Sonja Mulder v NSW Department of Trade & Investment

The Evidence

1. The Applicant relied on her Statement and Statement in reply filed 27 February 2014 and 29 April 2014 respectively.
2. The Respondent relied on the Statement of Steven Mullins filed 14 April 2014 and on a bundle of documents containing summonsed material from the insurer, including material from the two rehabilitation providers who dealt with the Applicant and the medical reports of Dr Lorraine Jones dated 29 November 2013 and Dr Greg Schneider dated 28 July 2012.

Background

1. It was alleged by the Applicant that she sustained an occupational overuse injury to her neck, shoulders, back and arms on 6 August 2006 as a result of repetitive keying and use of the computer mouse in the course of her employment with the Respondent.
2. The Applicant was absent from work for the period from 24 November 2011 to 16 January 2012 owing to an exacerbation of that injury.
3. On 17 January 2012, the Applicant returned to work subject to the following medical restrictions which remained unchanged throughout 2012: a. Working 5 hours per day; b. Not using the keyboard for more than 5 minutes; c. Not using the mouse. She was deployed to undertake modified duties at The Star Casino.
4. During 2012 the Respondent attempted to adopt work practices that would enable the Applicant to undertake her substantive duties notwithstanding her medical restrictions. The Respondent implemented Suitable Duties plans with the assistance of an external rehabilitation provider, Keystones Professionals Pty Ltd.
5. On 7 February 2013, following receipt of a medical report from Dr Potter (dated 6 December 2012), the Respondent directed the Applicant to return to her substantive position and hours of work, effective 18 February 2013. In its letter, the Respondent cited a summary of the report upon which it relied: 1. Your diagnosis is 'regional pain disorder' and the condition is "chronic". 2. There is no "structural or physical cause for pain, rather the pain correlates with musculoskeletal tensions and tightness". "There was no physical injury present". 3. Your diagnosis "is not work related". 4. There is a "high correlation with this diagnosis to mood/personality change, motivational change and behavioural upset". 5. "She is fit to work normal hours, normal duties". 6. "She has received advice for physiotherapy. As part of case management none such is required". 7. "It is in the best interests of the patient to reassure her that she is physically well". 8. "Any restrictions ongoing are constitutional, motivational, behavioural".
6. On 20 March 2013, the Applicant was instructed once again by the Respondent to return to her substantive position or, alternatively, to provide the Respondent with a signed declaration outlining her reason, supported by medical evidence, for not returning to her substantive position.
7. On 28 March and 4 April 2013, the Applicant advised the Respondent by email correspondence, in reply to arrangements made to facilitate her return to her substantive position, of her intention to return to her substantive position to the best of her abilities, subject to current medical restrictions and any decision that may flow out of separate proceedings lodged before the Workers Compensation Commission.

Proceedings before the Workers Compensation Commission

1. On 7 August 2012 the insurer, Allianz, issued a s 74 notice declining liability for the claim for medical expenses, and in particular, those associated with physiotherapy the Applicant had received.
2. On 29 August 2012, the Applicant lodged an Application to Resolve a Dispute in the Workers Compensation Commission ("WCC") involving expenses for treatment pursuant to s 60 of the Workers Compensation Act 1987 ("WC Act").
3. On 30 January 2013, the insurer issued a further s 74 notice declining liability altogether and advising that weekly payments would cease from 13 March 2013.
4. On 9 August 2013, the WCC Arbitrator handed down a decision awarding the Applicant's claim having found, on reviewing all medical evidence, that the onus of proof had been discharged. In determining the cause of the injury, the Arbitrator [at 79] preferred the evidence of the Applicant's treating doctors over medical reports considered by the Department: Dr Potter did not, in my view, take an adequate history of the applicant's work duties nor did he really consider the question of whether the applicant had, in the past, upper limb neural tension, thoracic and cervical pain and stiffness and acute "flare-ups" of her bilateral epicondylitis. I found the opinions of Dr Bertouch and Dr Dalton, together with that of Dr Hirschowitz, far more persuasive. I note that Dr Bertouch had seen the applicant on several occasions and Dr Hirschowitz saw her regularly and was in a better position, in my view, to make a diagnosis and comment on causation.
5. The Arbitrator found at [85]: On the facts of this matter and on consideration of the relevant authorities cited, I find that the injury to the applicant arose out of and in the course of employment and that there was a causal relationship between the injury and the work that the worker was required to do, that is, there was a causal connection with her employment. I am satisfied that her employment was a substantial contributing factor within the meaning of section 9A of the 1987 Act.
6. The Arbitrator noted that the proceedings related to past expenses up to the determination and dealt with the matter on that basis. However, the Arbitrator pointed out that should the Applicant wish to pursue a claim for ongoing expenses, the matter would need to be referred to an Approved Medical Specialist for assessment. The Applicant was given liberty to apply should she wish to pursue that course. The Respondent did not seek to disturb or appeal the findings made by the WCC Arbitrator.
7. It is understood that the Applicant received workers compensation entitlements from the insurer for the period March to August 2013 for which she had submitted WorkCover medical certificates.

