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

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 - NSWIRComm 2006 case summary — Zoe

[11]

1 Between 1985 and 2003 Peter Riley was employed by the WorkCover Authority of New South Wales under the Crown Employees (WorkCover Authority - Inspectors) Award. Mr Riley was medically retired on 4 September 2003 on the grounds that he was unable to fulfil the inherent requirements of the job of Regional Inspector because of travel restrictions placed on him arising from a medical condition. 2 Mr Riley's union, the Public Service Association and Professional Officers' Association Amalgamated Union ("PSA"), filed two applications seeking relief on his behalf. The first was under s 84 of the Industrial Relations Act 1996 claiming the dismissal was harsh, unjust or unreasonable and seeking reinstatement to his former position, re-employment to another position or monetary compensation. The second was under s 92 of the Act, which provides that if an injured employee is dismissed because he or she is not fit for employment as a result of the injury received, the employee may apply to the employer for reinstatement to employment of a kind specified in the application. 3 The applications came before Ritchie C in September and November 2004. In March 2005 the Commissioner gave his decision dismissing the applications. The PSA, on behalf of Mr Riley, has sought leave to appeal against the Commissioner's decision and orders and, if leave is granted, to appeal the decision and orders. Background 4 Mr Riley commenced employment with WorkCover as an Inspector based at Newcastle. He was transferred to Rosebery in 1987 and became centre manager for civil construction in 1995. The appellant began to experience stress and anxiety in the performance of his duties, in particular, having to view the bodies of deceased persons when attending the scene of industrial accidents. Mr Riley said in his evidence before Ritchie C that he started to experience memory loss, had trouble with sleeping and drank heavily. At the time, the appellant did not seek medical advice but attempted to remedy the situation by removing himself from the work environment where he considered he was at risk. He consequently took up the position of Inspector at the Tuggerah office of WorkCover in 1997 - a demotion. As he already resided in Gosford, he reduced his commuting time by 15-20 hours per week. This allowed the applicant to engage in an exercise regime undertaken as a stress release measure.

[31]

Decision at first instance 32 In considering the two applications (under s 84 and s 92 of the Act), the Commissioner first considered whether he was able to hear both simultaneously, finding that he was able to do so. 33 In relation to the application under s 84, the Commissioner commenced his reasoning by noting that pursuant to the principle in Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273, the appellant bore the onus of proof in establishing that the dismissal was harsh, unjust or unreasonable. 34 In finding that the relocation of the Regional Inspector's position from Gosford to Parramatta was appropriate, Ritchie C noted that the decision to relocate was made in February 2002, with the appellant not having worked since July 1999 either on a full time basis or without a travel restriction. The Commissioner also found at [153]: When there are 45 Inspectors in the Construction Team and 43 are located in the Sydney/Parramatta offices, and there are 2 in the Gosford office I understand and accept that the requirement of the respondent to have a Regional Inspector located in their Parramatta office was both logical and understandable. I accept the evidence from the respondent's witnesses that it was necessary for the Regional Inspector to be physically located at Parramatta. 35 Importantly, the Commissioner further stated at [154]: 154 As stated before at the time of the request the applicant was working under a medical restriction. He objected to the transfer on that basis. Mr. Hatcher stated that there was unfairness in being required to transfer contrary to the medical restrictions. I would accept such a claim if the applicant was terminated at that point without any opportunity to respond and without the respondent investigating any alternative options. But he was not terminated at that point nor did he transfer. Over the next ten months he and the respondent met on four separate occasions in an endeavour to find a solution satisfactory to both parties. The respondent's witnesses stated that various options were offered to the applicant but were rejected. The applicant wished to carry out his fitness regime at Terrigal Beach prior to work. It was accepted by the applicant that his training programme could have been carried out in the parks and pools at Parramatta but believed that would make for too long a day. It was also accepted by Dr. Earp that his training programme need not be necessarily carried out on Terrigal Beach. 36 The Commissioner also found that Mr Riley: [H]ad ample opportunity to state his case at the various meetings held between himself and the respondent and bring to the respondent's attention whatever evidence he had, to seek to change the mind of the respondent. 37 On the question of whether the respondent manipulated the HealthQuest process, Ritchie C found as follows: 159 Mr. Hatcher stated that the respondent had manipulated the HealthQuest process. The applicant had a HealthQuest examination on 21 January 2003. At the time he provided HealthQuest with medical reports, emails and reports. He also stated that "I should not be relocated to Sydney as it may exacerbate my pre-existing condition. The most likely outcome being of no benefit to WorkCover & detrimental to my health." The applicant received a copy of the HealthQuest report dated 29 January 2003 on around that date. The report was expressed under the headings of Background, Assessment, Conclusion and Recommendation. Under the heading of Conclusion Dr. Casolin stated that the applicant suffers from major depression and raises the question of whether he is fit to work at Parramatta? He noted the added travel of 4 hours per day, the psychiatrist view of the ramifications of this and the significant risk of the recurrence of his depression. Under the final heading Recommendation he stated: Whilst Mr. Riley is fit to work as a regional Inspector, he would be at increased risk of developing recurrent depression should he be required to travel an additional 4 hours on 3 or more days per week. Please advise whether or not this can be accommodated. 160 On 13 March 2003 the respondent wrote to the applicant and advised that "because we are unable to accommodate your current restrictions you will be referred back to the GMO for re-assessment." The same correspondence advised that the applicant may within 14 days respond in writing to the GMO. Included in the report to the GMO was the applicant's position description.

