Smith v Industrial Relations Secretary in respect of Local Land Services

Background

1. The background to the proceedings can be briefly stated.

Factual context

1. Ms Smith commenced employment with Local Land Services in 2005. At the time of the events giving rise to these proceedings, she was employed as a Senior Land Services Officer ("Position").
2. During the course of her employment, Ms Smith made a number of claims for workers compensation. Relevantly, these included claims made in July and November 2019. In respect of the July 2019 claim, Ms Smith received provisional weekly payments and reimbursement of medical expenses for the period 18 July 2019 to 12 September 2019, from which date the claim was declined. The claim made in November 2019 was declined, although Ms Smith received reimbursement for the cost of two psychologist appointments on what was said by the Industrial Relations Secretary ("Secretary") to be "an ex gratia basis and as a gesture of goodwill".
3. The Secretary submitted on appeal that it was uncontroversial that the injuries the subject of the workers compensation claims were an exacerbation of a pre-existing mental illness which Ms Smith had developed prior to 1 June 2017. This was not challenged by Ms Smith, and we take it as agreed.
4. Ms Smith's employment was terminated on 22 January 2020 pursuant to s 47(1)(b) of the Government Sector Employment Act 2013, on the basis that she was unable to perform the duties of the Position due to her medical and mental incapacity. The letter informing Ms Smith of the termination of her employment was signed by Rob Kelly, the Acting Chief Executive Officer of Local Land Services.
5. Ms Smith commenced proceedings in the Personal Injury Commission, challenging the declinature of the claim for workers compensation that she had made in July and November 2019. On 9 August 2021, the parties entered into consent orders (amended on 25 November 2021) to resolve those proceedings. The effect of the orders was that liability for the claims was accepted; that Ms Smith receive weekly benefits for the period 13 September 2019 to 19 June 2020; and that Ms Smith be paid a stated amount for medical and treatment expenses.
6. Ms Smith twice made requests for reinstatement to employment in the Position, pursuant to s 241 of the WC Act, on 10 August 2021 and 25 November 2021. On each occasion, the request was made by email and was accompanied by a medical certificate prepared by Dr Catherine Bailey, who stated that Ms Smith had been "reviewed and deemed fit" for employment in the Position. Local Land Services informed Ms Smith that it was "unable to accommodate" her request for reinstatement as she did not meet the requirements of the legislation.
7. On 8 December 2021 Ms Smith filed with the Industrial Registry an Application for Reinstatement of Injured Worker, seeking an order pursuant to s 242 of the WC Act that she be reinstated to the Position.

Workers Compensation Act

1. Part 8 of the WC Act is titled "Protection of injured workers from dismissal". It relevantly provides as follows: 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: s 241(1); 2. an "injured worker" is a worker who receives an injury for which they are entitled to receive compensation under, inter alia, the WC Act: s 240(2); 3. if the employer does not reinstate the worker immediately to employment of the kind for which the worker has applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Commission for a reinstatement order: s 242(1); and 4. in proceedings for a reinstatement order 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: s 244(1). That presumption will be rebutted if the employer satisfies the Commission that the injury was not a substantial and operative cause of the dismissal of the worker: s 244(2).

The Decision

1. The proceedings were allocated to Commissioner Muir. On 20 April 2022 the Commissioner made a direction that the matter would proceed to arbitration "but with the preliminary question of jurisdiction to be determined separately first. Medical fitness to return to work and the appropriateness of reinstatement being determined if jurisdiction is found."
2. Consequently, the matter for determination in the proceedings below was whether Ms Smith was entitled to bring the application for a reinstatement order under Pt 8 of the WC Act. The Commissioner identified (at [1] of the Decision) that the "threshold question" to be addressed was whether Ms Smith had been dismissed for a reason that permitted her to make such an application.
3. The Commissioner found (at [51]) that Ms Smith was an "injured worker" for the purposes of Pt 8 of the WC Act. However, he concluded (at [67]) that Ms Smith's compensable injury was not a substantial and operative cause of her dismissal. Rather, he found the "fundamental reason" for the dismissal to be Ms Smith's "underlying medical condition, which was not work-related" (at [63]). The Commissioner ordered (at [80]) that the application be dismissed for want of jurisdiction.