Decision to dismiss

1. On 16 September 2013 the Applicant was issued with a letter from the Respondent advising that, in accordance with the department's legislative obligations, in particular the Work Health & Safety Act 2011 and NSW Workers Compensation Act 2012, … a determination has been made that no suitable duties are available from today's date being the 16th September 2013. This determination is based on the fact that the medical restrictions are not reasonably practicable to business requirements moving forward. The department's 'People Learning & Culture' branch has explored alternative duties in other internal business units. However there are no present job vacancies to match transferable skills and current medical restrictions. It is evident that any available vacancies at your substantive grading require significant administrative, clerical duties involving keyboard and mouse usage which is in direct conflict to your medical recommendations.
2. The letter also advised that: As the department is formally withdrawing suitable duties, if you wish to remain on Workers Compensation entitlements, the WorkCover claims agent - Allianz, will be responsible for any ongoing wage entitlements. You should discuss this directly with your nominated Allianz case manager, especially relating to the WorkCover transitional rates of pay.
3. The letter further advised that the Respondent would be making a formal request to Allianz to ensure that the Applicant received a minimum 12 week vocational retraining/redeployment program provided by a NSW WorkCover accredited rehabilitation provider with job seeking expertise to provide the Applicant with the best opportunity to obtain alternative employment: At the end of the twelve week vocational retraining/redeployment program being 6th December 2013, if you have not been able to successfully obtain alternative employment, the department will review the medical evidence in consideration of medical retirement from your substantive position in accordance with 'Section 25 of the Public Sector Employment & Management Act 2002'.
4. The 12-week redeployment program concluded without the Applicant obtaining alternative internal or external employment. Accordingly, the Department assessed the Applicant for medical retirement pursuant to s 25 of the PSEM Act, on the basis that the Applicant's medical condition restricted her from completing the full inherent requirements and demands of her substantive position.
5. On 20 December 2013 the Respondent wrote to the Applicant to advise her of its decision. The contents of the letter read: This letter is to advise you that the department has now reviewed the various medical reports and certificates, and it has been determined that your medical condition will unfortunately restrict you from completing the full inherent requirements and demands of your substantive position. In view of these circumstances a decision has been made to process an immediate medical retirement as prescribed within section 25 of the NSW Public Sector Employment & Management Act 2002. In the event that your medical condition improves within 2 years of the date of your termination you are entitled to write to the department requesting a medical review to consider possible reinstatement. Any reinstatement would be conditional on your ability to undertake the full inherent requirements of your substantive position and availability of a vacant and suitable employment position at your current substantive grading. Your manager has been advised to make suitable arrangements with you, in order to coordinate last day of duty requirements. The corporate operations payroll unit will be advised to calculate and process any final and outstanding entitlements.

The Applicant's case

1. The Applicant's primary submission was that she was not seeking to readdress the medical findings determined by the Workers Compensation Commission. She was seeking a finding that her employment was terminated unfairly on the basis of the Respondent's conduct leading up to the termination. She relied on the following bases: A. Her wages were withheld during the period 17 September 2013 to 2 January 2014; B Her sick leave payments were withheld during the period 17 September 2013 to 2 January 2014; C. She was placed on leave without pay without consultation with her, advice to her or her consent; D. Her final entitlements were withheld during the period 17 September 2013 till 2 January 2014 E. The Leave loading she accrued from December 2012 till the receipt of her final entitlements was not provided; F. No weekly "allowance" was provided to her until 16 December 2013; G. No vocational assistance was provided; H. Her right to select her own vocational assistance provider was ignored; and I. The medical grounds upon which the Respondent based its decision to terminate her employment were not disclosed to her.
2. The Applicant contended that, contrary to the Respondent's evidence, she was "placed on leave without pay without my application, knowledge or consent" on 16 September 2013.
3. The Applicant contended, by way of correspondence on 28 March 2013 and 4 April 2013, that she was ready, willing and able to return to her substantive position subject to a handover of her duties from the acting employee. It was indicated to the Respondent that she sought to return to her substantive duties to the best of her abilities. However, she stated in her email of 4 April 2013: It is my understanding that my employer is responsible for my safe and durable return to work, to this end the Department has many resources, including almost 7 years of documented, established and accepted medical evidence and I understand, a duty of care. By directing me to provide a statement regarding my medical status, I perceive that the Department intends to reassign responsibility for my return to work to me. I perceive this to be wholly inappropriate and as outlined in the letters dated 7 February 2013, 20 March 2013…constitute an unreasonable request.
4. The Applicant argued that the return to work plans implemented by the Respondent were not suitable. In particular, the Applicant sought to assert her right to nominate an external rehabilitation provider for the purpose of vocational assistance and submitted that the failure by the Respondent to provide that option constituted "unfairness". It was submitted that ultimately no vocational assistance was provided to her in the 12 weeks prior to her termination, contrary to the Respondent's letter, dated 16 September 2013, communicating that such assistance would be provided.
5. Implicit in the Applicant's reply statement was the alleged failure by the Respondent to implement proper procedures to ensure that there were proper grounds for her medical retirement.
6. On that basis and on the basis that the Respondent allegedly failed to provide reasons for her medical retirement, the Applicant contended that her dismissal was harsh, unreasonable and/or unjust.