[36]

Q. So you did not have any idea about what you would have put in because you had not turned your mind to it by then? A. I actually had considered the information from WorkCover which I thought was relevant. 165 Whilst it was unfortunate that the applicant received Dr. Casolin's report prior to having the opportunity to state his views, I have doubt as to what further information he would have provided that would have altered the final outcome. I have noted the comments expressed in Antonakopoulos v State Bank 91 IR 385 which raised the issue of an unfair procedure during the process. Taking into consideration the long history that culminated in the applicant's medical retirement I do not believe that particular lack of opportunity experienced by the applicant was fatal to the process. 38 The Commissioner also noted: 166 I am not convinced on the evidence before me, that the respondent sought to and or did manipulate HealthQuest. Both provided documentation to HealthQuest, and HealthQuest in the 29 January 2003 report expressed in my view, in clear terms what both parties' positions were. The report of 29 January 2003 stated that: HealthQuest was informed that alternative Regional Inspectorate positions have been considered, but these positions require similar or more travel. Mr. Riley wrote a submission to HealthQuest, and in this he indicated that he is able to travel within a normal working day, with the occasional extended day. 167 The applicant took the opportunity to appeal the HealthQuest determination but the appeal was not successful as the appeal was not based on medical grounds. 39 The Commissioner next considered the respondent's claim that the appellant lacked the integrity and honesty necessary to carry out the position of Inspector or Regional Inspector, the appellant's actions with respect to applications for superannuation benefits and personal firearms licences being raised as examples. The Commissioner found that on the medical evidence, the appellant had not knowingly falsified the two applications: [170]. Ritchie C also stated at [171]: 171 I should also note that during his long period of employment with the respondent there was no history of the applicant's integrity or honesty ever being raised or questioned. I therefore make no adverse finding concerning the integrity or honesty of the applicant. 40 The Commissioner summarised his findings in relation to the s 84 application thus: 172 In summary the respondent had a requirement for the applicant's position to be rotated to Parramatta. I have found that such a requirement was logical based on the needs of the respondent. The applicant had for a considerable period of time been working in accordance with a medical restriction. The applicant had been subjected to a return to work programme. The applicant due to medical restrictions, based on travel did not accept the transfer. I do not believe at that point there was an obligation for the respondent to create an alternative position or displace another employee from his or her position in order to make a position available to the applicant. Alternative employment was considered but not available. The applicant was medically examined and was medically retired.

[37]

173 Taking into consideration all the evidence that came before this Commission I have not been persuaded that the termination of Peter Riley was harsh, unreasonable or unjust. It is therefore my finding that the Commission should not intervene in IRC Matter no. 2003/5317. 41 The Commissioner then considered the application under Pt 7 of Ch 2 of the Act and commenced by setting out a medical certificate from the appellant's treating general physician, Dr Barry Earp, dated 10 November 2003, which was attached to the application: [174]. 42 As the Commissioner noted at [175]: [a]lso attached was a letter from the applicant dated 18 November 2003 applying for his previous position of Regional Inspector based at Gosford or alternatively to another suitable position of a kind eg. (but not limited to) District Coordinator Lismore, subject to the recommendations contained in the attached medical certificate are implemented. Mr. Hatcher for the applicant also stated that a position as an Inspector based at Gosford would be acceptable with back pay. 43 After noting the requirement of s 92(3) of the Act that the employee must provide a relevant certificate, Ritchie C considered the respective submissions of the parties as to whether he could rely on the 10 November 2003 certificate, given that Dr Earp's earlier medical opinion of August 2003 was markedly different: [176]-[180]. 44 The Commissioner held: 181 Section 92 of the Act covers the Application To Employer For Reinstatement Of Dismissed Injured Employee. It is the section that expresses the process for commencement of such an application. It is the medical certificate that the applicant provides that forms the foundation of his application. I note in Cansino v South Western Sydney Health 130 IR 1 at 14 it states: (19) Section 94(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. 182 In my view the relevant medical evidence is not only the medical evidence that commenced the proceedings but any other medical evidence that becomes available. Applicants may file for reinstatement up to 2 years after termination. In 2 years a person's health can change. 183 It is my finding that I am not bound by the medical certificate that commenced these proceedings. I do believe that the legislation allows the Commission to consider any other relevant medical reports. 45 The Commissioner continued: 184 In this application the applicant had sought that he be reinstated to his former position of Regional Inspector based at Gosford. The medical certificate, dated 10 November 2003 attached to this application did not allow the applicant to be located in Sydney on a full time basis. The medical report of Dr. Oldtree Clark, dated March 1 2004 supported that opinion. The medical report of Dr. Lewin dated 31 October 2003 stated that the applicant was fit without restriction. Medical reports from Drs. Parmegiani in 2001,Moorthy in 1999 and Lee in 2000 all recommended that the applicant not return to Sydney.

