrictions and the functional assessments undertaken by Jessica Moretti on 22 April 2014 and 26 June 2014 Or in the alternative 3. Manchester Unity reinstate Ms Cox to employment of a kind in connection with the Courtlands Village facility and/or the Northcourt facility, performing the duties described at paragraph 32 of Ms Cox's witness statement in those proceedings dated 2 July 2014 or any other nursing, recreational activities or administrative duties which Ms Cox's nominated treating doctor has certified that she is fit to perform and in the following areas: i. The Grange ii. The Grove iii. The Terrace iv. The Vista; and v. Northcourt.
3. The Commission is not confined to considering only the remedy that was initially sought from the employer, of course; so much is evident from the terms of subss.243 (1) and (2). Nor, as is apparent from those same subsections, is it confined to making the orders sought by an applicant in the proceedings before it.
4. It is clear that it was sought that to whatever employment Ms Cox be reinstated, it was to be subject to medical restrictions, including a limitation that she not lift more than 8 kg.

The statutory scheme

1. As this matter turns in part on a proper reading of the statute that governs the application, it is useful here to set out its terms.
2. The relevant provisions of the WC Act are these: 241 Application to employer for reinstatement of dismissed injured worker (1) If an injured worker is dismissed because he or she is not fit for employment as a result of the injury received, the worker may apply to the employer for reinstatement to employment of a kind specified in the application. (2) The kind of employment for which the worker applies for reinstatement cannot be more advantageous to the worker than that in which the worker was engaged when he or she first became unfit for employment because of the injury. (3) The worker must produce to the employer a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement. 242 Application to Industrial Relations Commission for reinstatement order if employer does not reinstate (1) If an employer does not reinstate the worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for a reinstatement order. … 243 Order by Industrial Relations Commission for reinstatement (1) The Industrial Relations Commission may, on such an application, order the employer to reinstate the worker in accordance with the terms of the order. (2) The Industrial Relations Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), but only if the Commission is satisfied that the worker is fit for that kind of employment. (3) If the employer does not have employment of that kind available, the Industrial Relations Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being: (a) employment of a kind that is available but that is less advantageous to the worker, or (b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation). (4) If the Industrial Relations Commission orders the worker to be reinstated, it may order the employer to pay to the worker an amount stated in the order that does not exceed the remuneration the worker 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.
3. These provisions previously appeared as ss.92-94 of the Industrial Relations Act 1996 ('the Act')

The operation of the legislative structure

1. It is immediately apparent that the initial step in the operation of the statutory scheme is an application by an injured worker to an employer for reinstatement in employment to work of a kind which the worker must specify in the application: subs.241(1). That does not have to be to the work the worker previously carried out for the employer. It can be any kind of employment at all provided that, first, the kind of employment is no more advantageous to the worker than that in which the worker was engaged at the time of becoming unfit: s.241(2), and second, that the worker produces to the employer a certificate from a medical practitioner stating that the employee is fit for the employment for which the worker applies: s.241(3).
2. It is equally apparent that the Commission's powers are enlivened if, and only if, an employer does not reinstate the worker who has 'so applied', that is, who has made an application precisely of the kind and in the terms required by s.241. It is not the fact of an employer's refusal to reinstate alone, but the combination of, first, a worker making an application to be reinstated in specified work accompanied with a certificate from a medical practitioner stating that the worker is fit for the type of work specified in the application and second, an employer's refusal to reinstate to the employment sought in the application or other employment no less advantageous to the worker, that permits an application to be made to the Commission.
3. This is apparent from the statutory provisions, but also follows precisely the analysis carried out by a Full Bench of the Commission in Cansino v South Western Sydney Area Health Service (1999) 130 IR 1 at 11-12. The Full Bench in Cansino went on to hold: "(11) An order may be made reinstating the employee to either employment of the kind for which the employee has applied (which may be as or less advantageous than the pre-injury employment) or employment of any other kind that is no less advantageous to the employee than that applied for. In either case, and importantly, any such order can only be made if the Commission is satisfied the employee is fit for that kind of employment: s94(2). (12) Whether and to what extent any such order is made under s94 is discretionary and the section should not be construed as imposing a mandatory requirement upon the Commission to make such an order, subject, of course, to the discretion being exercised in a proper manner. So much is clear from the repeated use in the section of the word "may". (14) Because of the provisions of s94(3), it is apparent that any order made under s94(2) must be referable to the situation where the employer has "available" employment of the kind to which the employee has applied for reinstatement. As well, any other kind of employment that is no less advantageous to the employee than that applied for may only be the subject of an order under s94(2) if the Commission has determined that employment of that kind for which the employee has applied for reinstatement is available. This must follow, it seems, from the fact that s94(3) in permitting an order in respect of employment of a kind that is available but which is less advantageous to the employee as opposed to employment which is no less advantageous to the employee than that applied for may only be made where "the employer does not have employment of that kind available." (17) The alternative orders available under s94(3) may only be made if the Commission is satisfied that the employer does not have employment "of that kind" (that is, the employment referred to in s94(2)) available." (Cansino loc cit at 13)