The Respondent's case

1. The Respondent submitted: a. The Applicant's income was not withheld. Although the Respondent could have terminated the Applicant's employment at any time (as the statutory protection under the workers' compensation legislation protecting an employee from termination had expired), it continued to employ the Applicant for one year and 8 months after she returned to work with medical restrictions. At the end of that period, it provided the Applicant with an opportunity, over the following 12 weeks, to seek alternative employment. The Applicant did not embrace that opportunity, nor did she keep the Respondent informed of issues she was having with the insurer. When Mr Mullins became aware of those issues, he followed them up with the insurer. If there was unjustified delay by the insurer in processing the Applicant's workers compensation entitlements (which was not clearly established) it did not relate to the Applicant's income, and the Respondent did not withhold the payments. b. The Applicant was aware that she was on leave without pay from at least 3 October 2013. The Applicant had not established any entitlement to sick leave. c. The Respondent was entitled to medically retire the Applicant with effect from 16 September 2013. Placing her on leave without pay was a benefit to the Applicant. She had not established on what basis she was entitled to be consulted about medical retirement, given the lengthy period of management of her injury prior to that date. d. The Applicant accepted that she did not have an entitlement to be paid her final salary after being placed on leave without pay. e. Payment of her leave loading occurred in the ordinary course [on 3 December 2013]. f. There was no evidence of what weekly "allowance" was payable (unpaid) until 16 December 2013. g. The lack of vocational assistance occurred when the Applicant refused to co-operate with Pinnacle, refused to sign a consent form to allow contact with her NTD, and sought an alternative provider. The Applicant had not established the source of the alleged "right" to seek her own rehabilitation provider, but in any event her actions had the effect of severely limiting the likely effectiveness of the rehabilitation provider. Further that service was provided through the insurer and Mr Mullins' unchallenged evidence was that, although the employer had the right to raise issues with the insurer, the employer had no control over the insurer. The Applicant had not approached the Respondent to advise of any issues. It was not conceded that there was unfair conduct by the insurer but even if there was, there was no connection between such unfair conduct of the insurer and the respondent.
2. The Respondent noted that there was no direct attack on the foundation of the decision, or the procedures adopted to implement the decision, to medically retire the Applicant.
3. In response to the contention that the Applicant's income was withheld during the period 16 September - 20 December 2013, the Respondent pointed out that ss 38 and 38A of the Workers Compensation Act (as at September 2012) ("WC Act") were in effect during that period. The Applicant was being paid workers compensation entitlements while she was on "leave without pay". It was contended that the Applicant had known she was on leave without pay, at least from 3 October 2013.
4. The Respondent submitted that the Applicant had also failed to adduce evidence as to her suitability to return to her substantive position, which is a necessary requirement in determining whether an order for reinstatement should be made.
5. The Respondent submitted that, notwithstanding any procedural deficiencies that may give rise to unfairness (see Paul Antonakopoulos v State Bank of New South Wales [1999] NSWIRComm 328), medical retirement was the inevitable outcome given her medical history and the restrictions that were still in place which meant that she continued to be unable to perform the duties of her substantive position and given that there was no other suitable employment: cf Warren v Department of Education [2009] NSWIRComm 1032.
6. It was submitted in particular that during the relevant period (when the Applicant was on leave without pay and was receiving workers compensation entitlements), there was no income withheld, no entitlement to sick leave and any issues relating to the provision of "vocational assistance" was the responsibility of the insurer.
7. In conclusion, it was submitted that the application should be dismissed on the following grounds: 1. The Applicant was subject to medical restrictions preventing her from performing the duties of her substantive position; 2. There was no other suitable employment equivalent to her substantive position; 3. The actions of the Applicant limited the likely effectiveness of "support" provided by the rehabilitation provider (nominated by the insurer).

The issues

1. There are four issues for consideration by the Commission: 1. Was the decision to medically retire the Applicant "unfair" (that is, was the dismissal harsh, unreasonable or unjust); 2. Can the Applicant be reinstated to her former position, given her medical restrictions (if any remain); and 3. Are there any other positions that are available/suitable for the Applicant in the circumstances?