[39]

46 Ritchie C summarised the medical evidence as follows: 188 The medical certificate dated 10 November 2003 (Dr Earp) centred on the applicant's specific fitness with respect to the position of Regional Inspector and was silent with respect to fitness for any other position. The medical certificate dated 31 October 2003 (Dr. Lewin) stated the applicant was fully fit and had fully recovered. The medical certificate of March 1 2004 (Dr. Oldtree Clark) again only centred on the role of a Regional Inspector, stated that the applicant could carry out the full duties of a Regional Inspector without restrictions but only in his home region. Travel restrictions would apply if the applicant had to travel more than three hours per day in his own time. 47 After noting the requirement of s 92(3) of the Act, with the consequential onus on the applicant, the Commissioner considered the difference between the HealthQuest report of 24 March 2003 and the 31 October 2003 report of Dr Lewin. However, rather than seeking to reconcile the two, the Commissioner noted at [189]: If I accept the medical evidence of Dr. Lewin that the applicant is fit to carry out either of the two positions [District Coordinator Lismore or Inspector based in Gosford] I must then consider whether the respondent has that kind of employment available. As noted previously the applicant and respondent met in February 2004 and investigated the situation of alternative positions without success. Evidence from the respondent showed that there were two Inspectors' positions based at Gosford. These two positions were part of the metropolitan group and therefore were subject to rotation with Sydney/Parramatta. The applicant would therefore be subject to rotation. There were no vacancies in these positions at the time of the hearing. With respect to the position of District Coordinator, Lismore the applicant had previously applied for this position but had been unsuccessful. 48 The Commissioner noted the relevant principle from Cansino v South Western Sydney Health (1999) 130 IR 1 at 13: (18) The provisions of s. 94(3) raises questions as to who bears the onus of establishing whether the employer has employment of the kind so specified in s. 94(2) available. Given the nature of the orders which may be made under s. 94(2) and the resultant burden of any order under s. 94(3) being on the employer, it would seem logical that such onus should fall on the employer. 49 The Commissioner held: 191 Witnesses for the respondent stated that prior to medical retirement that alternative positions were investigated but no employment was available with duties consistent with those to which the applicant was restricted. Mr. Watson for the respondent stated that he was unaware of any vacant Inspector's position at Gosford. As I have noted previously there were only two Inspector positions at Gosford. It is my finding that the respondent had discharged their onus with respect to the availability of an alternative position. I also do not believe that the respondent is obliged to create a new position to accommodate the applicant where a suitable position in accord with any medical restrictions does not exist.

[70]