The Application for Leave to Appeal and Appeal

1. On 9 November 2023, Ms Smith filed with the Industrial Registry an Application for Leave to Appeal and Appeal ("Application"), pursuant to s 187 of the Industrial Relations Act 1996 ("IR Act"). Under the heading "Appeal Grounds" the Application included the following: Appeal 1 1. The Commission made an error of law in finding that the submissions of the parties did not fundamentally differ in regards to the legal framework for determining the substantial and operative cause of the Applicants dismissal because this is not supported by the evidence. … Appeal 2 9 The Commission made an error of law by not providing an adequate analysis of the parties differing jurisdictional arguments in regards to determining the substantial and operative cause of the Applicants dismissal. The Commission made an error of law by applying the incorrect statutory test and failing to comply to the objects of the Workers Compensation Act. … Appeal 3 14 The Commission made an error of law in finding that the submissions of the parties did not fundamentally differ in regards to the Applicant's injuries, and specifically determining when compensation was paid, in regards to determining if the applicant was an injured worker at the time of her dismissal, because there is no evidence or adequate reasoning to support the finding. … Appeal 4 24 The Commission made an error of law in correctly finding that at the time of her dismissal, the applicant was an injured worker as a result of injuries which were the subject of the July 2019 Claim and November 2019 Claim but not providing adequate reasoning to support this finding. … Appeal 5 28 The Commission made an error of law in his considerations by providing reasoning for the finding that 'It is clear that the applicant is relevantly an injured worker' that is not supported by the available evidence and incongruent to his earlier findings. … Appeal 6 35 The Commission made an error of law by considering irrelevant factors when determining if the respondent has demonstrated that the injury was not a substantial and operative cause of the dismissal of the applicant. … Appeal 7 39 The Commission made an error of law by making a finding that is outside of its jurisdiction, and without the medical qualifications to do so. 40 The Commissions finding that her; 59)... 'compensable injury does tend to show that the applicant's underlying medical condition made her unfit for her role' … Appeal 8 46 The Commission made an error of law in finding that the fact that the respondent commenced the process to dismiss her prior to the final compensable injury suffered by her was a factor that supported the respondents case because there was not adequate reasoning to support the inference. … Appeal 9 55 The Commission made an error of law in accepting the respondent's evidence that the applicant did not perform her work to a satisfactory level and finding that the applicant was unable to perform her work satisfactorily because there was not consideration of the evidence that challenged this perspective nor was there adequate consideration of the quality and weight of the evidence available, to support the Commissions preferred view. … 62 The Commission does not consider the conflicting evidence produced by both parties or provide adequate reasoning to consider the quality or weight of the available evidence regarding the Applicants work performance. … Appeal 10 64 The Commission made an error of law by finding that the minimal periods that were outside the periods where the applicant was receiving weekly compensation or reimbursement for medical expenses, prior to her dismissal were significant to the respondents case because this was not supported by adequate evidence and reasoning, and is also irrelevant to the proper legal test. … Appeal 11 68 The Commission made an error of law by considering and including evidence that is not relevant to the proper legal test for determining if the respondent has demonstrated that the injury was not a substantial and operative cause of the dismissal of the applicant. … Appeal 12 71 Finally, the Commission has made an error of law, specifically a jurisdictional error, in dismissing the application for want of jurisdiction because the incorrect statutory test was applied and the approach fails to comply with the terms and purpose of the Workers Compensation legislation. …" (Reproduced verbatim)

Leave to appeal

1. Section 188 of the IR Act provides that an appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.
2. There was no controversy between the parties as to the principles governing the granting of leave to appeal. Accordingly, we will not traverse those principles. We confine ourselves to referring to, without reproducing them, the observations of the Full Bench in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 at [10]-[11] and of Walton J in Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association (2022) 320 IR 249; [2022] NSWSC 1178 at [21].
3. Ms Smith's written submission in support of her application for leave to appeal, in summary, contended that leave to appeal should be granted: 1. in respect of grounds 1, 2, 3, 4 and 5, as they raise matters of principle that have wider implications for the jurisprudence of the Commission relevant to the exercise of power under the WC Act, and further, to correct the errors of law made by the Commissioner; 2. in respect of grounds 6, 7, 8, 9, 10 and 11, to correct the Commissioner's reliance on irrelevant factors, and his denial of procedural fairness to the parties; 3. further in respect of ground 7, to correct the error of law that the Commissioner made by making a finding outside of the Commission's jurisdiction, and without the medical qualifications to do so, which also resulted in a denial of procedural fairness; and 4. in respect of ground 12, to correct the jurisdictional error made by the Commissioner in dismissing the application for want of jurisdiction, when that order was the result of the Commissioner failing to apply the correct statutory test and adopting an approach inconsistent with the terms and purpose of the workers compensation legislation.
4. Ms Smith further submitted: "7) The Commission, in the original decision, confirmed that the overall work health and safety regime is designed to minimise workplace injuries, rehabilitate workers who are injured, reduce the financial burden of injuries on workers and maximise the extent to which injured workers return to their pre-injury duties. There are very few claims for reinstatement of injured workers, and yet it is an important component of the overall system. It represents the safety valve for the workers compensation system, helping to keep the system in balance and when all other protection mechanisms have failed, reinstatement offers injured workers a final opportunity to recover and then to be returned to work. 8) …Significant public resources have been invested by the Respondent and the Commission in this case, as well as significant time and resources by the Applicant. The case is aligned to the overall intention of the legislation, and offers an opportunity for significant insights with regards to the interpretation of workers compensation legislation, and it is in the public interest to receive proper analysis and clarification from the Commission. These insights are invaluable for regulatory bodies, insurers, employers, and injured workers that are engaged in work health and safety and the workers compensation scheme in New South Wales. It is crucial that the errors of law that have been identified in the decision are rectified."
5. At the hearing of the Application, Ms Smith argued that grounds 1 to 11 should be seen as having a cumulative effect, which resulted in the ultimate error in Commissioner Muir's finding that the proceedings be dismissed for want of jurisdiction (the subject of ground 12). This was said to support a grant of leave to appeal.
6. In response and in summary, the Secretary contended that leave should not be granted for the following reasons: 1. grounds 1 and 2, and by extension ground 12, take issue with Commissioner Muir's specific analysis of the parties' submissions relating to the application of existing and settled law, in particular the Court of Appeal decision in Bindaree Beef Pty Ltd v Riley (2013) 85 NSWLR 350 ("Bindaree Beef"). The grounds do not raise substantial issues of principle or law. The applicable legal test is well-established, including its application in relation to similar factual circumstances; 2. further in respect of ground 2, Ms Smith contends for an interpretation which ignores principles of statutory construction and misapplies relevant case law; 3. grounds 3, 4 and 5 fail to disclose an error of law in circumstances where Ms Smith accepts that the Commissioner reached the correct conclusion in relation to whether she was an "injured worker". Seeking that the Full Bench acknowledge particular arguments, in circumstances where Ms Smith does not question the correctness of the decision, is not an appropriate basis for an appeal; 4. grounds 6, 7, 8, 9, 10 and 11 relate to concerns which do not have significance beyond these proceedings, namely: 1. allegations of procedural unfairness which relate to the Commissioner's consideration of the parties' specific arguments in this case; and 2. the Commissioner's consideration of the specific circumstances of Ms Smith's case; 1. the Application does not raise issues with wider implications for the jurisprudence of the Commission, nor have any practical application beyond this case; and 2. there is in any event no merit in the grounds of appeal.