Legislative relief options available to the Applicant

1. Sections 241 and 242 of the WC Act provide: 241 Application to employer for reinstatement of dismissed injured worker (cf IR Act, s 92) (1) If an injured worker is dismissed because he or she is not fit for employment as a result of the injury received, the worker may apply to the employer for reinstatement to employment of a kind specified in the application. (2) The kind of employment for which the worker applies for reinstatement cannot be more advantageous to the worker than that in which the worker was engaged when he or she first became unfit for employment because of the injury. (3) The worker must produce to the employer a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement. 242 Application to Industrial Relations Commission for reinstatement order if employer does not reinstate (cf IR Act, s 93) (1) If an employer does not reinstate the worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for a reinstatement order. (2) An industrial organisation of employees may make the application on behalf of the worker. (3) The Industrial Relations Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured worker was dismissed.
2. The Respondent had advised the Applicant, in the retirement notice of 20 December 2013, of her rights pursuant to the reinstatement of injured workers provision of the WC Act: In the event that your medical condition improves within 2 years of the date of your termination you are entitled to write to the department requesting a medical review to consider possible reinstatement…
3. The Respondent repeated, at the conclusion of the first day of hearing, that the Applicant was "put on notice" of the existence of that right, stating: The applicant cannot use the unfair dismissal provisions in the Industrial Relations Act 1996 to circumvent the requirements under the workers compensation legislation provisions.
4. The Commission, as currently constituted, also pointed out to the Applicant that she had two legislative options under which she could apply for relief.
5. The Applicant did not wish to pursue reinstatement pursuant to the WC Act at the appropriate time. She elected, instead, to pursue the option of s84 relief on the basis that she believed that she had been subjected to "targeted, systematic, institutionalised unfair conduct over a period of two years and culminating in the unfair termination" of her employment on 20 December 2013.
6. She considered that the Respondent's decision to unilaterally medically retire her constituted a dismissal within the meaning of the IR Act: Robinson v Commissioner of Police [2014] NSWIRComm 35.
7. As the Applicant has yet to make a formal application to the employer for reinstatement pursuant to s 241 of the WC Act, the jurisdiction of the Commission is not enlivened to deal with any application for reinstatement under Pt 8 of the WC Act.
8. The Applicant elected to have her dismissal dealt with pursuant to s 84 of Part 6 of Chapter 2 of the IR Act on the basis that the employer had "dismissed" her in circumstances she considered "harsh, unjust or unreasonable".

Consideration

1. In considering whether the dismissal of the Applicant was harsh, unjust or unreasonable, the Commission may take into account, where appropriate, the matters set out in s 88 of the IR Act: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re- employment with the employer, and (f) such other matters as the Commission considers relevant.

Failure to give reasons

1. The Applicant submitted that she was unfairly terminated as she had not been provided with any written reasons for her dismissal.
2. The 20 December 2013 termination letter, attached to the Applicant's s 84 application, relevantly stated: This letter is to advise you that the department has now reviewed the various medical reports and certificates, and it has been determined that your medical condition will unfortunately restrict you from completing the full inherent requirements and demands of your substantive position In view of these circumstances a decision has been made to process an immediate medical retirement as prescribed within section 25 of the NSW Public Sector Employment & Management Act 2002. In the event that your medical condition improves within 2 years of the date of your termination you are entitled to write to the department a medical review to consider possible reinstatement. Any reinstatement would be conditional on your ability to undertake the full inherent requirements of your substantive position and …
3. Section 25 of the PSEM Act provides: 25 Incapable officer may be retired (1988 Act, s 36) If: (a) an officer is found to be unfit to discharge or incapable of discharging the duties of the officer's position, and (b) the officer's unfitness or incapacity: (i) appears likely to be of a permanent nature, and (ii) has not arisen from actual misconduct on the part of the officer, or from causes within the officer's control, the appropriate Department Head may cause the officer to be retired.
4. In my view the termination letter of 20 December 2013 provided the Applicant with a reason for her dismissal - the fact that her "medical condition" restricted her from completing "the full inherent requirement and demands of her substantive position". She had been referred to the relevant section of the PSEM Act albeit the provision (s 25) was not reproduced in the termination letter. The letter provided that the decision was made on "the various medical reports and certificates" albeit it did not identify which reports and certificates. In evidence, it was identified that the Respondent relied on those produced by the Applicant, particularly during the period April to August 2013. She would, therefore, have been aware of their contents. The requirement of s 88, in my opinion, has been satisfied.
5. S 25 of the PSEM Act does not impose any requirement on the Department to justify its decision to medically retire an employee. It merely needs to ensure that the requirements of subsections (a) and (b) of s 25 are satisfied.
6. Accordingly it must be determined on the evidence before the Commission, whether it was open to the Respondent to arrive at the conclusion that it did as a result of its consideration of the said medical reports and certificates.