77 Initially, Dr Casolin found that whilst Mr Riley was fit to work as a Regional Inspector, he would be at increased risk of developing recurrent depression should he be required "to travel an additional 4 hours on 3 or more days per week". Dr Casolin asked to be advised whether this travel restriction could be accommodated. He was subsequently advised that because Regional Inspectors and (included for the first time) Inspectors had to travel, Mr Riley's restrictions meant that he could not perform the tasks of these positions and, therefore, there was no position available for Mr Riley as a Regional Inspector or as an Inspector. On the basis of this advice, HealthQuest issued a report dated 24 March 2003 that stated: HealthQuest has now been advised that as an Inspector Mr. Riley is required to travel, and his restrictions do not enable him to do this. Mr. Riley is currently working in Gosford, however the Authority has advised that he is not carrying out the requirements of his position as a Regional Inspector, which require him to travel and be time flexible. HealthQuest has been informed that there is no position available. Given this information, it is apparent that Mr. Riley is unfit for the full inherent job requirements of an Inspector or Regional Inspector as result of his travel restriction. A certificate to this effect is attached. 78 HealthQuest's report of 24 March 2003 led to Mr Riley's medical retirement. We note that on 10 November 2003, obviously in the context of pending proceedings before the Commission, the appellant attended Dr Earp who provided a medical report stating that Mr Riley was fit to commute to Sydney on no more than two days a week on a monthly basis, he was fit to carry out all the inherent duties of a Regional Inspector, including the travel component and he was capable of the investigation of a fatality provided the deceased was removed prior to investigation. Dr Earp regarded the above conditions as permanent. 79 In relation to the inherent requirements of the job of Regional Inspector and Inspector, Commissioner Ritchie implicitly accepted that, from time to time, persons in these roles were required to be rotated within the industry teams and also between teams. The Commissioner accepted that arising out of this rotation scheme there was a requirement for the appellant's position to be rotated to Parramatta and found that "such a requirement was logical based on the needs of the respondent." We take no different view of the evidence.

[86]

93 We consider that in finding the termination of Mr Riley's employment was not harsh, unreasonable or unjust, Ritchie C erred in that he did not give adequate consideration to whether there was another position that the employer had available. In circumstances of cases such as this, where an employee has been dismissed because of a medical restriction that prevents the employee from fulfilling the inherent requirements of the job and therefore reinstatement may be impractical, before a finding can be made as to whether or not the dismissal was harsh, unreasonable or unjust, there has to be a full and transparent consideration by the Commission at first instance of whether there was a position available that was suitable for the employee, given his or her medical restriction. If such a suitable position was available a finding that the dismissal was not harsh, unreasonable or unjust may not be open. 94 We have deliberately chosen to say that what needs to be considered in relation to an alternative position is that it should be both "suitable" and "available". We have taken these terms from s 89(2). It is trite law that the remedies under Pt 6 of Ch 2, once a dismissal is found to be harsh, unreasonable or unjust, are available in descending order. The primary remedy is reinstatement: s 89(1) (see, for example, Little v Commissioner of Police (No 2) (2002) 112 IR 212 at 243). If that remedy is impracticable the next available remedy is re-employment "in another position that the employer has available and that, in the Commission's opinion, is suitable": s 89(2). If that remedy is impracticable, the final remedy available is compensation: s 89(5). 95 Normally, no consideration will be given to a remedy until the Commission has determined that the dismissal was harsh, unreasonable or unjust: Darren James Anderson v Northern Co-operative Meat Company Pty Ltd (NCMC - Butchering Pty Ltd) (2004) 137 IR 404. This has to be the approach in the present case but in determining whether the dismissal was harsh, unreasonable or unjust we consider that an appropriate test in the circumstances, given reinstatement is impracticable, is to inquire whether the employer had another position available that was suitable given the employee's travel restriction. If the answer to that were in the affirmative and the employer failed or refused to offer such alternative employment, it may be open to find the dismissal was harsh, unreasonable or unjust. An appropriate order in those circumstances might be re-employment pursuant to s 89(2). If no suitable position was available it still may be the case that the dismissal was harsh, unreasonable or unjust because, for example, the employer failed to accord the employee procedural fairness.

[90]

As an Inspector or a Regional Inspector Peter would have to travel and his restrictions do not enable him to complete these tasks, therefore, there is no position available to Peter as an Inspector or Regional Inspector. 99 If, as was the case, Mr Riley had been performing the work of Inspector at Gosford and Tuggerah "for many years" (and from February 2001 under the travel restriction) and had, as an alternative, applied to be employed as an Inspector at Gosford notwithstanding his travel restriction, it is impossible to understand how his travel restriction prevented him from completing tasks as an Inspector at Gosford. It seems that WorkCover wanted Mr Riley to perform the work of a Regional Inspector, the classification for which he was paid, and that WorkCover wanted that role performed at Parramatta and not Gosford. But we can see no basis for contending that Mr Riley was unable to perform the inherent requirements of the job of Inspector at Gosford. 100 In light of the medically imposed travel restriction, as a matter of fairness, it was necessary that WorkCover consider whether Mr Riley could continue to perform the role of Inspector at Gosford. Was such a role available? Because of the rotation policy we accept it may have been necessary to remove Mr Riley from the Construction Team. Was there a position available as an Inspector at Gosford outside the Construction Team? 101 Whilst both Ms Heath and Mr Watson used the word "available" in the context of other positions that Mr Riley was considered for, and Ritchie C also referred to the availability of positions, the critical evidence in this respect was that of Mr Watson (Ms Heath was not called to give evidence). It is quite clear from Mr Watson's evidence that he considered an alternative Inspector's position to be available if it was vacant. Mr Watson was asked the question in cross-examination as to what positions, alternative to that of Regional Inspector, were considered at Gosford. Mr Watson replied: A. We looked at a range of positions that were vacant. There was no inspectorial positions or specialist positions or positions which suited Mr Riley's specialist background. ... Q. [Y]ou said that you did not look at any inspectorial positions at Gosford either. A. We looked at as many positions as were available that suited Mr Riley's background. Q. Well, what were they? A. As I say, there was no inspectorial positions at Gosford. There was one vacancy, which was Mr Riley's vacancy, there was no other vacancies, as I understand it, as I recall it, in Gosford that suited Mr Riley's background. Q. No vacant positions? A. No that is right.