'Employment of a kind'

1. I here observe that the term 'employment of a kind' was used in the orders sought and in the proceedings as if it were a stand-alone phrase meaning some discrete, unspecified form of employment at large, broader than a particular and identifiable form of employment. It does not mean that.
2. The words 'employment of the kind' and 'employment of a kind' themselves grammatically cannot, and do not, stand alone. In each place that they appear in the WC Act they are expressly referable to, and are qualified by, another phrase, without which they have no meaning.
3. The words 'employment of a kind' in subs.241(1) of the WC Act mean, as the subsection says, 'employment of a kind specified in the application'. The words 'employment of the kind' in subs.241(3) mean, as the subsection goes on to read, 'employment of the kind for which the worker applies for reinstatement'. As the Full Bench held in Cansino, the words 'employment of the kind for which the worker applies for reinstatement' mean 'a particular and identifiable form of employment which the worker must specify when making the initial application'.
4. In subs.242(1), 'employment of the kind' means, as the subsection goes on to read, 'employment of the kind for which the worker has so applied for reinstatement', meaning, necessarily, so applied to the employer.
5. Subsection 243(2) again uses the phrase 'employment of the kind for which the worker has so applied,' meaning in this case applied to the Commission.
6. Importantly, where in subs.243(3)(a) the Commission is empowered to order reinstatement, that is expressly to a specific form of employment; to employment of a kind for which the worker is fit, and also of a kind that is available but that is less advantageous to the worker. Where, by subs.243(3)(b), the Commission is empowered to order reinstatement, that is to employment of a kind for which the worker is fit and also of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation).
7. In each of the above statutory provisions the words 'employment of a kind' or 'of the kind' wherever they appear mean, as the Full Bench held in Cansino, a particular and identifiable form of employment. The words 'employment of a kind' have no meaning beyond or other than that.
8. So much is apparent when it is seen that each of the orders 1, 2 and 3 sought on the applicant's behalf is unaffected in its meaning and effect when the words 'of a kind' are removed.
9. So far as the decisions of Cambridge C in Tiney v Sydney West Area Health Service [2009] NSWIRComm 1045 and Hofman v Penford Australia Limited [2008] NSWIRComm 1026, referred to by the Applicant, say that the Commission is not restricted, in considering employment of the kinds specified in the WC Act and set out above, to reinstatement to specific positions, those decisions are, with respect, correct. I do not read either decision to say anything contrary to what the Full Bench held in Cansino or different to the analysis I have set out above.