Return to work plans

1. The Respondent provided evidence as to the attempts it made to have the Applicant return to her substantive position. Mr Mullins stated: [21] In light of the complexities and history of the Applicant's claim I determined that a referral to a WorkCover accredited rehabilitation provider would be of assistance for her injury management and return to pre-injury duties… in or around February 2012 the Applicant's case was referred to Keystones Pty Ltd ("Keystones"). Keystones is a rehabilitation provider. Keystones were requested to provide an initial assessment and assist with the ongoing management of this claim. ]22] … [23] On 22 March 2012 Keystones completed their 'Suitable duties plan 1' which outlined that the Applicant would trial her pre-injury duties within her medical capabilities. [24] On 22 March 2012 the Applicant responded to Keystones by indicating that she was not willing to participate in the 'Suitable Duties Plan 1'. I found the Applicant's response to be peculiar, given the fact that I had agreed to fund the voice activated software. It is not often that an injured worker rejects a reasonable offer and this again caused me great concern. It was apparent that the Applicant did not understand the efforts and resources that were being invested, in order to achieve a successful return to her substantive duties…. [25] … [26] The suitable duties that were being offered at the Casino (pursuant to a plan completed by Keystones) involved the Applicant completing as I understood them to be basic, low level administrative tasks including such things like front counter reception, site induction, attendance sign in, filing and photocopying. It was evident that these tasks were at a Clerk 1-2 grading level being paid on or about $50,000 and not comparable to the Applicant's Clerk 8 salary of approximately $90,000. [27] At the conference on 28 March 2012 the Applicant informed me that she had commenced using "Dragon voice activation software" to perform her duties however she reported that there were technical issues with the software. The Applicant was advised that IT helpdesk assistance was available, and she should contact them immediately. [28] … [30] On 4 July 2012 another case conference was held at the Casino. This case conference was attended by the Applicant, Paul Rose (PSA Union Delegate), Ms O'Shea and I. The parties noted that the Applicant had failed to obtain any physical improvement during her holiday even though she had a significant break from employment, and the Department had provided "low level suitable duties" via work at the Casino since January 2012 without any long term improvements. [31] At this conference in July 2012, the Applicant indicated that she was still experiencing difficulties with the Dragon Software and it significantly impacted on her productivity. The Applicant reported that the issues were not IT based, rather the software was not understanding her voice, and subsequently was making numerous errors.
2. Evidence was given as to the "inappropriateness" of the various Return to Work programs that the Respondent had prepared for the Applicant throughout 2012. The Applicant submitted: it is neglected that in the referral to an external rehabilitation provider that the departmental delegate and the external rehabilitation provider each failed to advise me of my right to choose my rehabilitation provider. In retrospect, I think this demonstrates intent to treat me unfairly.
3. It is noted that the complaint that the Applicant was not allowed to select her rehabilitation provider in 2012 was not raised directly with the Respondent, and the issue was not ultimately pressed at the hearing.
4. I should note that in relation to nominating a rehabilitation provider for the purposes of implementing any such return to work programs, cl 20 of the Workers Compensation Regulation 2010 (the WC Regulation) provides: 20 Nomination in programs of approved providers of workplace rehabilitation services (1) A return-to-work program must, if the return-to-work guidelines so require, nominate an approved provider of workplace rehabilitation services (or a list of such approved providers) for the purposes of the program. (2) Consultation on the nomination of an approved provider of workplace rehabilitation services is to be carried out in such circumstances and in such manner as the return-to-work guidelines may provide.
5. Section 20 of the WC Regulations provides that consultation on the nomination of an approved rehabilitation provider is to take place. The Respondent opted for Keystones as an external rehabilitation provider without consultation with the Applicant. The Applicant did not take issue with the appointment at the relevant time. Whether that action constituted "unfairness" is not a question to be determined in these proceedings as it had no part to play in her ultimate dismissal.
6. It was the Applicant's evidence that she held discussions with the Respondent in July 2012 as to the possibility of permanent alternative roles with modified duties.
7. The Applicant accepted that she was to return to her pre-injury duties by October 2012, some 11 months after the date of exacerbation of her injury. Nevertheless she was unable to do so. The physical requirements of Ms Mulder's substantive position required fairly constant use of a keyboard and mouse. She was notified that permanently modified duties could not be provided to accommodate her existing medical restrictions.
8. The Applicant submitted in the course of oral submissions: So even though yes I was aware of it and I did understand that that is what happened, it doesn't change the fact that I don't actually think that it was fair. I don't think that it was an option that was fully explored and it certainly wasn't done so in a formal capacity.
9. The Applicant contended that there was no formal procedure upon which it was determined whether her duties could be permanently modified in acknowledgement of her medical restrictions. While I acknowledge that the evidence does not indicate that the issue as to suitable positions had been explored at length, it would appear that the Applicant had accepted the Respondent's view as at October 2012.
10. Ultimately, while the Applicant had raised issues regarding the Respondent's attempts to implement a return to work plan that was suitable to her having regard to the relevant medical restrictions, it is apparent that the Applicant had not improved despite the implementation of various Return to Work plans.
11. The Applicant submitted she was able to return to her substantive duties as at March 2013. In her 4 April 2013 correspondence to the Department she replied: As has been my intention since reporting for work on 18th of February 2013, I don't see any reason to wait until the proposed date 4 April 2013. I would appreciate a handover with Troy for this purpose.
12. The Applicant alleged that Mr Mullins had referred her non-compliance with the return to work direction made on 18 February 2013 to industrial relations. There does not appear to be any evidence of that nature before the Commission apart from email correspondence on 2 April 2013 to Mr David Greenhouse, Chief Executive, who was not called to give evidence. It is also noted that Mr Mullins was not cross-examined on the issue.