Consideration

1. In determining to refuse leave to appeal, we have considered the matters arising under each of the grounds of appeal in the Application. We address those grounds below.
2. Before doing so, we observe that grounds 3, 4, 8, 9 and 10 assert that Commissioner Muir erred by failing to provide adequate reasoning for particular conclusions reached in the Decision. It can be inferred from the relief sought in respect of grounds 1, 2 and 5 that a similar assertion is made in respect of those grounds.
3. In considering these contentions, we are mindful of the observations of McColl JA, with whom Macfarlan JA agreed, in Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 (at [152]) that a tribunal "is not expected to set out every consideration which passes through the decision-maker's mind, although some, and usually the most significant, will be expressly dealt with". In the same case, Emmett AJA observed (at [227]) that it is "not necessary for a decision-maker to expose every step in the chain of reasoning that leads to the conclusion".
4. We also have regard, without reproducing them, to the observations of the Full Bench in Redmond v Director General, NSW Department of Health, on behalf of the Ambulance Service of New South Wales [2012] NSWIRComm 147 at [30]-[40], [48] and [59]-[63], and in Charles v Northern New South Wales Local Health District [2016] NSWIRComm 8 at [22]-[23].

Ground 1

1. This ground of appeal arises from [27] of the Decision, which formed part of Commissioner Muir's analysis as to the approach to be adopted to s 244 of the WC Act. In that paragraph, the Commissioner observed that both parties had taken him to Bindaree Beef. He reproduced extracts from the decision of Bathurst CJ in that case. The Commissioner observed that "[t]he submissions of the parties, although expressed as being in opposition to each other, did not fundamentally differ". It is this statement which Ms Smith contends was in error.
2. In her written submissions, Ms Smith submitted: "There is clearly a fundamental difference in the parties' submissions that is not reflected in the Commissions finding. The Respondent has submitted that the actual reasons for the decision to be considered are wholly the decision-makers subjective reasons for actions, and then determining whether such evidence is reliable. The Applicant does not specify whether the actual reasons need to be subjective or objective but rather that the focus needs to be on why the action was taken." (sic)
3. At the hearing of the Application, Ms Smith accepted (as she had done before Commissioner Muir) that Bindaree Beef set out the approach to be taken to s 244 of the WC Act. She conceded that the Commissioner had followed that approach in the Decision. However, she contended that this was an error. She argued that the Secretary had submitted that the Commission should adopt a "narrower focus" than that described in Bindaree Beef. As the Secretary bore the onus under s 244(2), the Commissioner should have applied the approach for which the Secretary contended rather than applying Bindaree Beef.
4. These submissions represent a misunderstanding of the Commission's function and powers. The Commission is bound to apply the correct legal principles, and to follow Court of Appeal authority, regardless of what might be said to be the submissions of the parties. There was no error in the Commissioner applying Bindaree Beef. Rather, the Commissioner would have erred had he not done so.
5. In any event, we do not see that the distinction which Ms Smith seeks to draw between the parties' positions before Commissioner Muir reveals a "fundamental difference". Both called for the Commission to determine why Ms Smith was dismissed, having regard to all of the evidence. This is reflected in the passages from Bindaree Beef reproduced at [27] of the Decision. As Commissioner Muir went on to say in the Decision: "28. The task for Commission is to determine the respondent's actual reasons. This will require the Commission to consider the reasons the respondent gave, the evidence it brings to the Commission now, and whether, in the totality of the circumstances, that the Commission is persuaded a compensable workplace injury was not a substantial and operative cause of the dismissal. 29. The Commission accepts the applicant's submissions that the Commission would consider the credulity and plausibility of the respondent's case as to the submitted reasons for the dismissal."
6. To the extent that ground 1 asserts that there was an inadequacy in the Commissioner's reasoning regarding the impugned statement at [27] of the Decision, we do not agree. Seen in the context of the totality of the Commissioner's reasoning at [14]-[29] of the Decision, the basis of the Commissioner's statement that the submissions of the parties did not "fundamentally differ" is sufficiently apparent.

