Potter v Industrial Relations Secretary in respect of the Department of Regional New South Wales

Industrial Relations Commission (NSW)|2021-10-20

Ms Louise Potter (applicant) Industrial Relations Secretary (respondent) Representation: Counsel: L Doust (for the applicant) S Meehan (for the respondent) Solicitors: WorkLawyers (for the applicant) Lander & Rogers (for the respondent) File Number(s): 2020/288829 & 2021/15957 Publication restriction: Nil

decision

On 7 October 2020, Ms Louise Potter (the applicant) filed an unfair dismissal application pursuant to s 84 of the Industrial Relations Act 1996 (NSW) (the IR Act) (the unfair dismissal matter) in respect of her dismissal from the role of Coordination Officer in the Department of Regional New South Wales.
On 19 January 2021, after a failed attempt to conciliate the unfair dismissal matter, the applicant filed a separate application pursuant to s 242 of the Workers Compensation Act 1987 (NSW) (the WC Act) (the injured worker reinstatement matter) and it was decided that both applications would be considered and determined together.

Background

The applicant is a woman in her mid-fifties. She worked as a Coordination Officer from March 2016 to 17 September 2020 on a temporary, and then ongoing basis. The applicant's role supported the coordination of centralised policy across State Government to broker outcomes and deliver programs and services to rural and regional communities in respect of a range of issues, including domestic violence and youth unemployment.
Due to machinery of government changes, the applicant was initially employed during this period within the Department of Premier & Cabinet and the Department of Planning, Industry and Environment. From 1 April 2020, the applicant performed her role within the Department of Regional New South Wales (rather than the Department of Premier & Cabinet). The change of Department did not affect the applicant's role.
Prior to March 2016, the applicant had worked as a public servant for the State of New South Wales, including in a temporary role from 3 March 2014 to 31 October 2015. Her service to the State initially commenced in 1986 as a Trainee Property Valuer and she worked in various other roles including as a Valuer, Senior Valuer and Business Development Officer. In or around 2012, her employment ended by way of a voluntary redundancy after 26 years of service. At the time of her dismissal, the applicant had over 30 years total service to the State, albeit not continuous.
In about mid-2018, Ms Potter commenced reporting to Ms Tanya Latanville, who was appointed to the role of Deputy Director, Regional Coordination.
In these proceedings, the applicant alleged inappropriate conduct including bullying behavior on the part of her managers Ms Latanville and Ms Katherine Emerton, who was a Senior Coordinator Officer during the relevant period, stating that this was the cause of an illness she sustained on 3 September 2019, namely, "Adjustment disorder with mixed depression and anxious Mood." The respondent led evidence from those managers to the effect that they acted to manage, guide, and improve the applicant's work performance, as part of undertaking their roles, and did not engage in the bullying or other inappropriate conduct alleged by the applicant.
Ms Latanville gave evidence to the effect that when she came into her role supervising the applicant, she observed that the applicant was principally engaged in the progression of the Career Pathways project which had been "going on for approximately 18 months and had not yet achieved agreement on anything tangible that could be delivered." She further deposed that the applicant was managing the project without senior level support, had received limited oversight, was being given little chance to develop her written communications skills, and improve her capacity to plan and prioritise competing tasks.
In November and December 2018, the applicant participated in performance review meetings with Ms Latanville. The applicant has accused Ms Latanville of conducting herself inappropriately during those meetings. Ms Latanville denies those accusations. The applicant's mid-year review (July-December 2018) rated the applicant's overall performance as "Partially Meeting" expectations. She was rated as "Achieving" in the areas of "Personal Attributes", and "Business Enablers", and "Partially Meeting" in the areas of "Relationships" and "Progressing". Suffice to say, the applicant has not accepted those ratings as a fair and accurate representation of her performance during the relevant period in these proceedings. The applicant led evidence that there had been no issue with respect to her performance prior to being managed by Ms Latanville.
During early 2019, the applicant was engaged in a weekly meeting with Ms Latanville to discuss the progress of her work and priorities. For about 6 weeks between the end of April and early June 2019, the applicant was supervised directly by Ms Emerton, acting in Ms Latanville's role whilst she was on leave. Ms Emerton's substantive role as Senior Coordination Officer, was classified at a higher grade than the applicant's position.
On or about 31 July 2019, the applicant commenced a period of annual leave. The applicant did not return to the workplace after this date, taking various forms of leave including paid and unpaid sick leave and recreational leave.
On 10 September 2019, the applicant sent an email to the Secretary, Department of Regional New South Wales, Jim Betts (the Betts email). In the Betts email, the applicant expressed that she was writing in response to his open invitation for Department employees to raise any issues they were experiencing that were of concern with him directly. In the email, the applicant stated: "…In my role I am subjected to persistent criticism from my Deputy Director line manager, something that I have never encountered in my career to date. This criticism has manifest through her use of various leadership methods to share negative performance feedback, apply different criteria/approach/style/expectations to me compared to other staff members (outside of role scope), and display versions of 'gaslighting' that undermine my ability to effectively operate as required over the past 14 months. The result of this is that I am constantly hypervigilant, and find myself trying to second guess my manager's oversight of my work. This has inevitably led me to become increasingly anxious at work and home, and to suffer significant ongoing sleep deprivation. I dread coming to work and it has interfered with my concentration whilst at work. I now realise that the effects of the situation are such that I no longer feel able to be myself in my professional life, and my personal life has been impacted. This situation has reached breaking point. It is not an option for me to address these issues through conversation or mediation with my manager, or with an external mediator as I feel the problems are likely to be papered over. My equal concern is that following such an exercise, I will suffer further consequences that are certain to crush me and destroy my career. On a previous occasion I asked my Regional Director's advice about a specific area of negative performance feedback from my line manager, however (in my opinion) I felt it was brushed aside. Over the last eight months I have deliberated at length about whether to make a formal complaint. Although I feel I have sufficient evidence to support my claims, (including separate comments made by colleagues in the Coffs Harbour office, observed from my manager's behaviour toward me) I have been extremely hesitant to go down this path. I am aware that from an individual standpoint, as a Grade 7/8, I would be required to demonstrate grounds to the managerial hierarchy within the department that justify this complaint. I have been worried that I will not be able to access a just resolution to this matter as those individuals with higher authority in the management structure do not have day to day personal exposure to my manager's behaviour. Consequently, my task would require me to overturn management's existing perspective obtained from outside our office, and replace it with my viewpoint. Hence, I desperately seek your assistance with this matter. …. My primary objective at this stage is to be moved from my current role and workplace, and to avoid a formal investigation for reasons mentioned above. Accordingly, I write to request a confidential meeting with you to discuss an opportunity for my transfer to another agency. If either of these are not possible, I will give further consideration to my options."
The Secretary, Mr Betts responded to the email on the same day and asked the applicant if she was comfortable with her concerns being forwarded to the Deputy Secretary, People, Performance and Culture, Ms Sally Friedlander.
On 29 September 2019, the applicant met with Ms Friedlander, and Mr Daniel Rumbold, Director, HR Business Partners in Pitt Street, Sydney to discuss the content of the Betts email. The applicant was accompanied by her brother as a support person. During that meeting, the applicant: 1. outlined her concerns with respect to Ms Latanville's treatment of her, which she perceived as bullying; 2. indicated that she was unwell as a result of the treatment of her by Ms Latanville; 3. indicated that she did not want any formal process to address the issues; and 4. expressed that she wanted a new job.
The applicant remained on leave and Mr Rumbold kept in contact with her, by phone and email. Mr Rumbold helped the applicant with respect to the logistics around her leave, including the recrediting of sick leave that she lost when she took a voluntary redundancy in 2012. Mr Rumbold also gave evidence that he assisted the applicant by: 1. forwarding information from the intranet about resolving people issues, including through mediation and about handling grievances; 2. providing links to positions he thought the applicant might be interested in applying for; and 3. speaking to the applicant about her options in the circumstances, including that she may consider lodging a workers compensation claim for her illness.
On 18 October 2019, Mr Rumbold spoke with the applicant via telephone. The applicant informed him that her doctor had given her a medical certificate until 28 November 2019. At this stage, the applicant had not provided medical evidence that indicated her diagnosis or prognosis. Mr Rumbold informed the applicant that the Department would need this information if the applicant was to remain on leave.
On 21 October 2019, the applicant again wrote to Mr Jim Betts requesting a confidential meeting in person with him (the Second Betts email). In the Second Betts email, the applicant re-asserted her request for a direct transfer to a comparable role working from Coffs Harbour, in a different office and out of her current position. She also indicated that the options provided to her by Mr Rumbold, such as mediation and/or lodging a grievance were avenues she had considered and deemed not suitable to her.