Procedures and medical retirement

1. The Respondent submitted that notwithstanding any procedural issues as to the correct application brought before the Commission, the Applicant had adduced no evidence to counter the Respondent's decision to medically retire her, nor the procedures adopted in implementing that process.
2. The medical evidence and reports, as referred to in the 20 December 2013 correspondence, appeared to be based on her medical condition and restrictions as described in the WorkCover medical certificates. While it was acknowledged that the termination letter did not specify which of the medical reports had been taken into consideration in arriving at the decision to medically retire the Applicant, the evidence suggests that the Respondent had relied primarily of the WorkCover certificates submitted by the Applicant herself and on Dr Potter's medical report.
3. In response to Mr Mullins' evidence, the Applicant submitted: "the 'independent' reports paid for by the employer and or the insurer were disregarded by the Workers Compensation Commission, nonetheless, the respondent has relied on these exclusively throughout his statement, resulting in a very unbalanced account and these were also used exclusively as the basis to treat me unfairly for an ongoing period leading up to my unfair termination."
4. The Applicant pointed out that in addition to those WorkCover medical certificates, there were multiple medical reports commissioned in 2006-2012 that could have been considered by the Respondent. The Applicant held the view that Dr Potter's report was irrelevant and should not have been considered by the Respondent in coming to its decision to medically retire her bearing in mind that the WCC had 'disregarded' it in arriving at its findings and determination. The Applicant contended that an aspect of "unfairness" revolved around the Respondent not having provided her with any of her medical reports, including Dr Potter's report, which, as has been stated earlier, she contended that she was not aware of until after the commencement of these proceedings. She ultimately conceded that she had read Dr Potter's report prior to the proceedings as it had been provided to her by her treating doctor.
5. It is implicit in the Applicant's contentions that it was "unfair" for the Respondent to have relied on certain medical evidence, particularly on Dr Potter's report, in reaching the decision to medically retire her.
6. The Respondent accepted that, to the extent relevant, the medical findings outlined in Dr Potter's report were overturned by the WCC determination. The Respondent submitted: The employer could no longer say well, look, we actually prefer Dr Potter's position, we don't think that you have a work related injury and it needs to be managed in that way, in a way other than through the workers compensation handling and of course, Mr Mullins's evidence shows that he effectively handed that issue off from a roundabout March 2013 until August 2013 where the workers compensation hearing effectively said to the employer well, no, you're wrong, with some caveats we find that at least historically Ms Mulder was entitled to those benefits, you have to now take account of her medical certificates again.
7. The Respondent's primary contention is that it based its decision on the relevant medical evidence before it, being the Applicant's medical certificates submitted up until August 2013, all of which contained the same medical restrictions as had been in place in 2012. The Respondent submitted: … On this key issue, they continued to impose a restriction that prevented her from fulfilling her substantive duties and so what the employer was presented with was an employee who since January 2012 had been unable to fulfil the inherent requirements of her position, had been provided with significant support in being able to get back to a position where she could, that support had failed, where there had been examined already the potential of alternative positions but the reasons Mr Mullins gives, those were not identified so there was nothing alternative that she could be offered and presented with a situation which pointed really in the direction of medical retirement.
8. It was submitted on behalf of the Respondent that: The effect of the WCC decision in August 2013 was that the respondent once again had to recognise the applicant's medical restrictions, and determine whether alternative duties were available. Having regard to a. The fact that the same medical restrictions remained in place as existed in 2012; b. The unsuccessful efforts made in 2012 to return the applicant to her substantive position; and c. The unavailability of any suitable positions in which the applicant could be placed. The respondent concluded that: (i) The applicant continued to be unable to perform duties of her substantive position; and (ii) it could not offer the applicant suitable employment.
9. The Respondent's decision to medically retire the Applicant was arrived at following a review of the medical reports/certificates available to it. The Applicant challenged the dismissal on the basis that it was unfair to rely on those medical reports/certificates. However, no evidence of such unfairness was adduced in these proceedings.
10. The WorkCover certificates considered by the Respondent were supported by the medical evidence that was before the WCC. The Respondent's decision was based on the fact that the permanency of the Applicant's injury, as evidenced by the relevant medical records, precluded her from carrying out her substantial duties.
11. Having regard to the medical evidence, which was largely unchallenged (save as to any discrepancy elucidated from the separate WCC proceedings), there was no evidence to suggest that it was not open to the Respondent to cause the Applicant to be medically retired pursuant to s 25 of the PSEM Act.
12. The Applicant's medical evidence confirmed that, at the relevant time the decision was made, the Applicant continued to be subject to medical restrictions which precluded her from performing all the duties associated with her substantive position.