Application of the facts to the law

1. The application made to the employer and to the Commission primarily sought that Ms Cox be reinstated to work as an AIN Team Leader, unsurprisingly, given that that was her pre-injury role and a role in which she had worked for many years. The application to the Commission sought in the alternative employment as a Recreational Activities Officer. ('RAO')
2. There was insufficient evidence to allow it to be determined whether employment as an RAO was or was not no less advantageous to the worker, but in the absence of any express submission from either party against this position, I proceed on the basis that employment as an RAO would be no less advantageous to the worker than the pre-injury employment.
3. On the evidence, the respondent employer has work of an AIN Team Leader available. As the applicant correctly submitted, the question is not whether there is a vacant position. 'Available' does not mean 'vacant': Public Service Association and Professional Officers Association Amalgamated Union of NSW (on behalf of Peter Riley) v Workcover Authority of NSW [2006] NSWIRComm 108. On the evidence of Ms Ormond, the respondent still requires work of the nature performed by an AIN Team Leader to be performed, and it is performed. It is therefore available within the meaning of the WC Act.
4. Equally, the employer does require the work of the Recreational Activities Officer to be performed; although Ms Ormond's evidence was that there were no positions as an RAO available, that is, as I say, not the test; the work is available.
5. From this it follows that there is no basis on which the Commission can turn to its powers under subs.243(3) of the WC Act, that is, to consider ordering reinstatement to employment of a kind that is available but that is less advantageous to the worker, or employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation).
6. That is because, as the Full bench in Cansino made abundantly clear, the Commission's powers under s.243 are only enlivened where the employer does not have available employment of the kind sought: Cansino loc cit at 13, para [14].
7. The only orders which are potentially open to the Commission in this matter are orders it is empowered to make pursuant to subs.243(2).
8. That is, the Commission may order reinstatement to the employment of the kind for which the applicant has applied to the Commission - that is, as an AIN Team Leader - or any other kind of employment that is no less advantageous to the worker, here including employment as an RAO, provided that the Commission must be satisfied that the worker is fit for the kind of employment to which it orders reinstatement. That satisfaction must necessarily be arrived at on medical evidence: Cansino loc cit at 13, para [16].
9. The Commission is certainly not limited in its discretion to make orders of reinstatement only to the kinds of work sought in an application. However, no other employment that was no less advantageous to the worker was identified in the proceedings than the employment as an AIN Team Leader and as an RAO.
10. The sort of work to which reinstatement was sought in Order 3 was so vague and imprecise as to be impossible of identification or application. But even were that not so, such piecemeal work could only be considered pursuant to the Commission's powers under subs.243(3).