On 24 October 2019, the management of the applicant's absence and illness was referred from Mr Rumbold to Ms Amanda Fahy, Health & Wellbeing Partner by way of a Non-Work-Related Injury Management Referral document.
On or about 25 October 2019, the applicant lodged a workers compensation claim (the applicant's Workers Compensation claim). As it is relevant to these proceedings, I have set out some details of the applicant's Workers Compensation claim separately below at [45]- [46].
On 30 October 2019, the applicant provided medical evidence of her diagnosis, albeit relating to the period 3 September 2019 to 29 November 2019. The certificate indicated that she was suffering from, "adjustment disorder with mixed depressed and anxious Mood".
On 1 November 2019, the applicant informed the respondent of her intention to lodge a workers compensation claim in respect of her injury and accordingly her case was referred to the Injury Management Team who manage such claims within the respondent.
On 16 December 2019, the applicant's Workers Compensation claim was declined by the respondent's insurer, Allianz.
On 14 February 2020, because the applicant's Workers Compensation claim had been declined, the applicant's file was referred to Ms Fahy for management.
On 1 April 2020, the applicant attended an appointment at the direction of the respondent for an independent medical examination to be conducted by Dr Frank Chow, Consultant Psychiatrist. On 15 April 2020, Dr Chow delivered his report, which concluded that the applicant (Dr Chow report): 1. had a medical condition, being "adjustment disorder"; 2. was not fit for any work at the time of assessment; and 3. needed to engage in treatment over the following three months, after which the applicant should engage with returning to work, commencing with two days per week.
On 2 July 2020, the applicant informed Ms Fahy that she had commenced proceedings in the Workers Compensation Commission, meaning she was disputing the insurer's decision to decline her claim.
The applicant was not fit to return to work as anticipated by Dr Chow, by mid- July 2020.
On 30 July 2020, the respondent received a completed questionnaire from Dr Lloyd Mayson, the applicant's treating Doctor (Dr Mayson's letter). Dr Mayson indicated at that time that the applicant was not medically cleared to return to her substantive role in a graduated return to work capacity. He wrote that this was "due to failure of addressing the direct line management that resulted in her illness - 'adjustment disorder with mixed mood' her condition is slow to resolve." Dr Mayson selected the option of "short term 0-12 weeks" for the estimated time until the applicant would become fit to resume her full role.
On or about 25 August 2020, Dr Anat Hassner, Chief People Officer sent a letter notifying the applicant of the respondent's intention to dismiss her and providing her with an opportunity to respond.
On 9 September 2020, the Public Service Association of NSW (PSA) responded to the show cause letter on behalf of the applicant. In short, the letter submitted that the applicant should not be terminated for reasons including: 1. That it would be premature to terminate the applicant. 2. The reasons for the termination are unable to be substantiated. 3. The respondent has a duty to broker suitable duties and reasonable adjustments as well as other supports for the applicant and this had not occurred. 4. The applicant's condition is not permanent and it likely to resolve in the short term according to the medical evidence. 5. The matter should be treated as work-related, not non-work related. 6. The applicant's Workers Compensation claim was on foot with further conciliation to occur on 15 September 2020. 7. The respondent has a responsibility while the Workers Compensation matter remains outstanding to consider reasonable adjustments pursuant to s 49 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIMWC Act). 8. The applicant had not been given adequate support to recover and search for alternative roles. 9. The respondent had not complied with the recommendations of Dr Chow to "engage with HR to gain agreement to return to work in an alternative team under different line management". 10. There had been no graduated return to work plan offered to the applicant. 11. The applicant's complaints about her managers had not been satisfactorily investigated. 12. A rehabilitation provider was not offered, and injury management plan not developed in respect to the applicant.
Dr Hassner occupied a senior role within the Department at the time she made the decision to terminate the applicant's employment and relied upon the advice of others with relevant expertise within the organisation in making her decision.
Dr Hassner gave evidence that: 1. She always ensured that she understood the legislative basis upon which she was able to make a decision involving a person's employment before she did so. 2. With respect to the applicant, she had formed the view based on the information she had before her that it was appropriate to terminate the applicant's employment because: 1. The respondent did not have obligations pursuant to the WC Act because Ms Potter's Worker's Compensation claim had been denied by Allianz. Accordingly, she gave evidence that the applicant's injury was not to be treated as a work related injury; 2. She had been absent from the workforce for a significant period of time; 3. Attempts had been made through the Department's processes to try to assist her in finding alternative employment and those had not been successful; and 4. Based on the information she had, believed that on the balance of probabilities the applicant would not be returned to work successfully.
The response to the show cause letter sent by the PSA did not change her views. Although Dr Hassner gave evidence that she did not recall if she saw Dr Mayson's letter before she made her decision, she gave evidence to the effect that it would not have made a difference to her decision if she had received it as she believed that attempts had been made to find opportunities for the applicant and that these had not been successful: Tcpt, 19 October 2021, p 51 (13)-(18).
On 17 September 2020 the applicant was dismissed pursuant to subs 47(1)(d) of the GSE Act which provides that: "The head of a Public Service agency may, by instrument in writing, terminate the employment of a Public Service non-executive employee of the agency on any of the following grounds if the employment is ongoing employment … (d) the employee is unable to perform the duties of the role assigned to the employee because of physical or mental incapacity.
The reason stated to the applicant for the dismissal was, "because you are unable to perform the duties of your role as a Coordination Officer, due to your illness".
There is no dispute that, at the time of her dismissal, the applicant was in fact unable to perform the duties of her role due to her illness. The date on which the applicant was dismissed was within a period covered by a medical certificate stating she had no current work capacity for any employment. It was also within the period in respect of which the applicant claimed benefits under section 37 of the WC Act as an "an injured worker who has no current work capacity".
At the time of her dismissal, the issue as to whether the applicant was entitled to compensation under the WC Act in respect of the illness sustained on 3 September 2019 remained outstanding.
As the Workers Compensation Commission proceedings were ongoing in respect of the issue of disputed liability the applicant was not, at the time of her dismissal, in receipt of workers compensation benefits and had not been in receipt of workers compensation benefits at any time from 3 September 2019.
On 9 December 2020 (about 9 weeks after her dismissal), liability in respect of the applicant's Workers Compensation claim was determined in her favour by way of Consent Orders: see [46].
On 18 December 2020, the applicant wrote to the respondent (addressed to Dr Hassner), applying for reinstatement as contemplated in s 241 of the WC Act. She enclosed a 'Certificate of Capacity' dated 11 November 2020 signed by Dr Mayson (in respect of the period 31 October 2020 to 30 January 2021), and a medical certificate dated 17 December 2020 from Dr Mayson stating that "she is fit for all normal duties with the recommendation there is an alternative direct line of Management arranged."
Her application to Dr Hassner was for reinstatement to "a mutually suitable position consistent with her previous grade and skill set."
By letter dated 13 January 2021, the respondent rejected the applicant's request for reinstatement.
The applicant has made a claim of issue estoppel in these proceedings arising out of Consent Orders made by the Workers Compensation Commission in respect of her illness. Accordingly, it is necessary to detail some background relating to the applicant's Workers Compensation claim.
The parties helpfully filed an agreed statement of facts in respect of the applicant's Workers Compensation matter (ASOF), which provided the context within which the Consent Orders were made. The main points to be derived from the ASOF are that: 1. the applicant disputed the respondent's decision to decline liability in respect of her injury pursuant to s 11A of the WC Act; and 2. during the course of the proceedings and prior to the determination of the merits of the applicant's appeal by the Workers Compensation Commission, the parties conferred and agreed to settle the matter, which resulted in the Consent Orders being made.
On 9 December 2020, the Workers Compensation Commission issued a Certificate of Determination - Consent Orders (Consent Orders) in the following terms in respect of the applicant's Workers Compensation claim: 1. The Respondent to pay Ms Potter $1,957.97 per week from 3 September 2019 to 3 December 2019 pursuant to section 36 of the Workers Compensation Act 1987; 2. The Respondent to pay Ms Potter $1,648.82 per week from 4 December 2019 to 24 December 2020, pursuant to section 37 of the Workers Compensation Act 1987; 3. There otherwise be an award in favour of the Respondent with respect to the claim for weekly compensation; 4. An order that the ARD be amended to include a claim for treatment expenses pursuant to s 60 of the Workers Compensation Act 1987; 5. An order that the Respondent agrees to pay reasonably necessary treatment expenses incurred up to 24 November 2020, to the sum of $12,000; and 6. A notation that Ms Potter acknowledges that she has suffered from no incapacity as a result of the illness since 25 November 2020.