Entitlements and sick leave

1. The Applicant contended that she was informed of the contents of the letter of 16 September 2013 on her last day at work. Hence, the argument that her "final entitlements were withheld 17 September 2013 till 2 January 2014".
2. The letter had the effect of formally withdrawing suitable duties and placing the Applicant on leave without pay.
3. The following exchange took place during cross-examination: Q. In saying that were you intending to convey to the Commission that you were entitled to be paid your final entitlements on 17 September? A. My understanding is final entitlements are due as soon as possible after the last day of service and my last day of service for 16 September. Q. Well on what basis do you say that your last day of service was 16 September? A. That was the last day that I was at work. Q. But you were told on 2 October that you were on leave without pay? A. That's right. … Q. Did you want to convey to the Commission that you were unaware that you were on leave without pay for the whole time between September and December 2013? A. What I would like to convey to the Commission is that I was placed on leave without pay without any advice, without my knowledge and without my consent and I think that is improper practice and it certainly is unfair in the context of all of the rest of the conduct that I was subject to.
4. The Applicant acknowledged that she was aware that she was placed on leave of absence without pay from 3 October 2013.
5. The Applicant accepted that she was in receipt of relevant workers compensation entitlements throughout the period she was on leave without pay.
6. In addition, the Applicant had engaged in paid casual employment during the period 3 October 2013 to 20 December 2013.
7. I accept the Respondent's submission that the Applicant had not established that she had accrued any entitlements during the period 3 October 2013 to 20 December 2013.
8. The Respondent submitted that it was "open to the respondent to medically retire the applicant on and with effect from 16 September 2013" pursuant to s 25 of the PSEM Act and, therefore, the fact that the medical retirement did not occur until 20 December 2013 was "a benefit" for the Applicant.
9. The Respondent contended that the applicable version of the WC Act was that which applied as at September 2012, namely, prior to the implementation of the Workers Compensation (Amendment) Act 2012. The amendment Act had the effect of repealing ss 38 and 38A of that version on which the Respondent relied. Those provisions read: 38 Partially incapacitated workers not suitably employed - special initial payments while seeking employment (1) Entitlement If: (a) a worker is partially incapacitated for work as a result of an injury, and (b) the worker is not suitably employed during any period of that partial incapacity for work, the worker is to be compensated in accordance with this section during each such period as if the worker's incapacity for work were total. (2) Maximum period of entitlement The maximum total period for which the worker may be so compensated is 52 weeks. (3) Rate of compensation When a worker is so compensated, the compensation is payable at the relevant rate prescribed by this Act for the period of incapacity concerned. However, after the first 26 weeks of incapacity, the rate is the greater of the following rates: (a) 80% of the worker's current weekly wage rate (that is, 80% of the rate prescribed by this Act for the first 26 weeks of incapacity), (b) the statutory indexed rate (that is, the rate prescribed by this Act for a period of incapacity after the first 26 weeks). (4) Worker to seek suitable employment Compensation is not payable to a worker in accordance with this section during any period unless the worker is seeking suitable employment during that period (as determined in accordance with section 38A). 38A Determination of whether worker seeking suitable employment (1) Application This section provides for the determination of whether a worker is seeking suitable employment for the purposes of section 38 and section 52A (Discontinuation of weekly payments after 2 years). (2) General requirements The worker is not to be regarded as seeking suitable employment unless: (a) the worker is ready, willing and able to accept an offer of suitable employment from the employer, and (b) the worker has supplied the employer (or the insurer who is liable to indemnify the employer) with a medical certificate with respect to the worker's partial incapacity for work, being a medical certificate that is in or to the effect of a form approved by the Authority, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in determining what is suitable employment for the worker, and (c) the worker has requested the employer (or such an insurer) to provide suitable employment or it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of suitable employment from the employer, and (d) the worker is taking reasonable steps to obtain suitable employment from some other person. Taking reasonable steps to obtain suitable employment includes seeking or receiving rehabilitation training that is reasonably necessary to improve the worker's employment prospects. (3) Notice of requirement relating to obtaining suitable employment from other person The requirement under subsection (2) (d) does not apply unless the worker has been notified of the requirement in accordance with this subsection. Such a notice: (a) must be given in writing by the insurer or self-insurer concerned, and (b) must state that the worker is required to take reasonable steps to obtain suitable employment from some other person in order to remain entitled to compensation under section 38, and (c) may set out particular reasonable steps that can be taken by the worker in order to satisfy that general