Ground 2

1. Ground 2 arises from [28] of the Decision, reproduced at [32] above. The ground asserts two errors: first, that the Commissioner failed to provide an adequate analysis of the parties' differing jurisdictional arguments in regards to determining the substantial and operative cause of Ms Smith's dismissal; and second, that the Commissioner applied the incorrect statutory test and failed to comply with the objects of the WC Act.
2. In respect of this ground, Ms Smith submitted: "The purpose of Part 8 of the Workers Compensation Act is to assist in the rehabilitation of injured workers. The interpretation urged by the respondent, and the approach accepted by the Commission, are inconsistent with the purpose of the Workers Compensation Act because they exclude some injured workers from the benefit of the legislation. In Potter, the Applicant would have been excluded because their injury was determined or agreed to be compensable after they were dismissed. In the present case, the Applicant would be excluded because Mr Kelly was informed during the decision making process that she was not an injured worker, despite having already received compensation for the July 2019 Injury. Both circumstances would be an unfair outcome and contrary to the objects of the WC Act."
3. Ms Smith's submissions did not directly address the first limb of ground 2. In any event, that contention is addressed by our observations in respect of ground 1, having regard to the authorities referred to at [26]-[27] above.
4. The second limb rests on the contention that it would be unfair for Ms Smith, having been found to be an injured worker, to be excluded from bringing an application for reinstatement under Pt 8 of the WC Act. Ms Smith cited Potter v Industrial Relations Secretary in respect of the Department of Regional New South Wales [2022] NSWIRComm 1077 ("Potter") in support of this ground.
5. The Secretary submitted, and we accept, that the interpretation for which Ms Smith contends "would have the effect of nullifying the words 'because he or she is not fit for employment as a result of the injury received' in s 241(1)" of the WC Act. The legislation makes it clear that being an "injured worker" is not of itself enough to entitle that worker to bring a claim for reinstatement. Nothing in Potter displaces, or could displace, the clear and unambiguous terms of the WC Act.