The applicant's evidence

The applicant relied upon two witness statements filed on 5 May 2021 (Ex A1) (the applicant's statement); and 23 July 2021(Ex A2) (the applicant's statement in reply). The applicant was cross-examined in the proceedings.
The applicant also relied upon a statement of Ms Katherine Emerton dated 29 November 2019 made in an investigation conducted by the respondent's insurer in the applicant's Workers Compensation claim: (Ex A5) (Ms Emerton's workers compensation statement).
In addition, the applicant relied upon a great volume of documentary evidence in the proceedings which I have referred to and relied upon as required in this decision.

The respondent's evidence

The respondent relied upon the following written statements in the proceedings: 1. Statement of Ms Katherine Emerton filed 22 June 2021 (Ex R1). Ms Emerton was a Senior Coordinator Officer working in the Coffs Harbour Office within the applicant's team immediately prior to the applicant's dismissal. 2. Statement of Ms Louise McMeeking filed 22 June 2021 (Ex R2). Ms McMeeking was the Director of North Coast within the respondent immediately prior to the applicant's dismissal. She was the applicant's manager twice removed and Ms Latanville's direct manager. 3. Statement of Mr Daniel Rumbold filed 22 June 2021 (Ex R3). Mr Rumbold is the Director, HR Business Partners and is responsible for business partnering on all Human Resource related matters within the respondent. Mr Rumbold was involved in the management of the applicant's employment while she was on leave, including the direct follow up in respect of the Betts email. 4. Statement of Ms Tanya Latanville filed on 22 June 2021 (Ex R4). Ms Latanville was the Deputy Director, Regional Coordination, and the applicant's manager immediately prior to the applicant's dismissal. 5. Statement of Ms Amanda Fahy filed 22 June 2021 (Ex R5). Ms Fahy is the Health & Wellbeing Partner with responsibility for managing the return to work of employees who are absent from work with non-work-related non-compensable injuries or illnesses. Ms Fahy had carriage of the applicant's case on behalf of the respondent. She also provided information and advice to the decision maker, Dr Hassner in respect of the termination of the applicant's employment. 6. Statement of Dr Anat Hassner filed 22 June 2021 (Ex R8). Dr Hassner was the Chief People Officer of the respondent and the decision maker with respect to the dismissal of the applicant. 7. Statement of Ms Kyleah Hayes filed 22 June 2021 (Ex R6). Ms Hayes was the Director, Human Resources and Manager Health & Wellbeing during the period the applicant's illness was being managed by the respondent. 8. Statement of Ms Fiona King filed 29 September 2021 (Ex R7). Ms King is a solicitor and Partner at Moray & Agnew Lawyers. Ms King gave evidence with respect to the applicant's Workers Compensation proceedings.
In summary, Ms McMeeking, Ms Latanville and Ms Emerton were the applicant's work colleagues prior to her becoming unwell.
Mr Rumbold, Ms Fahy and Mr Hayes were involved in managing the applicant's circumstances after she became unwell, while Dr Hassner was the decision maker with respect to the termination of the applicant's employment.
It is convenient to consider the injured worker application first.