Fitness for work

1. It is abundantly clear from the words of subsection 243(2) that the Commission may only order that a worker be reinstated under that subsection if the Commission is satisfied that the worker is fit for the kind of work to which they are reinstated.
2. The Commission's capacity to be satisfied as to an applicant's medical fitness for the kind of employment it is asked to order, or it may consider ordering, does not depend only on the certification provided with the original application to the employer. The Commission is to determine fitness on the evidence before it at the time that an order is sought: Terminals Pty Limited v NUW, NSW Branch (on behalf of Todd Bell) [2008] NSWIRComm 247 at [29].
3. In determining fitness for work, and specifically in the context of reinstating an injured worker, the Commission may properly assess that fitness by asking whether the worker is fit to carry out a 'timely, safe and durable return to work': Robinson v Commissioner of Police [2014] NSWIRComm 35 at [131].
4. It is amply clear on the evidence that the role of an AIN Team leader requires the performance of work associated with weight bearing, including supporting and from time to time lifting patients. Specifically, the role of an AIN Team Leader involves toileting, showering, dressing and repositioning residents, which on the evidence, including specifically Dr Loh's evidence, Ms Cox is not able to do. Indeed, on the evidence of Dr Loh given before the Commission, Ms Cox cannot lift more than 8 kg. She should not, on Dr Loh's evidence, carry out any act requiring her to bear the weight of a patient: tpt 10 Nov p 43.
5. Dr Loh gave evidence that Ms Cox had little ability to assist high-care patients: tpt 10 Nov p 19.43 ff. Ms Ormond's evidence was the proportion of high care residents in the facility had increased in the time since Ms Cox was dismissed and will continue to increase: Ormond statement paras 7-9; tpt 11 Nov p 169-170.
6. Dr Loh's evidence was that the medical restrictions he placed on Ms Cox significantly impeded her carrying out the full functions of an AIN, and that there was a significant risk of re-injury if Ms Cox were to carry out the full duties of an AIN: tpt 10 Nov pp11-15.
7. It is of course the case that Ms Cox had been employed as an AIN Team Leader for the ten months leading to her dismissal. She was not, however, carrying out all the inherent duties of an AIN Team Leader. That ten months' work was carried out under a return to work plan that involved modified duties. In turn, on the express and unchallenged evidence of Ms Ormond, that plan in operation involved placing other staff under greater physical obligations in order to permit Ms Cox to work without carrying out all the duties actually required of someone in her role. The fact that such a trial was attempted and indeed maintained for as long as ten months does not mean that Ms Cox is fit for reinstatement to an AIN role. Indeed, her position did not on the medical evidence improve during that time, and on Dr Loh's evidence to the Commission her condition remains unchanged.
8. On the medical evidence, Ms Cox is not fit to carry out the duties of an AIN Team Leader. Not only could she not carry out a 'timely, safe and durable return to work,' she is not fit to begin to do the inherent requirements of the work, on the medical evidence before the Commission from her treating doctor.
9. Neither is Ms Cox fit to carry out the duties of a Recreational Activities Officer. That job is physically more demanding than an AIN Team leader role: Ormond statement paras 87-96. The functional assessment of Ms Cox carried out by Ms Moretti in April 2014 indicated that there were a number of functions that Ms Cox could not carry out unaided, including toileting, showering, and mobilising residents via wheelchairs. Further, Ms Cox could not carry out all the tasks required of an RAO in an emergency situation.
10. On the evidence, no other work was identified that the respondent has available to which Ms Cox could be reinstated that is not less advantageous to her. As I say above, the Commission has no power in this case to consider work that is less advantageous to Ms Cox than the work for which she has applied.
11. As will be apparent form the form of order that the applicant proposed, it was the contention of the applicant that the Commission could order reinstatement to work for which a worker is not fit by ordering reinstatement to the employment for which the worker applied, or employment no less advantageous to the worker than that work, on a basis limited by medical restrictions, that is, carrying out less - in this case significantly less - than the inherent requirements of the work. That is not what the statutory scheme permits.
12. Section 243(2) of the WC Act, which for the reasons I give above is the only functional subsection invoked here, cannot be read to give such a power. Indeed, to reinstate an employer under s.243(2) to a position for which the worker is not fully fit would be flatly contrary to the express provisions of the subsection, which place an absolute requirement on the Commission to be satisfied that the worker is fit for the work to which they are reinstated. A worker who cannot carry out a part of the inherent requirements of the work for which they have made application for reinstatement is not fit, within the meaning of subs.243(2), for reinstatement for the work for which they have applied.
13. Under the scheme of the WC Act, it is only pursuant to s.243(3) that the Commission has powers to order reinstatement to work in the case of a worker who has limitations on their fitness. Pursuant to subs.243(3)(b), in express contrast to subs.243(2), the Commission may identify tasks that a worker in those circumstances can perform that are within the employer's avail: Cansino 14 at (20). As I say above, subsection 243(3) is not enlivened in these proceedings.
14. The applicant contended that there were authorities supporting the Commission reinstating a worker subject to medical limitations. I turn to them individually below, but in sum, none of the authorities cited give a basis for reinstatement of a worker under subs.243(2) pursuant to medical restrictions that prevent them undertaking inherent requirements of the work.
15. The cases relevantly called in aid were Terminals Pty Limited v NUW loc cit; Anderson v Northern Co-operative Meat Company Pty Ltd (Ncmc - Butchering Pty Ltd) [2008] NSWIRComm 247; Chau v Visy Board Pty Ltd [2012] NSWIRComm 101; and IGA Distribution Pty Ltd and Moses (No 2) (2002) 114 IR 307.
16. In Terminals Pty Limited, the Full Bench held (at [35]) that the reinstatement ordered by the commissioner at first instance, while it appeared to be subject to a medical restriction, was in fact to the full inherent requirements of the job, without impediment. It was only in this sense, the Full Bench held, that it was open to the Commissioner at first instance to make the order made under s.242(2).
17. In Chau, Boland J having determined to exercise the discretion to reinstate an injured worker, expressed the view that an applicant might be able to be reinstated under s.243(2) with a restriction that he not lift more than 20kg, on the basis that it had not been shown that it was an inherent part of the work to lift more than 20kg (at [43]), but then held that if he were wrong about the availability of s.243(2), the order could be made (on the facts of that case) under s.243(3). That second course is not available here.
18. Anderson and Moses are cases determined under s.84 of the Act where the provisions of the WC Act were not applicable, so that there was no statutory requirement for fitness. They are not relevant to this case.
19. None of the authorities called in aid support any power residing in the Commission to reinstate under subs.243(2) a worker who is not medically able to carry out the requirements of the work, in whole or in part. That is not at all surprising, as to be empowered to do so would be wholly contrary to the express statutory injunction that the Commission must be satisfied that the worker is fit. The word 'fit' is not qualified in any way to suggest that partial fitness will meet the statutory requirement.
20. It follows from what I have set out above that, given the medical evidence, the Commission has no power to grant the application. Ms Cox is not fit for the work to which she has applied for reinstatement and which the employer has available.