Grounds 3, 4 and 5

1. At [30] of the Decision, under the heading "History of applicant's workplace injuries", Commissioner Muir reproduced extracts from the Secretary's submissions. He went on to observe: "31. For completeness the Commission observes that: (1) the applicant made submissions in response to the those [sic] set out above, but the Commission considers her submissions did not relevantly dispute the substance of the respondent's summary, and the Commission accepts the respondent's summary as correct; and (2) if not otherwise apparent from what is set out elsewhere in these reasons for decision, the correct analysis of the foregoing summary is that at the time of her dismissal, the applicant was an injured worker as [a] result of injuries which were the subject of the July 2019 Claim and the November 2019 Claim."
2. Commissioner Muir proceeded to summarise the cases advanced before him by Ms Smith and the Secretary. Having done so, he observed: "51. It is clear that the applicant is relevantly an injured worker. This follows clearly and inevitably from the final decision relating to her workers compensation claims from July and November 2019. The decision of the Commission in Potter, and the reasons expressed therein, leave no room for doubt on this question."
3. Ground 3 of the Application challenges the conclusion at [31(1)] of the Decision. Grounds 4 and 5 arise from [31(2)] and [51] of the Decision, respectively.
4. Each of the grounds arises from a controversy between the parties as to the nature of the provisional weekly payments and the reimbursement of medical expenses referred to at [7] above ("Pre-Dismissal Payments"). The Secretary had argued that they were not "compensation" for the purposes of the WC Act and, consequently, Ms Smith had not received workers compensation payments in respect of the claims she had made in July 2019 and November 2019 prior to her dismissal. Ms Smith had contended that the Pre-Dismissal Payments were properly characterised as compensation within the meaning of the WC Act. She argued that, as a result, staff at Local Land Services were aware that she was an "injured worker" prior to her dismissal but had not conveyed this to Mr Kelly.
5. In this background, ground 3 of the Application contends that Commissioner Muir erred in concluding at [31(1)] of the Decision that Ms Smith "did not relevantly dispute the substance" of the Secretary's submissions. On a proper reading of the Decision, no such error can be seen.
6. The extract from the Secretary's submissions reproduced at [30] of the Decision did not include reference to the Pre-Dismissal Payments. At [31(1)] the Commissioner observed that Ms Smith had made submissions in response to "those set out above". His conclusion that she did not "relevantly dispute the [Secretary's] summary" must be read as being confined to the reproduced passages.
7. Grounds 4 and 5 contend, in effect, that in finding Ms Smith to be an injured worker, Commissioner Muir should have included in his reasons the fact of the Pre-Dismissal Payments and a finding that they constituted workers compensation payment. It is important to observe that the Commissioner's finding that Ms Smith was an injured worker is not challenged on appeal. Two matters arise.
8. First, the Commissioner was otherwise satisfied on the point. It was unnecessary for the Commissioner to address the controversy between the parties as to the status of the Pre-Dismissal Payments. As the Secretary submitted, a determination as to whether the Pre-Dismissal Payments amounted to workers compensation or not would not have affected the Commissioner's finding.
9. Second, grounds 4 and 5 do little more than seek an acknowledgement of arguments run at first instance which have no bearing on the outcome. That is not an appropriate basis for an appeal.
10. To the extent that grounds 4 and 5 also assert that Commissioner Muir erred in failing to provide adequate reasoning for his finding that Ms Smith was an injured worker, we disagree. The conclusions expressed at [31(2)] and [51] of the Decision must be seen in the context of the Commissioner's reference to ss 240 and 241 of the WC Act at [9]-[10] of the Decision, his analysis of Potter at [21]-[26], the submissions reproduced at [30] and the conclusion at [31(1)]. The basis on which the Commissioner determined that Ms Smith was an injured worker is apparent.

Alleged denial of procedural fairness

1. In her written submissions, Ms Smith submitted in respect of grounds 6, 7, 8, 9, 10 and 11 that: 1. the case before the Commissioner had been run on the basis that the threshold issue was to be determined on the subjective reasons of the decision-maker; 2. however, at [28] of the Decision (reproduced at [30] above), the Commissioner stated that the task for the Commission was to determine the "actual reasons" for the dismissal, and set out what this would require the Commission to consider; 3. this indicated a movement away from the subjective reasons of the decision-maker to a consideration of a "broader legal framework", that was different to those put forward by either party; and 4. Commissioner Muir did not give the parties notice of his intention to apply this broader framework which resulted in a denial of procedural fairness.
2. To a large extent, the matters arising from these submissions have been addressed in our consideration of ground 1.
3. Further, at [14]-[20] and [27]-[29] of the Decision, Commissioner Muir clearly articulated the approach to take to the onus on the Secretary under s 244(2) of the WC Act. The task for the Commissioner was to determine why Ms Smith was dismissed, having regard to the evidence before him. The distinction that Ms Smith seeks to draw between the decision-maker's "subjective reasons" and the "actual reasons" for the dismissal is both artificial and not reflective of the Commissioner's reasoning.
4. Further, as the Secretary submitted, the Commissioner did not apply a "broader legal framework" which was different to that put forward by either party. In the proceedings below, the Secretary led a significant amount of evidence as to the circumstances surrounding Ms Smith's dismissal. He made detailed submissions regarding the approach to s 244(2) of the WC Act and as to why the relevant surrounding circumstances supported the evidence of Mr Kelly as to his reasons for dismissing Ms Smith. Ms Smith responded in detail to those submissions.
5. In these circumstances, we do not agree with Ms Smith's submission that she was denied procedural fairness by Commissioner Muir.