Consideration of the injured worker reinstatement matter

As set out above at [41]- [43], the applicant made application to the respondent to be reinstated on 18 December 2020 which was rejected by the respondent on 13 January 2021.
In the injured worker reinstatement matter, the applicant seeks reinstatement, re-employment and/or compensation pursuant to subss 241(2) or (3) of the WC Act.
The respondent submitted that the Commission does not have jurisdiction to make an order pursuant to the injured workers provisions, because the applicant's Workers Compensation claim had not been accepted at the time of her termination and it could not therefore have been a reason for her dismissal: [80] of Respondent's Submissions filed 15 December 2021 (RS) (the jurisdictional argument). The respondent contended that if the Commission disagreed with that proposition, in any event, it would not, as a matter of discretion, make an order for the reinstatement of the applicant pursuant to Pt 8 of the WC Act.
It is convenient to set out the relevant aspects of Pt 8 of the WC Act and principles applying to those provisions now.
Part 8 of the WC Act relevantly provides as follows: Part 8 Protection of injured workers from dismissal 240 Definitions (cf IR Act, s 91) (1) In this Part: … reinstatement includes re-employment. … (2) For the purposes of this Part, an injured worker is a worker who receives an injury for which the worker is entitled to receive compensation under this Act or the Workers' Compensation (Dust Diseases) Act 1942. … 241 Application to employer for reinstatement of dismissed injured worker (cf IR Act, s 92) (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. … 242 Application to Industrial Relations Commission for reinstatement order if employer does not reinstate (cf IR Act, s 93) (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 (cf IR Act, s 94) (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. 244 Presumption as to reason for dismissal (cf IR Act, s 95) (1) In proceedings for a reinstatement order under this Part it is to be presumed that the injured worker 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 Industrial Relations Commission that the injury was not a substantial and operative cause of the dismissal of the worker. …
Further and relevant to the jurisdictional argument, s 4 of the WC Act provides: "4 Definition of "injury" (cf former s 6 (1)) In this Act - injury - (a) means personal injury arising out of or in the course of employment, …
Part 8 was inserted into the WC Act by the Industrial Relations Further Amendment Act 2006 (NSW), which commenced on 1 December 2006. Immediately prior to that commencement, relevantly identical provisions to those in Pt 8 were contained in Ch 2 Pt 7 (ss 91-100) of the IR Act as then in force. That Chapter of the IR Act was repealed by the amending legislation.
The history of the provisions is set out in Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355; 130 IR 1. In that case, in the context of what was then Ch 2 Pt 7 of the IR Act, the Full Bench summarised (at 130 IR 1, pp 11-14) the operation of the provisions. While not reproducing the whole passage, it is useful to note the following observations of the Full Bench for the purposes of this matter (adding in square parentheses and italics references to the equivalent provisions in the WC Act): "(2) The employment of such a person must have been terminated by the employer 'because' (that is, for the reason that) the person was not fit for employment and such unfitness for employment must in turn have resulted from the relevant injury: s 92(1) [s 241(1)]. A person is the 'employer', and hence liable to meet an order for reinstatement, only if the injury arose (either wholly or partly) out of or in the course of employment with that person: s 91(2) [s 240(3)]. … (5) Prima facie, the word 'reinstatement' imports a notion of becoming re-employed in the work which the person was undertaking at the time of termination of employment: see the discussion of the concept in Deltec International Courier Pty Limited v. Transport Workers' Union of Australia, New South Wales Branch [1993] 50 IR341 at 350-354; in any event, s 91(3) [s. 240(1)] defines 'reinstatement' to include 're-employment'. But, such a notion is displaced because the reinstatement is said to be available to employment of a kind specified in the application which, necessarily, imports the possibility of employment to something other than the precise pre-dismissal employment. … (7) It is necessary for the person to 'produce' (that is, show) to the former employer a certificate from a medical practitioner. The effect of the certificate, that is its general thrust, must be that the employee is fit to undertake the work as described by the employee when making application for reinstatement: s 92(3) [s 241(3)]. … (12) Whether and to what extent any such order is made under s 94 [s 243] 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'. (13) If the Commission is satisfied it is appropriate to make an order under s 94(2) [s 243(2)], the discretion reposes in the Commission as to which of the alternative courses it should adopt. In exercising discretion it would be necessary to do so on the evidence put before the Commission by the parties. … (16) A determination of fitness for employment as referred to in s 94(2) [s 243(2)] must necessarily be made on the basis of medical evidence. … (19) Section 94(3) [s 243(3)] creates two further alternative bases for the exercise of discretion, but in either case the Commission is required to find that the employee is fit for the alternative employment which is the subject of the order. Again, fitness would appropriately be determined by reference to relevant medical evidence."
Cansino was cited with approval by the Full Bench in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm 108.

The respondent's jurisdictional argument

In summary, the respondent argued that to make an application pursuant to s 241 of the WC Act, the applicant must be: 1. an "injured worker", within the meaning of that term as defined in subs 240(2); and 2. a worker who was dismissed because she was not fit for employment as a result of the injury received.
Section 4 of the WC Act defines "injury" as personal injury arising out of or in the course of employment. As set out above, subs 240(2) of the WC Act relevantly defines an "injured worker" as "a worker who receives an injury for which the worker is entitled to receive compensation under this Act…".
The parties agreed, and the Commission accepts that the applicant was an "injured worker" as defined by the WC Act when she made her application for reinstatement. The respondent argued that despite this, the applicant was not dismissed because she was not fit for employment as a result of "the injury" received, because at the time the decision was made to terminate her employment, her workers compensation claim had been declined and the injury was not compensable and therefore fell outside of the definition contained in subs 240(2).
The respondent referred to the High Court decision in Allianz Australia v GSF Australia [2005] HCA 26; (2005) 221 CLR 568. In that decision, McHugh J stated at [12]-[13]: "Except in rare cases, definitions are not intended to enact substantive rules of law. Their function is to aid the construction of those substantive enactments that contain the defined term or terms. Moreover, the meaning of the definition depends on the context and object of the substantive enactment. As I pointed out in Kelly v The Queen : '[T]he function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. … [O]nce … the definition applies, … the only proper … course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment. … [T]he true purpose of an interpretation or definition clause [is that it] shortens, but is part of, the text of the substantive enactment to which it applies.' In this case, therefore, the definition of 'injury' is to be read into and applied in respect of s 69(1) of the Act. When that is done, the sub-section, with that term defined, must be construed in the context in which it appears and in light of the objects of that Part and the Act as a whole."
The respondent submitted at [67]-[68] of RS: "If the definition of 'injured worker' is read into the substantive provision, s.241(1) reads as follows: 241(1) [If a worker who receives an injury, for which the worker is entitled to receive compensation under this Act or the Workers Compensation (Dust Diseases) Act 1942], 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. Having regard to the language, context and purpose of the provision, it is apparent that the reference in s.241(1) to 'injury received' is a reference to the injury in respect of which the worker has an entitlement to compensation under the WC Act. It follows that the phrase 'because he or she is not fit for employment as a result of the injury received' has a corresponding meaning. That is to say, the reference to 'injury received' in s.241(1) is to be understood as a reference to a compensable injury under the WC Act. The reference to 'the injury' in ss.241(2) also has a corresponding meaning."
Relying upon the decision in Bindaree Beef Pty Ltd v Riley (2013) 85 NSWLR 350; NSWCA CA 305 (Bindaree), the respondent submitted that subs 244(2) should not be approached as if it introduces an "objective test", quoting from Bathurst CJ at [52]: "The question in effect is why the employer dismissed the worker. That can only be considered in the context of the actual reasons for doing so."
The respondent concluded that the actual reasons of the decision maker must be taken into account, because they inform what the actual reasons of the respondent were, referring to Bindaree at [52], [54] and [5] per Bathurst CJ (Beazley P agreeing) and Schobbe v ANZ banking Group Limited [2017] NSWIRComm 1005 at [51].
It was not in dispute that at the time the applicant was dismissed, the decision maker, Dr Hassner understood that the applicant's Workers Compensation claim had been declined and that she did not have an entitlement to compensation under the workers compensation legislation in respect of her injury. The respondent contended that Dr Hassner acted on that belief, referencing the evidence she gave to that effect and submitting that the Commission should accept Dr Hassner's evidence that her actual reason for dismissing the applicant was not because she was not fit for employment as a result of an injury for which she was entitled to receive compensation under the WC Act.
Effectively the respondent argued that unless the compensable status of "the injury" is known by the employer at the time of the dismissal, it can't be the substantial or operative cause of the decision to terminate the worker and therefore the presumption in subs 244(1) must be rebutted.
The respondent's jurisdictional argument requires the Commission to apply the principles of statutory interpretation. The principles that apply to interpreting legislation have been well traversed. The process begins with a textual analysis of the words of the relevant provision being interpreted - that is, a consideration of the ordinary and grammatical meaning of the words of the text. However, that initial step may involve the construction of the words of a provision in question when read in the context of the statute as a whole: Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 at [26] and [88].
The determination of the purpose of a statute or a particular statutory provision may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, if appropriate, reference to extrinsic materials. Section 35 of the Interpretation Act 1987 (NSW) authorises the use of extrinsic material, such as explanatory memoranda and second reading speeches, in circumstances where it is necessary to confirm that the meaning of the provision is the ordinary meaning conveyed by its text.
Ordinarily, the legal meaning of a particular provision in a statute will correspond with the grammatical meaning, but this is not always so: Certain Lloyd's Underwriters v Cross at [25]. The interpretation best open on the text which achieves the purpose or object of the statute is to be preferred to each other interpretation (even if the purpose or object is not expressly stated in the text). This well settled approach to statutory construction, that it is the purpose of the legislation which must be identified and promoted when interpreting the operation of a statute, is reflected in s 33 of the Interpretation Act.
The goal in interpreting a statute is to give effect to the intention of the Parliament. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 the High Court observed (at p 408) that the modern approach to statutory interpretation: 1. insists that the "context" be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise; and 2. uses "context" in its widest sense to include such things as the existing state of the law and the mischief which one may discern the statute was intended to remedy.
An analysis of the legislation starts with consideration of the text itself. The text of subs 241(1) of the WC Act stipulates who has an entitlement to make an application for reinstatement, namely an "injured worker" who has been dismissed because he or she is not fit for employment as a result of "the injury received".
Subsection 244(1) provides for a rebuttable presumption that the "injured worker" was dismissed because they were not fit for employment as a result of "the injury received".
The respondent invites the Commission to import a definition into ss 241 of "the injury received" which is different to the plain text of the legislation, and inconsistent with the way in which the legislation defines "injury" at s 4.
The WC Act provides a definition of "injury" at s 4, being a personal injury sustained in the workplace. That definition does not narrow the types of injuries to those for which compensation is payable under the WC Act. Accordingly, adopting the approach in Allianz Australia v GSF Australia, and contrary to the submissions of the respondent above at [67], subs 241(1) of the WC Act should be construed as follows: "If [a worker who receives an injury for which the worker is entitled to receive compensation under this Act] is dismissed because he or she is not fit for employment as a result of the [personal injury arising out of or in the course of employment], the worker may apply to the employer for reinstatement to employment of a kind specified in the application."
Specifically, the respondent states that the reference to "the injury received" in subs 241(1) "must" be construed having regard to the definition of "injured worker" in that subsection. I can see no reason to read into the provision that the relevant injury sustained must be known to be compensable at the time of dismissal.
This interpretation of the legislation is consistent with the objects of Part 8 of the WC Act and its purpose generally. The purpose of Pt 8 of the WC Act was recently considered by Commissioner Sloan in the matter of Tawfils v Woollahra Municipal Council [2020] NSWIRComm 1007 at [23]-[32]. In short, the purpose of Pt 8 of the WC Act is to assist in the rehabilitation of injured workers. The interpretation urged by the respondent is inconsistent with that purpose.
The respondent's interpretation would exclude some injured workers from the benefit of the legislation whose injury is determined or agreed to be compensable after they are dismissed. This would be an unfair outcome and contrary to the objects of the WC Act. It is well established that in construing a statute, consideration must be given both to the purpose of the legislative scheme and the consequences of the giving a particular meaning to a provision: see Martinez v Park Trent Properties Group Pty Limited (No 2) [2016] NSWSC 1661 at [89]; and Public Employment Office, Department of Corrective Services v Sarolta Boda [2006] NSWIRComm 1 at [31]-[33] where a Full Bench of the Commission considered whether the construction of s 90 contended for would produce unfair, unjust or inequitable results in the context of beneficial legislation.
Further, the Court of Appeal considered an argument that the notion of "injured worker" is temporal in Public Service Association of and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary on behalf of the Department of Justice [2015] NSWCA 386. In rejecting the employer's argument in that matter that the "injured worker" was no longer entitled to compensation for the injury and therefore unable to bring an application for reinstatement pursuant to s 241 of the WC Act, Emmett AJA (with whom Ward JA agreed) stated (at [54]): "It is impossible to see any rationale for drawing the distinctions just outlined. The anomaly and arbitrariness, of course, disappears if the definition of 'injured worker' is understood as describing the type of injury that is the criterion for a worker becoming an 'injured worker', rather than its being understood as having a temporal operation in relation to the recovery of damages in respect of an injury that gave rise to an entitlement to compensation. If it did have such a temporal restriction, then, for example, a worker who had been injured but who had fully recovered, and who therefore was no longer entitled to compensation, would be precluded from applying to his or her former employer under s 241 for reinstatement. Yet that would appear to be the archetypal situation to which Pt 8 of the Compensation Act is directed."
He continued at [57]: "The relative, or adjectival, clause 'for which the worker is entitled to receive compensation' qualifies the kind of injury that is necessary for the worker to have received before falling within the definition. A worker who suffers an injury for which the worker was not entitled to compensation will not be an 'injured worker' for the purposes of Pt 8. However, once a worker falls within the definition, the worker does not cease to be an 'injured worker', for the purposes of Pt 8, simply because the worker has recovered damages in respect of the injuries that originally gave rise to that entitlement. That construction removes the anomalous arbitrariness described above and is not inconsistent with the scheme of the legislation."
The construction and approach of the Court of Appeal in considering whether an injured employee needs to be receiving compensation at the time they make their application, is instructive and affirmative of the conclusion I have reached in respect of the jurisdictional argument in these proceedings.
For these reasons, I have decided that the respondent has not rebutted the presumption in subs 244(1) that the injury was not a substantial and operative cause of the dismissal of the applicant. The fact that the respondent was not aware that the applicant's injury was compensable at that time, is irrelevant.
Although the applicant has standing to bring the application for reinstatement pursuant to the WC Act, it remains to be determined whether, as a matter of discretion, the Commission should make the orders sought by the applicant. I will now consider that question.