[91]

102 Whether there was a position available is not to be equated to a position being vacant. In Commonwealth Steel Company Limited v Ward (unreported, Matter No IRC 3144 of 1993, 16 December 1994), a Full Bench of the Commission's predecessor (Hill and Hungerford JJ and Sheils CC) discussed the meaning of the word "available" in the equivalent provision to s 89(2) in the Industrial Relations Act 1991 (namely, s 250(2)(a)). The Full Bench held that "available" was not the same thing as "vacant". At 15-18, the former Full Commission stated: The evidence given for the appellant was that there were presently no vacancies in any suitable positions in the light foundry or the bar mill or elsewhere in the works. Mr Crow submitted that the relevant provisions of s 250(2)(a), namely: "another position that the employer has available and that, in the Commission's opinion, is suitable;" should be construed to mean that the other position should be available" in the sense that it was vacant. In the light of the conclusions to which we subsequently come, it is unnecessary to express any final opinion on that matter but we incline strongly to the view that the work "available" where used in the section is not synonymous with the word "vacant". In our opinion, such a construction would give the provisions of s 250(2)(a) very little room for operation and could well render it nugatory in practice. We consider that a construction with that result would be contrary to the objects and purposes manifested in s 250 when construed as a whole and should be avoided if another reasonable interpretation of the provisions is open. That section is designed, as is the whole of part 8 of Ch3 - UNFAIR DISMISSALS, to provide the Commission with jurisdiction to deal with and, in particular, to provide a remedy for cases of harsh, unreasonable or unjust dismissals. Where such a case has been made out, then the Commission has available to it three remedies in what we see as descending order. The primary and most appropriate remedy is reinstatement, as set out in s 250(1). If the primary remedy is "impracticable", then the Commission has then to move to consider the second remedy, namely, re-employment. If that remedy is impracticable, then and then only, does the Commission move to the third and final alternative, namely, an award of monetary compensation which is limited.

[95]

103 In contrast, the Full Bench of the Commission (Hill and Maidment JJ and Buckley C) in Effem Foods Pty Limited t/as Uncle Ben's of Australia v Urban (1998) 81 IR 341 had commented (at 346) that: As we have already observed the power under s.89(2) to order re-employment is limited to re-employment in another position that the employer has available. The section requires the existence of an available and suitable position; it does not authorise the Commission to require an employer to create a position tailored to the abilities of an applicant. The fact that an applicant is physically capable and/or qualified to perform only some functions of a position which the employer has available does not authorise the Commission to require his employment in that position and/or only in those functions of the position which he is capable of performing. Such employment would not be in a position that the employer has available; it would be employment in only part of a position and, in any event, it could hardly be considered "suitable" within the meaning of the section. 104 The correctness of the decision in Effem has been questioned. In Newcastle City Council v Bevan (2001) 120 IR 121 the Full Bench of the Commission (Wright J, President, Walton J, Vice President and Connor C) commented (at 120-121) that: [I]n the present proceedings the respondent in the primary appeal has, in our view, demonstrated that the Full Bench decision in Effem Foods Pty Limited v Urban is arguably incorrect and should, in appropriate proceedings, be reconsidered... 105 More to the point, in IGA Distribution Pty Limited v Moses (No.2) (2002) 114 IR 307, the Full Bench (Wright J, President, Walton J, Vice President and Redman C) commented at 315 that, whilst it was not strictly necessary to address the operation of s 89(2) in detail, the Full Bench made the following observations (albeit obiter) regarding the different approaches in Effem and Commonwealth Steel, coming down in favour of Commonwealth Steel: 27 In Effem , the Full Bench found that s 89(2) limited an order for re-employment to the re-employment of an applicant "in another position" which the employer had available. It was found that the section required the existence of an available and suitable position and did not authorise the Commission to require an employer to create a position "tailored to the abilities of the applicant" (at 346). 28 Submissions were made during these proceedings as to whether a substantive or actual position was required for an order under s 89(2) to be made. We consider that the view of the Full Bench in Effem , was that the proper interpretation of the words "available position" in Effem involved, in substance, the reading of the words of the provision as requiring the position to be vacant, in the sense that there must be a pre-existing, specified position designated by the employer which was vacant. Consistent with the approach adopted in Commonwealth Steel, we consider this is an unduly restrictive construction of the section which may, in an appropriate case, require more substantial reconsideration. 106 It is our view that for the reasons expressed in Commonwealth Steel and Moses (No 2), the approach taken in Commonwealth Steel to the meaning of the word "available" is the correct one and is to be preferred to the approach in Effem. 107 It follows from what we have thus far said that before Ritchie C was in a position to make any determination as to whether the dismissal was harsh, unreasonable or unjust, the Commissioner was required to have satisfied himself there was no suitable position available for Mr Riley. That is, to paraphrase what was stated in Commonwealth Steel, whether "another position was of avail to, capable of being used by, or at the disposal or within the reach of, the employer - whether or not it was vacant at the time."