The controversy before the Commissioner

1. It was not in dispute before Commissioner Muir that Ms Smith suffered from work- and non-work-related injuries. The primary contest before Commissioner Muir was whether, as Ms Smith asserted, she was dismissed as a result of her work-related injuries, or, as the Secretary contended, on the basis of non-work-related injuries.
2. Each of grounds 6, 7, 8, 9, 10 and 11 challenge elements of the approach adopted by the Commissioner to resolve that controversy. The grounds and the submissions advanced in support of them frequently call for extracts from the Decision to be read in isolation from the totality of the Commissioner's reasoning.
3. For this reason, and to provide context to our decision, it is necessary to set out more completely the Commissioner's consideration of this issue (excluding passages in respect of which nothing arises on appeal): "Was the applicant dismissed because she was an injured worker? 52. Whether the applicant was dismissed because of the compensable injury she received is a more complex issue. 53. It was the applicant's case that, other than for very short periods, the only legitimate complaints about her capacity for work arose from her workplace injuries. While she conceded there were short periods where her underlying medical condition detrimentally impacted her work performance, it was her case that she was otherwise a high performing employee who completed her work and behaved and responded appropriately in the workplace. 54. The Commission does not accept this is a fair or accurate summary of the underlying facts. 55. The Commission accepts the evidence of the respondent's witnesses, supported by a wide range of documentary evidence, that even outside periods where the applicant suffered from a workplace injury, she did not perform her work to a satisfactory standard for an employee of her grade, and that she was unable to cope with the unexceptional day-to-day requirements and stressors of her role. Further, her responses placed unreasonable and exceptional burdens on her colleagues. The Commission observes that there was no sense in which it was apparent that the applicant had reflected on her conduct as being unreasonable, even in retrospect. … 57. It is clear that the original source of her inability to cope in the workplace was not work related. It should be observed that ultimately the applicant's claim that she suffered a psychological injury in the workplace was accepted, and accordingly the Commission must and does accept that she suffered such an injury. 58. However, it is fundamental to observe that the July and November 2019 injuries were sustained respectively: (1) during an annual performance development plan meeting with her manager; and (2) flowing from her response to receiving letters from the respondent commencing a process considering her dismissal. 59. It is clear from the evidence given that the annual performance development plan meeting was conducted by her manager in a manner which was completely reasonable. That such a meeting could result, and it is not disputed that it did, in a compensable injury does tend to show that the applicant's underlying medical condition made her unfit for her role. … 62. The Commission also observes that, as submitted by the respondent, the respondent had already reached the conclusion that it had a basis to ask the applicant to show cause why she should not be dismissed because of her health by the time that the applicant sustained the November 2019 injury. 63. The Commission has concluded that the fundamental reason the respondent dismissed the applicant was her underlying medical condition, which was not work-related. 64. It is nevertheless clear that the respondent was aware at the time of the dismissal of both the applicant's previous workplace injury, and that she had claimed to have suffered further injuries, albeit they had not then been accepted. Can the respondent credibly claim that these can be divorced from the reasons for the applicant's dismissal? 65. Against the respondent are the following factors: (1) most obviously is that the applicant was an injured worker, and some scepticism should be exercised in divorcing that injury from the reasons for dismissal; and (2) the effects of the applicant's workplace injury exhibit similar features as to her capacity for work as her underlying illness. 66. In favour of the respondent are the following factors: (1) the extensive history of the applicant's underlying illness, its ongoing nature, and that it clearly was not a work related illness; (2) the extensive and compelling evidence that the applicant was unable, for extensive periods, to perform her work satisfactorily, including as to volume of work, management time taken and her own self-reported levels of stress, for reasons that were not compensable; (3) the applicant's focus, including during these proceedings, on alleged failings by the respondent to follow the respondent's Non-Work Procedure as to her dismissal, and the respondent's alleged failure to provide her with 'reasonable adjustments' pursuant to State and Commonwealth disability legislation. Clearly, neither of those claims related to any workplace injury; (4) that the applicant made submissions that the respondent was biased against her in the process of her dismissal because she was experiencing mental illness; (5) that the terms of the letter dismissing the applicant were expressed to be based on a statutory provision that depends on illness and not injury; and (6) that the respondent commenced the process to dismiss her prior to the final compensable injury suffered by her. 67. In balancing these factors, the Commission has concluded that it is satisfied that the applicant's compensable injury was not a substantial and operative cause of her dismissal. The respondent's case is substantial, detailed and persuasive. The applicant's attack on that conclusion ultimately relies on a coincidence of events. 68. While it is not without some doubt, on the balance of probabilities the Commission is relevantly satisfied."

Ground 6

1. Ground 6 alleges that Commissioner Muir erred by having regard to "irrelevant factors". The ground was said to relate to the matters raised at [53]-[54] and [66(1)], [66(3)] and [66(4)] of the Decision.
2. The ground is misconceived. The matters referred to in the passages challenged by Ms Smith are relevant to the determination of the primary contest between the parties identified at [54] above.
3. Further in respect of [53]-[54] of the Decision, the Secretary submitted before Commissioner Muir that Mr Kelly's decision to dismiss Ms Smith related to her inability to perform her role outside the "closed periods" for which she had received workers compensation payments. He also submitted that Mr Kelly's view was supported by "overwhelming evidence" that Ms Smith "could not perform the inherent requirements of her role because of her non-work related mental illness rather than any of the alleged work-related injuries". These submissions are reproduced at [46] of the Decision. In light of these submissions, the relevance of the matters raised at [53]-[54] of the Decision is clear.