Should the Commission exercise its discretion to Order the reinstatement or re-employment of the applicant?

The respondent submitted that the Commission would not exercise its discretion to reinstate the applicant for four reasons. In summary, these reasons were: 1. The position that the applicant was employed in prior to her dismissal no longer exists. 2. There is a risk that if reinstated to a role in Coffs Harbour, the applicant will suffer further injury due to her "apparent propensity for decompensation in response to reasonable performance management". 3. There is no satisfactory basis for the Commission to conclude that there are positions outside the Department of Regional New South Wales that the applicant is appropriately qualified and experienced to perform, and which are vacant. 4. There is no basis upon which it could be concluded that the respondent's necessary confidence in the applicant's capacity to work harmoniously in a team environment and under management supervision could be restored, given "her preparedness to make unsubstantiated allegations about bullying and other inappropriate conduct."
The appellant submitted in response, and in summary (at [44]-[53] of Appellant's Submissions in Reply filed 24 December 2021): 1. The removal of the applicant's previous position is no impediment to the Commission exercising its discretion pursuant to s 243 of the WC Act, noting that there is no limit to the kind of employment for which a recovered worker may apply, save that it may not be more advantageous than their prior employment. The Commission's discretion is very broad and enables the Commission to require a role not presently in existence. 2. There is no evidence to support the respondent's submission that the applicant is a risk of further injury due to a propensity to decompensation and runs contrary to the respondent's own expert opinion of Dr Chow. 3. The respondent's submission that there is no satisfactory basis for the Commission to conclude that there are positions outside the Department that the applicant is appropriately qualified and experienced to perform, and which are vacant, is disingenuous and should be considered after "liability" issues have been determined. 4. The Commission would assume that there are roles within the New South Wales public service at the Grade 7/8 level available to the applicant to occupy and the respondent's approach to put the applicant to proof with respect to the availability of roles and the opposition to the production of relevant records is contrary to its duty under s 49 of the WIMWC Act to provide suitable employment.
Section 49 of the WIMWC Act is not relevant to the injured worker reinstatement matter, given it applies to injured workers who continue to be employed. Although the Commission has a broad discretion to make orders for the reinstatement of an injured worker, including to a role other than that which she occupied prior to her dismissal, the availability of such a role is relevant, though not necessarily determinative in the Commission's exercise of its discretion whether to make such an order. There is an obligation upon the respondent to take reasonable steps to consider available positions and assist the Commission to understand the process they have applied in doing so in proceedings such as these. However, for reasons that will become apparent, I have decided not to make directions for the respondent to file evidence in respect of the availability of suitable positions for the applicant.
I agree with the applicant's submission that there is an insufficient evidentiary basis for the Commission to conclude that the applicant has a propensity to decompensation in response to reasonable management action. However, the appropriateness of restoring the applicant as an employee of the respondent requires a closer consideration of the respondent's submissions that there has been a loss of the necessary confidence in the applicant's capacity to work harmoniously in a team environment and under management supervision, given "her preparedness to make unsubstantiated allegations about bullying and other inappropriate conduct".
The applicant made allegations that because of the conduct of Ms Emerton and Ms Latanville she felt "bullied, belittled, excluded, and subject to undue scrutiny and unfair criticism": [21] and pp 27-34 of the applicant's statement (pp 111-118 of the Court Book). These are the types of allegations, which if proven, would warrant serious workplace disciplinary outcomes against those managers. The language adopted by the applicant in her description of the conduct she alleged against Mr Latanville and Ms Emerton was strong, such as accusing Ms Latanville of: 1. stonewalling, 2. exclusion, 3. gaslighting, 4. overt and demeaning criticism, 5. shutting her out, 6. being moody, 7. making derogatory comments about others in the office, 8. giving preference and priority to other staff, 9. covertly criticising her, and 10. being told to "take a back seat".
In respect of Ms Emerton, the applicant accused her of: 1. regularly critiquing her work including in respect of minor details "to find fault", questioning and criticising her efforts, 2. being unpredictable, including sometimes switching to give glowing accounts, and 3. "ganging up" on her with Ms Latanville.
Under cross-examination, the applicant gave evidence that her allegations, levelled at both Ms Latanville and Ms Emerton were of, "[e]ver-increasing criticism, ostracising me, humiliation, using ill-informed examples to denigrate me, withholding information necessary to do my work, scrutinising me every which way, and there was a sense of colluding with other staff to - well, actually, no, I take that back. Colluding with other staff to persistently criticise and undermine me": Tcpt, 30 August 2021 at p 22 (33)-(39).
This was despite the applicant listing Ms Emerton's details as a person who "witnessed the incident" leading to her injury in her Worker's Injury Claim Form: see p 147 of the Court Book.
The respondent filed evidence in direct response to the allegations of the applicant contained in a document attached to the applicant's statement, titled, "Summary of Workplace Bullying - Louise Potter": p 111 of the Court Book.
The applicant submitted that the respondent was estopped from presenting a case that claimed that the applicant's injury was caused by "reasonable management action". It is necessary to address this issue before considering the respondent's argument with respect to its loss of necessary confidence in the applicant's capacity to work harmoniously in a team environment and under management supervision.
The applicant submitted that (at AS at [86]-[91]): 86. The Workers Compensation Commission effectively determined, as essential components of the determination: a. that the applicant had suffered an injury within the meaning of the WC Act, namely one arising out of or in the course of her employment; and b. that the injury was one in respect of which compensation was payable, that is, it was not one where the injury had not been caused by reasonable management action within the meaning of s.11A of the WC Act (if it was, she would not have been entitled to compensation). 87. That the applicant's injury was not caused by such action was a legally indispensable component of the determination of the Workers Compensation Commission that the applicant was entitled to compensation under the WC Act in circumstances where: a. the respondent contended the cause of the applicant's injury was contemplated by s 11A of the WC Act; and b. if the cause of the applicant's injury fell within that section the applicant would not be entitled to compensation under the WC Act. 88. That being the case, the respondent is estopped from denying that: a. Ms Potter suffered an injury within the meaning of that term in the Workers Compensation Act 1987 (the WC Act), namely an injury that arose out of or in the course of her employment; b. Ms Potter's injury was one for which she was entitled to receive compensation pursuant to the WC Act; c. Ms Potter's injury had not been caused by "reasonable management action" within the meaning of section 11A of the WC Act. 89. That estoppel operates directly to negate the contention at [49] and [52] of the respondent's Opening Submissions that the injury suffered by the applicant was caused by reasonable management action with respect to her work performance. 90. The fact that the determination was ultimately made by consent does not change its character. An issue estoppel arises equally from judgments and orders made by consent. The respondent is bound by the determination and may not depart from it elsewhere and invite the Commission to form a different view as to the cause of the applicant's injury, or the character of the conduct that gave rise to the injury. 91. It is against the background of that accepted cause of the applicant's injury that the Commission should consider the way in which the respondent managed her injury." (Footnotes omitted)
Relevantly, subs 11A(1) of the WC Act provides: 11A No compensation for psychological injury caused by reasonable actions of employer (1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
In Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, French CJ, Bell, Gageler and Keane JJ referred to the recognised forms of estoppel and in respect of issue estoppel, stated ([220]): "The second form of estoppel is almost always now referred to as "issue estoppel". Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a 'judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies'." (Footnotes omitted)
In Turner v London Transport Executive [1977] ICR 952, Browne LJ said at p 964: "The essential foundation of a plea of issue estoppel must be that the issue or issues raised in the first proceedings, and the issue or issues raised in the second proceedings are identical. It is for the party who seeks to rely on the estoppel to establish this identity."
The parties agreed, in a point of principle, that consent orders of the Workers Compensation Commission are capable of giving rise to an issue estoppel: Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 at [111]; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 per McColl JA at [186] (Giles and Campbell JJA agreeing); Commissioner of Police v Police Association of New South Wales [2010] NSWIRComm 188.
Both parties referred the Commission of the decision of Blair v Curran [1939] HCA 23; (1939) 62 CLR 464. In that matter, Dixon J stated (at p 532): "A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order. Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous." (Footnotes omitted)
Dixon J then stated (at p 533): "The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in it as its legal justification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order. In the present case the decretal order refers in terms to the clause the meaning and effect of which is now in question. I think that two questions must be asked and answered in deciding whether from this there arises an issue-estoppel governing or determining the operation of the clause upon the undisposed of three-twentieths share of profits. The first is whether the declaration quoted necessarily involves the proposition that an interest in the business of conducting sweepstakes, if not otherwise validly disposed of, falls under the clause as a residuary gift of Tasmanian property. The second is whether this proposition is the immediate foundation of the declaration, as opposed to a proposition collateral or subsidiary only, that is, no more than part of the reasoning supporting the conclusion."
Accordingly, it is necessary to answer the following question to determine the estoppel issue: 1. Was the determination of whether s 11A of the WC Act applied in the applicant's Workers Compensation case an indispensable or immediate foundation for the Consent Order, such that the Consent Order could not stand legally without it.
The respondent conceded that the Consent Orders effectively determined that the applicant had suffered an injury within the meaning of the WC Act, namely her injury arose out of or in the course of her employment. However, the respondent contended that the proceedings did not dispense with the issue of whether the applicant's injury was caused by "reasonable management action" within the meaning of s 11A of the WC Act.
In my view, in answering the applicant's allegations in these proceedings, the respondent does not seek a finding the applicant's psychological injury "was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers": see s 11A of the WC Act. The respondent relies upon the evidence in the proceedings to establish that it could not have the necessary confidence in the applicant's capacity to work harmoniously in a team environment and under management supervision given, "her preparedness to make unsubstantiated allegations about bullying and other inappropriate conduct." These are different determinations.
However, even if I am not correct regarding the distinction between the factual findings the Commission is being asked to determine and those required to establish a s 11A defence, I am also of the view that the Consent Orders do not create an issue estoppel in respect of whether the injury sustained by the applicant was because of "reasonable management action". The issue of whether the injury was caused by "reasonable management action" was an available defence pursuant to s 11A of the WC Act. It was not an indispensable or immediate foundation required for the Consent Orders to be made.
Rather, the factual matters indispensable to the Consent Orders entitling the applicant to workers compensation benefits under ss 36 and 37 of the WC Act were that the applicant was an "injured worker" who had no current work capacity, and that her employment "was a substantial contributing factor to the injury": see s 4 and subs 9A (1). There was no requirement for the Workers Compensation Commission to conclude that her injury was caused by the inappropriate conduct alleged by the applicant, variously described, for the Consent Orders to be made.
The applicant in these proceedings put before the Commission, very serious allegations against Ms Latanville and Ms Emerton: see "Summary of Workplace Bullying - Louise Potter" at CB 111; the "Summary Notes Louise Potter" at Court Book p 24; the Betts email; "L Potter_Chronology of Events June 2018-February 2020" at Court Book p 779 and the applicant's outline of opening submissions filed 3 May 2021 (AOS) at [21] and [47]. However, in her final submissions, the applicant stated that the various incidents of exclusion and criticism that occurred in the workplace that led to her injury are not dealt with in detail, because it is inarguable that; she suffered an injury that arose out of, or in the course of, her employment; and the injury was not one caused by "reasonable management action": AS at [27]. Ultimately the respondent relied upon the evidence of the applicant's allegations for a different purpose, namely, to demonstrate her incapacity to work harmoniously in a team environment and under management supervision.
The applicant did, however, choose to maintain the assertions in her final submissions (in summary) that Ms Latanville stated to the applicant during her 2018-2019 mid-year performance review, words to the effect: "You have a problem distilling information - a wiring problem and would like to work on that".
In addition, the applicant continued to challenge the veracity of Ms Latanville's account that there was a need to re-align the work being undertaken by the applicant with her role and position description stating that at the very least, the performance review process in late 2018 failed to clearly articulate the alleged mismatch between the position description and duties which was said to inform the approach of Ms Latanville to managing the applicant's performance.
It is difficult to see how, even if the those matters addressed in the applicant's submissions were made out on the evidence, they could justify the description attributed to Ms Latanville's conduct by the applicant as set out above at [92].
The applicant did not address the various allegations made against Ms Emerton in her final submissions at all.
It is not in contest that aspects of the applicant's role were changed after Ms Latanville commenced supervising her, and she was provided with feedback with respect to her performance which she did not agree with. It is my view that the applicant interpreted these changes and the feedback as conduct which can be broadly described as bullying, to which she had a significant personal adverse reaction, manifesting in her workplace injury. From having observed the applicant give evidence, I have formed the view that she genuinely believes that she was bullied in the workplace. However, I am not persuaded by the applicant's evidence that she was.
To the extend these findings are contrary to the evidence of the applicant, I have preferred the evidence of Ms Latanville and Ms Emerton. In this regard, I note that there was no corroborating evidence from any other employee or witness to substantiate the applicant's claims she made in respect of the alleged conduct; and the documents associated with the applicant's performance appraisal were consistent with the versions of events provided by Ms Latanville and Ms Emerton.
I have made this assessment with the benefit of having carefully observed the applicant and Ms Latanville and Ms Emerton give evidence before the Commission. I found Ms Latanville and Ms Emerton to be witnesses of truth, on occasion responding to questions under cross-examination in a way that may be considered unhelpful to the respondent's case. On the other hand, I observed the applicant often appear uncertain in giving her evidence, frequently pausing for long periods before responding to questions. She maintained her evidence under cross-examination with respect to her allegations, even where she has not provided examples to support those and showed limited insight into how the behaviour of Ms Latanville and Ms Emerton may be interpreted differently to how she perceived it.
The applicant argued that Ms Latanville had an inappropriate management style, making it more likely she was bullied by her as alleged by the applicant during her employment. Under cross-examination, Ms Emerton gave evidence that Ms Latanville was a strong personality and would sometimes roll her eyes and she had asked Ms Emerton to assist her by letting her know that she was doing this: Tcpt, 1 September 2021, p 13 (39)-(45); p 43 (46). She gave evidence that Ms Latanville at times lacked diplomacy and could be impatient, but that she was self-aware of this and had taken steps to adjust her style and sought assistance to professionally work towards improvements: Tcpt, 1 September 2021, p 12 (12)-(19). Ms Emerton was provided with a copy of her statement from the Workers Compensation matter, where she stated that Ms Latanville had a management style that could impact negatively upon others and had observed behaviours that were abrupt and event harsh: [10] of Ex A5. She gave evidence that she had observed Ms Latanville interact with the applicant in a way that might be interpreted in this way: Tcpt, 1 September 2021, 1 September 2021, p 20 (3).
Both Ms Emerton and Ms Latanville were cross-examined on their relationship with each other and a meeting they participated in early in their working relationship with a third person. In my view, there appeared to be little in this as both Ms Emerton and Ms Latanville gave evidence that a facilitated conversation brought the differences to a conclusion, and they went on to have a positive working relationship: Tcpt, 1 September 2021, pp 38-39; 18 October 2021, p 65 (22)-(37). I found this evidence of limited probative value in establishing that Ms Latanville had bullied the applicant as alleged.
It would seem from the evidence that there were aspects of Ms Latanville's management style that she had, for whatever reason, decided she should work on. To some extent, the fact that Ms Latanville had acknowledge these and shared what she wanted to change with Ms Emerton demonstrates a capacity to take on feedback and a commitment to personal development. It was of very limited probative value in establishing that Ms Latanville was likely to have bullied the applicant.
In her evidence, the applicant documents a range of decisions and actions of the respondent's managers which she disagreed with and which she characterised as inappropriate. It is not the role of the Commission to consider and determine whether the day-to-day decisions of the respondent's managers was correct or appropriate. However, I consider that the evidence does disclose a willingness on the part of the applicant to make unsubstantiated accusations against her work colleagues faced with constructive feedback with respect to her performance. The following examples of the applicant's allegations are demonstrative of this.