[119]

(21) Section 94(3)(b) refers to employment of a kind which the Commission considers the employer can reasonably make available for the employee (including part-time employment or employment in which the employee may undergo rehabilitation). That accommodates employment of a kind not currently available and involves a consideration of the position of the employee in terms of physical capacity and underlying expertise, experience, qualifications etc, as well as the ability of the employer to make work of that kind available. In that latter regard, the use of the word "reasonably" would accommodate financial cost to the employer as well as any dislocation, interruption or interference with the manner in which the employer conducts its undertaking and the manner in which the employer deploys its staff; in addition, the usefulness to the employer of the work so arranged to be performed is a relevant consideration. 111 As the Full Bench observed in Cansino, the Commission may make an order reinstating the employee to: (a) employment of the kind for which the employee has applied (which may be as or less advantageous than the pre-injury employment); or, (b) employment of any other kind that is no less advantageous to the employee than that applied for; or (c) employment of any other kind for which the employee is fit, being: (i) employment of a kind that is available but that is less advantageous to the employee, or (ii) employment of a kind that the Commission considers that the employer can reasonably make available for the employee (including part-time employment or employment in which the employee may undergo rehabilitation). 112 We shall look at each of these options in turn but we note that whatever kind of employment is to be considered for the purpose of reinstating the employee, the employee must be fit for the employment. As the Full Bench stated in Cansino, a determination of fitness for employment as referred to in s 94(2) and s 94(3), must necessarily be made on the basis of medical evidence. We also note that, except in relation to employment of a kind referred to in s 94(3)(b), not only must the employee be fit for the employment, but the employment must be "available".

[123]