Discretionary issues

1. But even without that, the application should in any event be refused. As the Full Bench in Cansino emphasised, an order for reinstatement is discretionary, even if the statutory preconditions are met, and the WC Act is not at all to be read as imposing any requirement on the Commission to make such an order: Cansino loc cit at 13, para [12].
2. There are two matters which weigh against the discretion being exercised to reinstate Ms Cox, even if that were possible at law.
3. The first is the evidence of Ms Ormond, that while Ms Cox did work as an AIN Team Leader under restrictions, other employees were required to shoulder a heavier physical burden to cover for Ms Cox's restrictions. The Commission would not make an order of reinstatement knowing that to be its result. I observe that that was not what was done in Terminals Ltd; there, the view was formed that the distribution of work already existing in the workplace would accommodate the worker's restriction without any imposition on another employee.
4. The second discretionary issue is even more significant. On the medical evidence brought in her own case by her treating doctor, Ms Cox could not lift or position a resident who required CPR, and, given a weight-lifting restriction of 8 kg, could not carry out a number of physical acts that might be required if she were the first person on hand in an emergency situation involving a resident. Knowingly to make an order which meant that frail, elderly residents of an institution such as the respondent were exposed to the risk of less than optimal attention in an emergency situation is something the Commission would not do.
5. Even if I be entirely wrong in the analysis of the law set out above, and power does lie in the Commission to reinstate in this case, I determine the case on an entirely discrete basis, as an exercise of discretion, against the application. On a careful weighing of the evidence, I find that it would be an improper use of the Commission's discretion to reinstate Ms Cox to work where her medical restrictions, which on her own treating doctor's evidence would prevent her providing direct emergency assistance to residents in particular circumstances, would therefore put residents at risk. It does not matter that the circumstances in which residents would be put at risk might not occur every day, or every week; there is a clear potential for those circumstances to occur, on the evidence.
6. Further, it would be an improper use of the Commission's discretion to make an order that imposed an additional physical burden on other employees, with the concomitant risk to their health and safety, to cover for an employee with restrictions.
7. Of course in exercising that discretion I have had regard to Ms Cox's long work history as an AIN and her express desire to work in this field, albeit for two days a week. In so doing, I have also had regard to Dr Loh's express evidence that there are many other roles within society that Ms Cox can perform without difficulty: tpt 10 Nov p 44 14-28.

Disposition of the matter

1. The application must be refused as a matter of law and ought to be refused as a matter of discretion. Either basis is sufficient to determine the matter. On each basis set out above, the order that the Commission should make is that the application be dismissed, and I so order.

Orders

1. The Order that I make is as follows:
2. The application is dismissed. PETER NEWALL Commissioner 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: 13 February 2015