Allocation of "Youth Force" project

The applicant complained that the "Youth Force" project was given to Ms Emerton by Ms Latanville over her and that more generally, Ms Emerton was consistently given "all round preference and priority" which she stated was witnessed by colleague Ange Anderson, who did not give evidence in the proceedings: the applicant's statement at p 27 at [4]. Mr Latanville denied the applicant's allegation, responding that in respect of the particular task, Ms Emerton was a more senior employee and she was given the project to lead because of its complexity and her experience with the stakeholders, providing the applicant with an opportunity to be involved in the project under Ms Emerton's supervision: Ex R4 at p 15.
Mr Emerton gave evidence that having worked as a Coordinator (Clerk Grade 7/8), she knew the function of the role well and that the applicant had overstated the responsibilities of the position in her evidence: Ex5 at [37]. With respect to the "Youth Force" project, she gave evidence as Senior Coordinator (Clerk 9/10) it was her role to take the lead on projects and new initiatives, the applicant was expected to provide a support role to the work. She also gave evidence that the project was very high profile and was being led by Ms Latanville because it involved dealing with the Minister.
Ms Latanville and Ms Emerton's evidence was consistent and their explanation for the management of the project, reasoned and plausible. The applicant did not respond directly to this evidence and neither Ms Latanville nor Ms Emerton was cross-examined in respect of it. The applicant's allegation that Ms Emerton was given all round priority and preference, with the allocation of the Youth Force project is misguided. It was well within Ms Latanville's managerial prerogative to decide to allocate the work with respect to the project as she did.

Interrogation and micro-management of flex time, leave, work hours and work from home arrangements

In her evidence, the applicant complained that Mr Latanville interrogated and micro-managed her flex time, leave, work hours and work from home arrangements. She stated (applicant's statement at p 33 at [31]): "It felt like Tanya not only attacked my work, she also interrogated and micro managed my flex time, leave, work hours and work from home arrangement. For example, she forced a formal work from home application for my regular one day per week arrangement, following her issue with a momentary connectivity issue whilst my mobile phone was charging. In comparison, with knowledge that ad-hoc work from home arrangements required no formal application, Tanya regularly gave no prior warning that she had decided to work from home. Katherine did the same, even though she had stressed that her remote home address had connectivity issues. Tanya challenged the Department's flexible work guidelines, directing that I am only to work standard hours being 7-7.5 hours per day unless work requires me to work beyond that. Tanya reiterated this again in my recent 'informal' performance conversation (30/7/19), 'if staff are working more than 7.5 hours per day, anything above that goes to flex time. If people are doing 8-9 hours per day, then that is a problem.' However, Tanya announced that she has gained approval to take every second Friday off as a flex day so that she doesn't lose her excess flex time, which raises questions about inconsistency, specifically ability to accrue required flex hours to accommodate unique arrangements. Other advice also seemed inconsistent."
In response, Ms Latanville gave evidence that she had a conversation regarding the work from home arrangements of her staff in response to an email from the Department Secretary in October 2018. Leading from this, Ms Latanville agreed with the applicant that she would work from home one day a week until the end of 2018, to be revisited in 2019. Ms Latanville gave evidence that after she was unable to contact the applicant for an entire afternoon via email or telephone, in conjunction with Ms McMeeking, a decision was made that if the applicant was to continue to work from home, this would need to be under a formal working from home agreement, with arrangements being made for this to occur when Ms Latanville was on leave from 25 April 2019 to 11 June 2019: Ex A4 at [80]-[84].
This evidence was broadly corroborated by Ms McMeeking who stated that she was aware of concerns about the applicant's working from home arrangements in 2019 and had been advised by Ms Latanville in a regular fortnightly meeting that she had not been contactable from time to time and had requested money for the use of electricity and internet. Ms McMeeking deposed that she gave advice to Ms Latanville that there was a policy that should be followed for all staff regarding such arrangements and that clear outcomes needed to be identified prior to granting a request. The resultant application for Regular Remote Working was in evidence, approved by Ms McMeeking, indicating it was for a trial period of 3 months only, after which the arrangement would be reviewed: Ex R2 at LM4.
Ms Latanville responded directly to the applicant's allegations above in her statement, giving evidence that (in summary) (Ex R4 at p 23 [ee]): 1. The applicant's work from home arrangements were in accordance with the Departmental policy for regular, ongoing flexible working arrangements; 2. The other instances raised by the applicant where other staff worked from home were one off instances; 3. She had spoken to the applicant about instances of the applicant logging time worked where she had known her to be at private appointments; 4. She had been asked by Ms McMeeking to issue a direction to all staff, not just the applicant, to try to limit hours over 7.5 - 8 hours per day to manage flex time accrual. 5. Her personal arrangements were because of a medical need which she did not feel the requirement to disclose to staff.
Ms Emerton also gave evidence that she very rarely worked from home as she was required to drop her daughter off at a school located closer to her workplace than her home and that in her experience Ms Latanville communicated when she was working from home at the beginning of the day and was always contactable and would come into the office if asked to do so.
In her reply evidence, the applicant did not specifically address the responses to these allegations made by her, although she stated generally that she did not agree with the evidence of Ms Latanville and Ms Emerton in respect of a number of matters, but in the interests of brevity and efficiency, she had limited her responses: see applicant's statement in reply at [45]; [58]. It is particularly telling that the applicant chose not to address the concern raised by Ms Latanville in her evidence that she had cause to address flex time entries of the applicant which had her working when she knew her to be at private appointments.
The evidence of the respondent in respect of the management of the applicant's flex time, leave, work hours and work from home arrangements demonstrates Ms Latanville approached these matters in a fair and balanced way and with the advice of her line manager having identified issues with the applicant's practices. It is reasonable that the respondent addressed formally the applicant's work from home arrangements, requested that she work between 7.5 and 8 hours a day unless there is a real need to do otherwise, and addressed concerns with respect to flex time entries when these were observed. It matters not whether the applicant was offline for a whole afternoon or momentarily - it is appropriate that the respondent formalise a work from home arrangement to ensure it is safe and effective and create clear parameters regarding how the arrangement will be resourced.
Ms Latanville's account of her management of the applicant's work arrangements in this regard were clearly explained in her evidence and her underlying rationale for her actions was not contested in either the applicant's reply evidence, or in cross examination. I accept her evidence which does not support the applicant's assertion that she was being "interrogated" and "micro-managed".
The applicant's apparent interpretation of the actions of her managers in addressing her work from home arrangements, flex time and hours of work is concerning. It is demonstrative of the applicant's lack of perspective and understanding of the managerial right of her employer to effectively manage the conduct of her work. It also supports the conclusion that the applicant is not able to work harmoniously under management supervision.

Say "yes and" rather than "but"

The applicant alleged that part of the bullying conduct was evidenced in the performance discussions she had with Ms Latanville in 2018 and 2019. In relation to the record of the performance discussion, the applicant identified that she was advised "I'm to say 'yes and' rather than 'but"'. The applicant stated that she understood it to be an instruction from Ms Latanville that when she received feedback from Ms Latanville, she was to respond in that way. Ms Latanville explained in her evidence in chief and cross examination that she was imparting to the applicant, a strategy that prevented her from getting defensive if someone was giving her feedback: see Ex R4 at par (n)(ii); Tcpt, 18 October 2021 at pp 57(39) - 58 (16). I accept the context within which the comment was made by Ms Latanville to the applicant. The advice was appropriate and does not constitute inappropriate conduct as alleged by the applicant.

"You have a problem distilling information - a wiring problem" comment

The applicant gave evidence that during her performance development review discussion conducted on 19 November 2018, Ms Latanville said to her, "you have a problem distilling information - a wiring problem and would like to work on that." While Ms Latanville gave evidence that the description the language would be hurtful and likely to be upsetting, she denied making the statement to the applicant during the meeting.
In summary, the applicant submitted that the evidence of the applicant that the statement was made should be accepted for reasons including the following: 1. The applicant was not cross-examined in respect of whether the comment was made; 2. The reference to the comment was contained in the applicant's notes of the meeting sent to Ms Latanville by her and her rebuke of 21 December 2018 in the following terms was insufficient to portray the offence she would have taken had she been falsely accused of making the comment: "Thanks for capturing you understanding of our discussion. I think that my understanding on a couple of points is slightly different." 1. It was unlikely that Ms Potter would cease on the word "wiring" and repeat it more than 12 months later to Dr Chow if it was not used. 2. The evidence of Ms Emerton in the workers compensation investigation on 29 November 2019 (Ex A5) that Ms Latanville is a person with a tendency to brusqueness who had a temper that tendency to perform her role as manager.
For the reasons set out above, I prefer the evidence of Ms Latanville to the applicant's account. The applicant was cross-examined at length about the truthfulness of her allegations as contained in her evidence and is not necessary that every single allegation be put to her in cross-examination, particularly in circumstances where the matter proceeded by way of written statements: see Shelley Jackson v Commissioner of Police [2019] NSWIRComm 1033 at [103]-[113]. Similarly, Ms Latanville's response on 21 December 2018 to the applicant's account of the performance meeting was clear - she was not accepting the account of the applicant and it was implicit in her response that there was no intention to try to resolve those areas of conflict. The fact that Ms Latanville did not specifically unpick and answer each of the discrepancies does not make her account less believable.
For the reasons set out above at [115]-[117], I am unable to find Ms Latanville made the comment because of Ms Emerton's evidence about her management style.