116 Given the reservations we earlier expressed regarding Dr Earp's evidence, it is inappropriate to place any reliance on the certificate of 10 November 2003, the terms of which had been written by Mr Riley. There is, however, no impediment to relying on the opinion of Dr Casolin. That opinion amounts to this: Mr Riley was fit to undertake the work of Regional Inspector except to the extent he should not be required to travel an additional four hours on three or more days per week because of the risk of a depressive condition re-occurring. 117 We consider it follows that if there was no requirement to travel an additional four hours on three or more days per week, Mr Riley was fit to undertake the work of Regional Inspector based at Gosford and, for that matter, the work of Inspector based at Gosford. As we understand the evidence, there would not be a requirement for Mr Riley to travel an additional four hours on three or more days per week if he were based at Gosford. Accordingly, if there were a position of Regional Inspector or Inspector available at Gosford, it would have been open to Ritchie C to order reinstatement into either of those positions pursuant to s 94(2). In light of our earlier conclusions, however, regarding the unfair dismissal application, we accept there was no Regional Inspector's position available at Gosford. 118 The other position that Mr Riley had applied for was the District Coordinator's position at Lismore. On 15 February 2003 the appellant was advised that his application for that position he had been unsuccessful. Mr Riley had made the application three years previously. The same position was re-advertised and the applicant applied again and was interviewed for the position on 17 March 2003. On 2 July 2003 the appellant applied for a position of Safety Coordinator with the Department of Commerce based at Lismore. The applicant was interviewed and subsequently advised verbally that he had been successful in relation to this position. He was later advised that written confirmation of the offer would not be forthcoming until his appeal with the Medical Appeal Panel had been resolved. On 5 September 2003 the appellant was advised that he had been unsuccessful for the position of Safety Coordinator at the Department of Commerce office at Lismore. On 8 September he received a similar letter from the respondent with respect to a position in Lismore as the District Coordinator. 119 It may be readily inferred that the reason Mr Riley was unsuccessful in his applications for the positions at Lismore was because by the time he received that advice he had been informed he would be medically retired. That is to say, Mr Riley was unsuccessful because based on the advice of HealthQuest, namely, that Mr Riley was "suffering from a health condition that will in all likelihood prove permanent and, as a result you are unable to perform the inherent requirements and job demands of a Regional Inspector and it is likely this will continue for the foreseeable future", it was apparently considered that the appellant was not fit to perform the work of District Coordinator or Safety Coordinator at Lismore. 120 The reason Mr Riley was considered not fit to perform the work of a Regional Inspector was because he should not be required "to travel an additional four hours on three or more days per week". There was evidence from Mr Blake regarding the amount of travel required of District Coordinators to the effect that: In some instances this can involve travel up to six hours a day when the person has to respond to incidents, undertake investigations or attend meetings. 121 In cross-examination, Mr Blake conceded that it was not necessarily the case that a District Coordinator would be required to travel "six hours a day on top of your normal working hours", but that "it may". 122 Mr Watson gave some evidence about the travel demands on Country Inspectors but not specifically District Coordinators or Safety Coordinators (indeed, there was no evidence about the travel demands on Safety Coordinators based at Lismore). Assuming, however, that Coordinators are required to travel as much as Country Inspectors, Mr Watson's evidence was that Inspectors travel very considerable distances and that it was considered that Mr Riley was not fit for such work because on medical advice Mr Riley's health would be endangered. 123 There were two problems with Mr Watson's evidence. Firstly, Mr Riley had sought to be re-located to Lismore, knowing the travel demands that would be placed on him and despite the medical advice regarding travel restrictions. Secondly, Mr Riley's travel restrictions were in the context of regular commuting from Gosford to Sydney, not the intermittent travel engaged in by Country Inspectors some of which was done outside their normal working hours and some of which was done during their normal hours. We do not have the impression from the evidence that the travel burden on Country Inspectors is of the same character as regular daily commuting from Gosford to Sydney, all of which is to be done before and after the daily span of normal hours. 124 We are not satisfied, and we do not consider Ritchie C could have been on the evidence before him, that Mr Riley was not fit to undertake the work of District Coordinator or Safety Coordinator at Lismore, both positions obviously being available at the time of Mr Riley's medical retirement because WorkCover had advertised for those positions to be filled.

[125]