Ground 7

1. This ground arises from [59] of the Decision. Ms Smith asserted that the Commissioner erred in making a finding outside of the Commission's jurisdiction and without the medical qualifications to do so. She further submitted that the finding was "irrelevant when the proper legal test is applied".
2. The observations of Commissioner Muir at [59] are directed towards the controversy before him as to the basis of Ms Smith's dismissal. The Commissioner recognised the existence of both a work-related injury and a non-work-related "underlying medical condition". Ms Smith's contention that the Commissioner's conclusion is irrelevant cannot be sustained.
3. The Secretary's case before Commissioner Muir was that Ms Smith's underlying medical condition rendered her unfit to perform the inherent requirements of her role, and this was the basis of her dismissal. In support of his position, the Secretary led evidence of the requirements of Ms Smith's role, the circumstances in which the injuries resulting in the July 2019 and November 2019 workers compensation claims arose, and that there were concerns with Ms Smith's behaviour and performance outside of periods in which she received workers compensation payments. This evidence is summarised at [41]-[45] of the Decision and is reflected in the extracts from the Decision reproduced at [56] above.
4. The conclusions expressed by the Commissioner at [59] of the Decision were the result of him weighing the evidence and submissions before him. Such an exercise does not call for medical qualifications and is not a matter of "jurisdiction". It is an inherent feature of the Commission's role in all matters requiring the exercise of the Commission's arbitral functions.

Ground 8

1. This ground arises in part from the observations at [62] and [66(6)] of the Decision. Ms Smith submitted that Commissioner Muir failed to provide adequate reasoning to explain how the matters referred to in those paragraphs supported the Secretary's case.
2. We reject these submissions, for two reasons. First, the Commissioner's reasoning is apparent as a matter of logic. The fact that the Secretary had commenced the process to dismiss Ms Smith prior to the injury giving rise to the workers compensation claim in November 2019 suggests that that injury was not a substantial and operative cause of the decision to dismiss.
3. Second, the submissions do not reflect the entirety of the Decision. At [48] Commissioner Muir reproduced extracts from the Secretary's submissions which set out, at pars 110-111, what the Secretary contended to be the significance of the evidence on these matters. The Commissioner's observations at [62] and [66(6)] must be read as reflecting, and accepting, those submissions.
4. Ms Smith also drew attention to [66(5)] of the Decision. She asserted that Commissioner Muir had not provided adequate reasoning to explain why that factor supported the Secretary's case.
5. Once again, Ms Smith's submissions do not reflect a reading of the Decision in its entirety. The matter identified at [66(5)] was one of a number of factors that the Commissioner identified as being in favour of answering the question at [64] in favour of the Secretary.
6. In his written submissions on appeal, the Secretary submitted: "78. Similarly, the fact that the exercise of Mr Kelly's power under s 47(1)(d) of the GSE Act depended on the Appellant's 'mental incapacity' (rather than any 'injury received') being the reason for her inability to perform the duties of her role is an important and relevant consideration. As was submitted by the Respondent below, the words 'mental incapacity' in s 47(1)(d) of the GSE Act refer to a quality or state of being of the Appellant. These words do not refer to harm or damage sustained as a consequence of an act or event, the ordinary meaning of the word 'injury' as it is used in s 241(1) of the WC Act. The exercise of Mr Kelly's power being dependent on the Appellant suffering from 'mental incapacity' therefore supported Mr Kelly's evidence that the decision was based on the Appellant's underlying mental illness, rather than any discrete compensable injury received."
7. In light of the primary contest between the parties, as identified at [54] above, the relevance of the matter identified at [66(5)] of the Decision is apparent. Further, the basis on which the Commission considered that matter to be "in favour of" the Secretary is sufficiently clear in the context of the Decision as a whole.

Ground 9

1. Ground 9 asserts error at [55] of the Decision, in the Commissioner's acceptance of the Secretary's evidence that Ms Smith "did not perform her work to a satisfactory standard for an employee of her grade". The ground also challenges the Commissioner's reliance at [66(2)] on the "extensive and compelling evidence that [Ms Smith] was unable, for extensive periods, to perform her work satisfactorily". Ms Smith submitted that this was an "irrelevant and unsupported factor".
2. In many respects, ground 9 is addressed by our observations in respect of ground 6. Having regard to those observations, we reject the submission that the matters referred to at [55] and [66(2)] of the Decision were irrelevant to the question Commissioner Muir was required to determine.
3. We do not accept Ms Smith's contentions that Commissioner Muir "did not consider the conflicting evidence" or that there was an absence of "adequate reasoning" in the Decision. At [33(2)] of the Decision, the Commissioner referred to Ms Smith's evidence that she had produced a high standard of work and had an excellent performance record. The Commissioner summarised the evidence led by the Secretary in respect of Ms Smith's performance at [43] and [45]. Submissions made by the Secretary in respect of Ms Smith's performance were reproduced at [47] of the Decision. The Commissioner summarised Ms Smith's case in respect of her performance at [53]. The conclusion at [55] was the result of the Commissioner weighing up the parties' cases on this point.