Conclusion in respect of discretion to reinstate or re-employ

What is clear from the evidence is that both Ms Emerton and Ms Latanville, observed opportunities for improvement in the applicant's performance and this was articulated to her. The applicant was unwilling or unable to the accept that feedback. Nowhere in the applicant's evidence was there an acknowledgement of the legitimacy of any of the performance issues raised with her. This supports the respondent's submission that it could not trust that the applicant would work harmoniously under supervision given her preparedness to make unsubstantiated allegations about bullying and other inappropriate conduct.
I do not accept the applicant's contention that because she had not received constructive feedback in the past about her performance, the issues raised by Ms Latanville and Ms Emerton were not valid. It is not uncommon for performance issues to be identified and raised for the first time by a new line management with an employee.
In making these findings, it is unnecessary to find that the applicant gave deliberately untruthful evidence. I have decided that I prefer the evidence of Ms Latanville and Ms Emerton for the reasons I have set out. These are conclusions I have reached having considered the evidence carefully, including the presentation and demeanour of the witnesses giving evidence before the Commission, in circumstances where there were very different perspectives given on the relevant events leading to the applicant's termination of employment.
I am persuaded that the respondent's concern that the applicant will make unsubstantiated bullying and harassment type claims in the future are properly founded. Through these proceedings, the applicant has demonstrated her willingness to make broad and significant claims against her managers, without foundation, or in circumstances where there is a clear and obvious alternative explanation for Ms Latanville and Ms Emerton's conduct which she is unable or unwilling to countenance. The respondent has a legitimate interest in being able to provide feedback to its employees without being concerned that mangers will have unsubstantiated bullying and harassment type claims made against them.
While I am mindful of the purpose of Pt 8 of the WC Act is to support the return of injured workers to employment, I have decided for these reasons not to exercise my discretion to make the orders sought by the applicant for reinstatement or re-employment.

The unfair dismissal application

The applicant submitted that her dismissal was harsh, unreasonable, and unjust, and sought reinstatement, re-employment and/or compensation pursuant to s 89 of the IR Act.
In summary, the applicant submitted (AS at [143]-[149]): 1. The dismissal was unjust because there was not a fair and valid reason for it, noting that the applicant's condition was not permanent and there was every expectation that she would resume full time work if returned on the basis recommended by Dr Chow on 15 April 2020. 2. The injustice was aggravated by the fact that the applicant's injury was one which she suffered in the course of her employment, and for which the respondent was liable. 3. The respondent did not take serious or reasonable steps to devise a return-to-work plan and "deal with both the cause and consequence of the applicant's injury." 4. The dismissal was unreasonable because it was carried out in haste, without careful consideration of the expert medical opinion, or regard being given to the fact that the applicant's Workers Compensation appeal was in train. 5. The dismissal was harsh because of the applicant's years of loyal service for the respondent, her lack of experience outside of government, the limited employment prospects in a regional area, and her vulnerability and disadvantage by reason of her illness. 6. The dismissal was also harsh because it was excessive having regard to her prognosis, with Dr Mayson projecting a return to work within 12 weeks in his opinion of 23 July 2020.
The respondent argued the termination was not harsh, unreasonable, and unjust.
The respondent submitted in answer to the unfair dismissal claim (RS at [106]): 1. There was a valid reason for the applicant's dismissal based on her incapacity for any work, noting that the applicant does not contend that s.47(1)(d) of the GSE Act was not enlivened. 2. The applicant's incapacity for work was not caused by the inappropriate or unlawful conduct of her own managers, and she has in any event abandoned that allegation. 3. The applicant's allegations against Ms Emerton and Ms Latanville were spurious. 4. The applicant was given extensive paid time off work and did not properly participate in efforts to return her to work, including by refusing to attend an independent medical examination with Dr Doug Andrew, psychiatrist, arranged by the insurer for 29 January 2020 on legal advice. 5. The respondent granted the applicant's request for additional paid sick leave, despite her having no entitlement to it. 6. The applicant at no stage had any capacity to return to any work according to the medical certificates that she presented to the respondent. 7. The applicant could not advance in her evidence any sensible reason why her dismissal was unreasonable because of the existence of the workers compensation proceedings and the fact that a workers compensation appeal was in process. 8. The adverse effect that the dismissal has had on the applicant is far outweighed by her conduct in "advancing unmeritorious, abandoned and unproven allegations against her direct managers, and not actively participating in efforts to return her to work."
The respondent contrasted the applicant's opening submissions filed on 3 May 2021 with her closing submissions, particularly with respect to the alleged conduct of the respondent's managers, Ms Latanville and Ms Emerton. In the applicant's opening submissions, the applicant stated that the termination was unfair because it was caused "by the conduct of the respondent's own manager". In addition, the applicant stated (AOS at [21]): "The conduct of Ms Latanville, along with another employee, Ms Emerton, left the applicant feeling bullied. Ms Latanville's conduct toward the application included: (a) Unwarranted criticism; (b) Excluding the applicant from the type of work she had previously performed; (c) Excluding the applicant from discussions and meetings; and (d) Telling the applicant not to speak in meetings."
The respondent submitted that the allegation against her managers was no longer pursued in her closing submissions and described this as being "of profound significance" for seven (7) reasons. In summary, these reasons were that: 1. The applicant had chosen not to address the allegations made against Ms Emerton and Ms Latanville in her closing submissions. 2. There is no closing submission that Ms Emerton and Ms Latanville engaged in any inappropriate or unlawful conduct towards her whatsoever. 3. The closing submission fail to address the majority of the allegations about Ms Latanville's conduct towards Ms Potter with the exception of the "wiring problem" comment alleged to have been said. 4. There is a need to resolve the issues of credit arising from the allegations made by the applicant with respect to Ms Latanville and Ms Emerton in the proceeding and in favour of the respondent's managers. 5. The factual foundations of the medical opinions relied upon by the applicant are undermined because they were based on the applicant's version of events that the Commission should conclude were false. 6. It undermined the applicant's rationale that she should have been returned to work in a role under different line management. 7. It undermines the criticism of the respondent for not "managing her injury" by placing her in a different role.
With respect to the respondent's submissions that the applicant had abandoned the allegations against Ms Latanville and Ms Emerton, the applicant submitted in response that she had not done so. Rather, her position was that it was not necessary for the purposes of the present proceedings to litigate those matters because the injury and its connection with her work is indisputable.
The applicant further responded as follows to the respondent's case in respect of the unfair dismissal (in summary): 1. The applicant effectively seeks to re-litigate the question of the cause of the applicant's workplace injury and it is disentitled to do so as this was conclusively determined by the Workers Compensation Commission proceedings. 2. Subsection 47(1)(d) of the GSE Act provides for a discretion to terminate and does not deprive the Commission of its jurisdiction pursuant to Part 6 of the IR Act. 3. The decision maker failed to have regard to the cause of the applicant's injury which resulted in the incapacity, the applicant's prognosis and any steps that were available to return her to full capacity. 4. The decision maker failed to take into account factors which indicated the applicant would be likely to return to work, such as her lack of previous mental health history, her openness to returning to work, the fact that she was considered capable of returning to work, and that she had potential for other employment. 5. The applicant should not be criticised for declining the independent medical examination on legal advice, or reasons including that the request did not comply with the Workers Compensation Guidelines. 6. The applicant was entitled under the relevant Award to the payment of sick leave accrued prior to her redundancy. 7. There was a clear path to recovery for the applicant and the respondent may not refuse to explore those options, and complain that the applicant was not ready to return to work. 8. The dismissal proceeded on the basis that the applicant's injury was not work related and in the face of the letter from the applicant's union stating it was premature to terminate her and the respondent should fulfil its obligations under the WIMWC Act to provide suitable duties and reasonable adjustments. 9. The respondent has refused to grapple with the impact upon the applicant, in particular her illness. There being no comparable evidence as to the impact of the matter upon Ms Latanville or Ms Emerton and that the suggestion the applicant's suffering is negated by the impact of these matter on them is a "classic instance of blaming the victim" and is seriously lacking any sense of proportionality. 10. The respondent can't undermine the report of Dr Chow on the one hand and rely upon it on the other. 11. The respondent's case is effectively that the applicant is untruthful, she never suffered any injury which arose out of the course of her work. The respondent is estopped from making this case because of the outcome in the Workers Compensation matter and was bound to accept Dr Chow's opinion and recommendations about the rehabilitation of the applicant.

Relevant legislation and legal principles

The principles underpinning the Commission's jurisdiction in the context of a s 84 application are well known. The fundamental question under s 84 of the IR Act is whether the dismissal was "harsh, unreasonable or unjust". These terms are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20, 28 cited in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at p 467.
The Full Bench has stated in Corrective Services NSW v Danwer [2013] NSWIRComm 61 at [21]: "It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Ply Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: 'It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.'"
Section 88 of the IR Act relevantly provides that the following matters may be considered in determining whether the dismissal was unfair: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account - (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and … (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant.
An aspect of the applicant's case was that the dismissal was unjust because the respondent was in breach of its obligation to provide suitable work as provided for at s 49 of the WIMWC Act, which provides: 49 Employer must provide suitable work (1) If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker. Maximum penalty - 50 penalty units. (2) The employment that the employer must provide is employment that is both suitable employment (as defined in section 32A of the 1987 Act) and (subject to that qualification) so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was at the time of the injury. (3) This section does not apply if - (a) it is not reasonably practicable to provide employment in accordance with this section…
I turn to consider the applicant's unfair dismissal application.

Consideration of the applicant's unfair dismissal application

The task before the Commission in determining the unfair dismissal application is to examine the reasons for the dismissal, their nature and whether they have a basis in fact. Consideration is also to be given to the process and events which led up to the decision to dismiss the applicant to determine if it was harsh, unreasonable, or unjust.

What was the reason for the dismissal, what was its nature, and did it have a basis in fact?