126 As we have already noted, the Full Bench in Cansino said of the word "available" as it is used in s 94(3)(a) and (b) that: Given the contrast with the words used in s 94(3)(b), this would appear to be a reference to work in the nature of particular tasks which can be undertaken in a structured manner consistent with the manner in which the employer deploys staff in the context of the operations of the employer's undertaking. If this be correct, as we think it is, then in determining whether employment of that kind is available one is to have regard to the employer's organisational structure and the way in which the employer operates. That is, one excludes, in considering what work is available for the purpose of s 94(3)(a), the possibility that the employer may have to rearrange the manner in which it operates and deploys its staff in order to accommodate any order made (our emphasis). (21) Section 94(3)(b) refers to employment of a kind which the Commission considers the employer can reasonably make available for the employee (including part-time employment or employment in which the employee may undergo rehabilitation). That accommodates employment of a kind not currently available and involves a consideration of the position of the employee in terms of physical capacity and underlying expertise, experience, qualifications etc, as well as the ability of the employer to make work of that kind available. In that latter regard, the use of the word "reasonably" would accommodate financial cost to the employer as well as any dislocation, interruption or interference with the manner in which the employer conducts its undertaking and the manner in which the employer deploys its staff; in addition, the usefulness to the employer of the work so arranged to be performed is a relevant consideration. 127 In considering the merits of the application for reinstatement in Cansino, the Full Bench relevantly stated, later in its decision: We are quite unable to construe the relevant provisions [of s 94(2)] as requiring the respondent in some way to create or fashion a job or position to accommodate the circumstances of the appellant. If there be no employment of the kind for which the employee has made application for reinstatement as supported by appropriate medical evidence then, in our view, the Commission is required to embark upon the inquiries inherent in considering the matters referred to in s 94(3), the nature of which we have earlier referred to. As we have indicated, this requires an examination of the kind of employment available or which can reasonably be made available by the employer (our emphasis). 128 It is difficult to avoid the conclusion that the Full Bench in Cansino took the view that s 94(3) required a position to be vacant if it was to be regarded as being available. It is not easy to reconcile that apparent conclusion with what was the obvious intention of the Legislature in framing Pt 7 of Ch 2. As the Full Bench itself in Cansino noted, in the second reading speech of the Attorney-General and Minister for Industrial Relations in moving for the enactment of the 1996 legislation (Hansard, Legislative Council, 23 November 1995 at 3849), the Minister stated in relation to the Legislature's intention in respect of Pt 7 of Ch 2: The bill adopts a more flexible approach to the kind of employment to which an employee can be reinstated. This will facilitate the laudable aim of the return to work of injured employees - but it will be balanced against employer interests as it must be employment which is available and for which the employee is fit. It is not intended that orders would be made for employment that is merely of a token nature and does not involve useful work having regard to the employer's operations; or employment that is demeaning in nature, having regard to the nature of the worker's incapacity, education, skills and work experience. It is intended that the meaning of "available" reflect the approach taken by the commission in Commonwealth Steel Company Limited v Ward, Unreported - Matter No. IRC 3144 of 1993. Before leaving the topic of injured workers, I should mention that it is intended that the references to "dismissal" in this part of the bill dealing with the protection of injured workers be capable of applying to instances of "constructive dismissal". 129 In Commonwealth Steel, it will be recalled, the Full Bench took the word "available" in s 89(2) to mean "that another position was of avail to, capable of being used by, or at the disposal or within the reach of, the employer - whether or not it was vacant at the time." Consistent with the view expressed Commonwealth Steel and Moses (No 2), we consider that to equate "available" in s 94(3) with "vacant", is "unduly restrictive". We take that view notwithstanding that Commonwealth Steel and Moses (No 2) were cases concerned with s 89(2) of the Act and we are here concerned with s 94(3). The word "available" is used in the context of re-employment in another position that the employer has available (s 89(2)), or reinstatement to employment of the kind for which the employee has so applied for reinstatement if employment of that kind is available (s 94(2)), or reinstatement in employment of a kind that is available but that is less advantageous to the employee (s 94(3)(a)), or reinstatement in employment of a kind that the Commission considers that the employer can reasonably make available for the employee (s 94(3)(b)). There is no basis, in our view, to construe the word "available" in those contexts as having different meanings, so that in s 89(2) the word is considered to mean something different to "vacant" but in s 94(3) it is considered to mean "vacant". 130 In respect of the reinstatement of Mr Riley in the kind of employment he applied for, namely, Inspector at Gosford, it should be clear from our findings in relation to the unfair dismissal application that the consideration at first instance of whether an Inspector's position was available at Gosford was not adequate. 131 Ritchie C found at [191]: Witnesses for the respondent stated that prior to medical retirement that alternative positions were investigated but no employment was available with duties consistent with those to which the applicant was restricted. Mr. Watson for the respondent stated that he was unaware of any vacant Inspector's position at Gosford. As I have noted previously there were only two Inspector positions at Gosford. It is my finding that the respondent had discharged their onus with respect to the availability of an alternative position. I also do not believe that the respondent is obliged to create a new position to accommodate the applicant where a suitable position in accord with any medical restrictions does not exist.

[127]

134 It is not entirely clear from the evidence what other kind of employment the respondent considered for Mr Riley that he was fit to perform, that was available, and that was no less advantageous to Mr Riley than that applied for (being the Regional Inspector and Inspector positions at Gosford and the Lismore position). Certainly, it is not clear from what the Commissioner stated at [191] that: Witnesses for the respondent stated that prior to medical retirement that alternative positions were investigated but no employment was available with duties consistent with those to which the applicant was restricted. 135 It appears, however, a number of Country Inspector positions were considered but it was deemed that Mr Riley was not fit for those positions because of his travel restriction. It is not clear on the evidence whether or not these Country Inspector positions were no less advantageous to the appellant (there was evidence that if Mr Riley was transferred to Lismore, for example he would retain the terms and conditions of a Regional Inspector even if the position he filled was at a lower grade). Nonetheless, we note that we have already dealt with Mr Riley's capacity to perform the work of District or Safety Coordinator at Lismore on the basis of the travel requirements for Country Inspectors and concluded that we could not be satisfied the appellant was not fit for those positions on the ground of his travel restriction. It must follow that we would reach the same conclusion in respect of employment as a Country Inspector. 136 As to the question of availability, an inference can be drawn from the respondent's evidence, particularly that of Mr Watson, that the respondent equated "available" with "vacant". We consider Ritchie C failed to satisfy himself about whether the respondent meant "available" as distinct from "vacant" when it contended there were no Country Inspector positions available. Employment of a kind that is available but that is less advantageous to the employee

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Cases Cited (15)