Ground 10

1. Ground 10 rests on the words "that even outside periods where the applicant suffered from a workplace injury" at [55] of the Decision. The ground asserts that the Commissioner erred in finding that "the minimal periods that were outside the periods where [Ms Smith] was receiving weekly compensation or reimbursement for medical expenses, prior to her dismissal were significant to the [Secretary's] case".
2. Ms Smith submitted that the finding was "not supported by adequate reasoning", was "considered with a lack of procedural fairness" and was "ultimately irrelevant to the current legal test". We do not accept those submissions.
3. The words challenged by Ms Smith need to be considered in the context of the paragraph, and the Decision, as a whole. The Commissioner's observation has relevance for the reasons set out above in respect of grounds 6 and 9. Further, having regard to the matters at [73] above, Ms Smith's contentions that there was a lack of adequate reasoning and a denial of procedural fairness cannot be sustained.

Ground 11

1. This ground contends that Commissioner Muir erred by taking into account irrelevant considerations. These were identified as: 1. [33(10)]-[33(12)] of the Decision, in which the Commissioner summarised certain submissions advanced by Ms Smith. These were to the effect that she had been denied procedural fairness in the termination of her employment; that the Secretary had failed in his duty of care to her in sending her letters proposing her dismissal without undertaking an appropriately detailed risk assessment; and, the dismissal was a continuation of the discrimination and bullying behaviours to which she had been subjected during her employment; 2. [47] of the Decision, in which the Commissioner reproduced extracts from the Secretary's submissions; and 3. the Commissioner's reproduction at [50] of the Decision of some of Ms Smith's written submissions in reply.
2. Ms Smith further submitted that these matters were "considered with a lack of procedural fairness".
3. The Secretary accepted that the matters referred to at [33(10)]-[33(12)] of the Decision were not relevant to the question of whether a compensable injury was a substantial and operative cause of Ms Smith's dismissal. However, he did not accept that simply referring to these matters amounted to error, as there was no reference to them in the Commissioner's reasoning. We accept those submissions.
4. In the Decision at [33]-[50], Commissioner Muir summarised Ms Smith's case in chief, that of the Secretary and Ms Smith's case in reply. He reproduced extensive extracts from the written submissions of both parties. His determination of the question before him was dealt with under the heading "Consideration" from [51]-[69], in which the Commissioner made clear the evidence on which he had relied to reach his conclusion. The matters referred to at [33(10)]-[33(12)] do not appear in that reasoning.
5. The Secretary's submissions reproduced at [47] of the Decision related to Ms Smith's non-work-related illness. These matters were relevant to the Commissioner's resolution of the primary contest between the parties identified at [54] above.
6. In relation to [50] of the Decision, Ms Smith submitted that Commissioner Muir erred by reproducing certain parts of her submissions in reply, on the basis that they were "not relevant to the current legal test". The grounds those submissions traversed included challenges to the evidence of Mr Kelly and the nature and cause of Ms Smith's injuries. These matters are clearly relevant to the question that Commissioner Muir was required to address.
7. Further, we do not accept that Ms Smith was denied procedural fairness as a consequence of the Commissioner reproducing her own submissions, or those of the Secretary to which she had an opportunity to, and to which she did, respond.

Ground 12

1. Ground 12 asserts that Commissioner Muir erred by dismissing her application for reinstatement for want of jurisdiction. Ms Smith submitted that the Commission should "apply the proper legal framework and ensure the decision upholds the intention of the legislation to minimise workplace injuries, rehabilitate workers who are injured, reduce the financial burden of injuries on workers and maximise the extent to which injured workers return to their pre-injury duties".
2. In large part, this ground is addressed by our observations regarding the other grounds of appeal, particularly at [37]-[38] above in respect of ground 2. For those reasons, we do not accept that Commissioner Muir adopted the incorrect test. We consider that the Commissioner understood the intention of the legislation, noting that the words that Ms Smith uses to describe that intention are in fact drawn from the Decision itself (at [12]).
3. This ground does nothing more than express disagreement with the outcome of the Decision. It does not disclose error.

Conclusions

1. For the reasons set out in this decision, we find that Ms Smith has not demonstrated appellable error in the Decision. We accept the following submissions made by the Secretary at the hearing of the Application: "Once it is accepted, as it has been done by Ms Smith this morning, that Commissioner Muir correctly identified and applied the correct legal test, what is really in essence the grievance of Ms Smith is either a lack of adequacy of reasons or the particular application of the test to the specific circumstances of the case. Then in my respectful submission, that does not make it an appropriate vehicle to grant leave to appeal."
2. We find that the Application does not raise substantial issues of law and principle, or have implications for the wider jurisprudence of the Commission, to adopt the language of Walton J in Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association at [21]. Consequently, we are not persuaded that the Application raises any matter of such importance that, in the public interest, leave to appeal should be granted.

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: 08 March 2024