The applicant's employment was terminated pursuant to subs 47(1)(d) of the GSE Act because she was unable to perform the duties of her role as a Coordinator Officer, due to her illness: Ex R8 at AH 05; see [35] above.
Subsection 47(1)(d) provides the respondent with a discretion to terminate the employment of public sector employee as depicted by the word "may". A termination of the employment pursuant to subs 47(1) of the GSE Act does not preclude the Commission from exercising its jurisdiction pursuant to Part 6 of the IR Act.
In J Boag & Son Brewing Pty Limited v Alan John Button [2010] FWAFB 4022, 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 [their] 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."
Although stated in the context of the unfair dismissal provisions contained in the Fair Work Act 2009 (Cth), it is appropriate to consider the applicant's incapacity to return to her pre-injury duties in the context of subs 88(b) of the IR Act.
There was no contest in this matter with respect to the applicant's illness and her incapacity to work at the time of her dismissal. The applicant was unfit for duties from 3 September 2019 up to and at the time her employment was terminated on 17 September 2020, over a year.
The applicant argued that the dismissal was unjust because there was not a fair and valid reason for it, noting that the applicant's condition was not permanent and there was every expectation that she would resume full-time work if returned on the basis recommended by Dr Chow on 15 April 2020, namely, with a different line management.
The applicant did not need to be suffering from a permanent illness or injury preventing her from doing her job for there to be a valid reason for termination of her employment within the GSE Act or the IR Act.
In her evidence, Dr Hassner referred to the Key Reasons contained in the Show Cause Brief for terminating the applicant's employment as set out above at [33] (Ex R8):
The IME report advising that the applicant was fit to return to work on a graduated basis from 1 July 2020.
The applicant remained unfit for work on the advice of her treating professionals.
All opportunities for injury management and return to work had been exhausted.
Although it is unlikely that Dr Hassner was in receipt of the letter of Dr Mayson, I accept her evidence that this would not have changed her decision if she was: see [34] above. In my view, that decision was valid despite the advice of Dr Mayson given the applicant had been absent from work for more than 12 months because of illness and attempts to engage her to return to work had not been fruitful. There was a valid reason for the dismissal of the applicant, namely she was unable to perform the inherent requirements of her job and had been unable to do so for over 12 months.

Was the dismissal unjust and unreasonable because the respondent acted with haste and did not take reasonable steps to aid the applicant's recovery and/or create and implement a return-to-work plan for the applicant?

The objective facts do not support the contention that the respondent acted with haste. Again, the applicant had been unfit to perform any duties for over 12 months prior to her dismissal. The respondent remained in communication with the applicant throughout her absence with Mr Rumbold and Ms Fahy, including as set out above at [16]- [18]. As set out above at [22], it was not until 30 October 2019 the applicant provided a medical diagnosis to the respondent with respect to her condition that had prevented her from returning to work, however, they did not receive information with respect to how long it might take for the applicant to recover until later.
Between 1 November 2019 and 14 February 2020, the applicant's illness was managed as a workers compensation claim by the respondent but was referred to Ms Fahy when the respondent's insurer denied the claim on 14 February 2020: Ex R5 at [33].
Mr Rumbold gave evidence that after the respondent received the report of Dr Chow in mid-April 2020, he decided in conjunction with Ms Fahy that they would "wait for the three-month period indicated by Dr Chow for recovery and then consider options at that stage, being the week of 1 July 2020": Ex R3 at [70].
Ms Fahy gave evidence that she engaged in approximately monthly check-ins with the applicant to discuss her recovery, including telephone conversations on 27 May 2020 and 26 June 2020 where the applicant informed her, in effect, she was not ready to return to work, was concentrating on her recovery and she had not been looking for other roles: Ex R5 at [46]-[49].
Mr Rumbold attached to his evidence an email to the applicant dated 3 June 2020 informing her of an advertised role of Administration Officer with the NSW Rural Fire Service, which was at the Level 2/3 level, lower than her substantive position: DR-17 at p 31. It should be noted that at this time, the applicant was unable to move from Coffs Harbour due to her caring responsibilities. In his email to the applicant, Mr Rumbold said that he would continue to monitor for roles for her and that he would be in touch in coming weeks to discuss next steps.
On 3 July 2020, Mr Rumbold and Ms Fahy had a telephone discussion with the applicant. Mr Rumbold and Ms Fahy gave consistent evidence that the applicant stated that she had not yet reached significant medical improvement to enable her to return to work and that this view was supported by her treating medical practitioners and that she had not been looking for other roles. Mr Rumbold also gave evidence that he had been anticipating a discussion about what a return-to-work plan may involve but they did not have an opportunity to do so because the applicant "repeatedly said that she was not fit and could not indicate when she may be ready to discuss a possible return to work": Ex R3 at [76].
Mr Rumbold gave evidence that when he called the applicant to follow up on 17 July 2020, she "stated that she was not fit and would not discuss a return-to-work plan." When cross-examined, the applicant agreed that at this time, her doctors had said that she had no capacity for work and was unable to apply for jobs: Tcpt, 30 August 2021, at p 59 (25).
It is clear from the evidence that Mr Rumbold and Ms Fahy were genuine in their support and encouragement of the applicant to look for and apply for roles that were advertised as vacant while she was on leave. However, Mr Rumbold gave evidence that those efforts to assist the applicant were at least initially frustrated by a lack of diagnosis and prognosis with respect to her illness.
Had the applicant been well enough to do so, it would have been reasonable to expect that she would engage meaningfully in a process to identify appropriate roles for her to occupy and actively participate in the development of a return-to-work plan. However, the objective evidence is that the applicant was either unwilling or unable to participate in the development of a return-to-work plan at any point prior to her dismissal. The applicant's criticism of Mr Rumbold and Ms Fahy that they were not doing enough to find her an alternative role and not consulting sufficiently with her in relation to their efforts to do so, was in my view, unfair: Tcpt, 30 August 2021, p 60 (3)-(5). To the extent the applicant submits that the respondent ought to have moved her laterally into another role in Coffs Harbour outside of the Department, that was an unreasonable expectation given the applicant's refusal to engage in any mediation process and/or lodge a formal grievance to allow her allegations to be properly investigated in a procedurally fair manner. Moreover, the applicant did not have capacity for any work from 3 September 2019 until after her dismissal.
On 30 July 2020, the respondent received a completed questionnaire from the applicant's treating Doctor, Dr Mayson as referred to above [29]. Dr Mayson's advice is clearly premised on an assumption that the respondent had not taken steps to engage with the applicant to develop a return-to-work plan, which may have included a different line management. The evidence demonstrates that this assumption was incorrect. For whatever reason, the applicant could not or would not engage with Mr Rumbold or Ms Fahy with respect to her return to work on any basis, despite their efforts to engage with her on this.
However, the letter of Dr Mayson may have prompted the respondent's managers to re-engage with the applicant to attempt, once again, to open a conversation with the applicant about what a return to work might look like, including under a different line of management. There is no evidence of a subsequent engagement with the applicant following receipt of Dr Mayson's letter. In my view, this should have occurred, although there is a limited evidentiary basis upon which to assess the likelihood of such an approach succeeding in improving the applicant's health and/or capacity to return to work.
There is no substance to the applicant's submission that the dismissal was unreasonable and carried out with haste because her workers compensation appeal was in train. The applicant was unable to adequately explain why this was relevant to the unfair dismissal claim. It would be impractical to expect that an employer would suspend a process of deciding whether to terminate an employee's employment on the basis that they have or intend to appeal against the rejection of a workers compensation claim. It is not unusual for such appeal processes to take several months and even years to conclude.
The evidence demonstrates a professional and diligent approach by Mr Rumbold, Mr Fahy in their performance of their roles and support of the applicant whilst she remained on leave. Whilst in retrospect, it may have been desirable to follow up with the applicant following the letter of Dr Mayson, I do not consider their management of the applicant's circumstances to have been unreasonable. I also disagree that the pathway for the applicant's recovery was "clear." She was suffering from a prolonged illness that had not at any stage recovered to the point that she could meaningfully engage with the Mr Rumbold or Ms Fahy about her return to work.

Was the dismissal unjust or the injustice of the termination aggravated by the fact that the applicant's injury was sustained in the workplace?

The applicant further submitted that the dismissal was unjust and "aggravated" by the fact that the applicant's injury was sustained in the workplace. The respondent was obliged to act fairly in the management of the applicant's circumstances and decision to terminate her employment, whether her injury was caused by the workplace or not.
At the time of the termination of her employment, the applicant did not have an accepted workers compensation claim and was unwilling and or unable to engage in a process that would have allowed the respondent to investigate the allegations she made against Ms Latanville. It is difficult to understand how the respondent could deal with "the cause and consequence of the applicant's injury" as the applicant perceived them to be in these circumstances. It follows that I reject the submission that any unfairness (of which I have found none) was aggravated as alleged by her.

Was the dismissal harsh, considering the applicant's personal circumstances

I have considered the applicant's personal circumstances, including her age and the many years of service she gave to the New South Wales public service: see above at [7]. I accept that the applicant may have expected to continue to be employed by the respondent until the conclusion of her career, had she not been dismissed.
The applicant has suffered a psychological injury sustained in the workplace and this has had a significant impact on her life. There is no evidence of the applicant having developed skills outside of the public service and because of this, along with her age and being in a regional area, she is in a vulnerable position in terms of finding alternate commensurate employment.
I have also considered the prognosis of Dr Mayson that the applicant was expected to be able to return to work within 12 weeks. However, this needs to be considered in the context of the applicant's extended absence and she had previously failed to recover in accordance with the expected timeframes provided for in the Dr Chow Report. Moreover, she was in receipt of workers compensation payments until late November 2020.

Conclusion in respect of the unfair dismissal application

I have decided on balance, that the termination of the applicant was not harsh, unreasonable, or unjust. Objectively, there was a proper basis of the termination of employment, grounded in fact and supported by medical evidence. The applicant was not able to perform her role because of her medical condition and had not been able to do so for a long time.
The process undertaken by the respondent to manage the applicant's illness and attempts to engage her in returning to work were reasonable and professionally managed by staff who were genuinely engaged in trying to communicate and assist the applicant. Acknowledging the impact of the termination on the applicant personally, on balance, I have also concluded that the termination was not harsh.
For these reasons, I have decided to dismiss both applications.

ORDERS

I make the following orders: 1. The respondent in proceedings 2020/288829 and 2021/15957 is changed to Industrial Relations Secretary in respect of the Department of Regional New South Wales. 2. The application in 2020/288829 is dismissed. 3. The application in 2021/15957 is dismissed.

Amendments 14 February 2023 - 1. Minor correction made to the Cover Sheet and Paragraphs [62], [66], [82], [127], [197] and [173]. 2. Paragraph renumbering from Paragraph [153]. 15 February 2023 - Decision republished on 15 February 2023 without further amendment. 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: 15 February 2023

Industrial Relations Further Amendment Act 2006(NSW)

Industrial Relations Act 1996(NSW)ss 84, 85, 88, 89

Workers Compensation Act 1987(NSW)ss 4, 9A, 11A, 32A, 37, 60, 241, 242, 243, Workplace

[1999] NSWIRComm 355

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