requirement, and (d) is subject to, and must comply with, any regulations and (subject to the regulations) any claims procedures notified by the Authority to insurers and self-insurers, and (e) does not constitute an admission of liability by an employer or insurer under this Act or independently of this Act. The requirement under subsection (2) (d) does not apply, and a notice is not to be given under this subsection, while action is being taken by or on behalf of the employer to arrange or explore the possibility of suitable employment with the employer. (4) Notice not applicable when proceedings pending etc If proceedings relating to the payment of compensation under section 38 or to the discontinuation of weekly payments under section 52A are before the Commission or the insurer or self-insurer has denied liability to pay any such compensation: (a) a notice is not to be given under subsection (3), and the requirement under subsection (2) (d) applies without any such notice being given, and (b) particular steps to satisfy that requirement that are set out in a notice previously given do not restrict the determination of the matter by the Commission. (5) Workers treated as not seeking suitable employment A worker is not to be regarded as seeking suitable employment if the worker has unreasonably refused an offer from any person of suitable employment or necessary rehabilitation training. A worker is also not to be regarded as seeking suitable employment if the worker: (a) unreasonably refuses to have an assessment made of the worker's employment prospects, or (b) unreasonably refuses to co-operate in procedures connected with the provision or arrangement of suitable employment or rehabilitation training under the employer's return-to-work program. (6) Court orders An order of the Commission relating to the weekly payment of compensation: (a) may be subject to conditions relating to the worker taking reasonable steps to obtain suitable employment during any weekly payments under section 38, and (b) may include directions relating to the adjustment of the amount of weekly payments under section 38 for any future period of payments under section 40 when the worker obtains employment or when the period for payments under section 38 comes to an end. (7) Definitions In this section: employer of a worker who is partially incapacitated for work means the employer liable to pay compensation to the worker in respect of the incapacity or, if there are 2 or more such employers, the employer so liable who last employed the worker. refusal of an offer or to do a thing includes a failure to accept the offer or to do the thing. rehabilitation training means training of a vocationally useful kind, and includes vocational re-education, work-trials, workplace rehabilitation services or treatment provided by way of rehabilitation. suitable employment means suitable employment within the meaning of section 43A.
10. The Applicant did not make any submissions in response to that aspect of the Respondent's submission. It appears ss 38 and 38A of the WC Act had been amended and repealed respectively by the time the Respondent provided the 16 September 2013 letter to the Applicant. There does not appear to be any transitional or savings provisions within the WC Act in relation to either of those provisions.
11. That is supported by correspondence from Allianz to the Respondent dated 24 January 2014 which confirmed that the Applicant was "currently in the second entitlement period" pursuant to the current s 38 of the WC Act.
12. However, it was noted that s 48 of the Workplace Injury Management and Workers Compensation Act 1998 (the WIMWC Act) applied. Section 48 provides: 48 Return to work obligations of worker (1) A worker who has current work capacity must, in co-operation with the employer or insurer, make reasonable efforts to return to work in suitable employment or pre-injury employment at the worker's place of employment or at another place of employment. (2) For the purposes of this section, a worker is to be treated as making a reasonable effort to return to work in suitable employment or pre-injury employment during any reasonable period in which: (a) the worker is waiting for the commencement of a workplace rehabilitation service that is required to be provided under an injury management plan for the worker, or (b) the worker is waiting for a response to a request for suitable employment or pre-injury employment made by the worker and received by the employer, or (c) if the employer's response is that suitable employment or pre-injury employment will be provided at some time, the worker is waiting for suitable employment or pre-injury employment to commence.
13. It is apparent that the workers compensation entitlements received by the Applicant were subject to the obligations imposed by s 48 of the WIMWC Act. Further, s 32A of the WC Act and s 49 of the WIMWC Act provide that employer obligations with respect to return to work do not apply where it is "not reasonably practicable to provide employment". The evidence reveals that was the case as at September 2013.
14. There is no need to comment on the Respondent's contentions as to the relevant provisions of the WC Act as they have no bearing on the present case. Under the relevant legislative framework, the Respondent withdrew suitable duties and the Applicant continued to receive workers compensation entitlements up until 29 January 2014. The Applicant, in my view, has failed to discharge her obligations pursuant to s 44B of the WC Act.
15. Accordingly, I find that the Respondent did not "withhold" any relevant entitlements and any rights as to sick leave have not been established.

Was the medical retirement "unfair"

1. The evidence indicates that, notwithstanding the lack of detailed reasons in support of the Respondent's decision, the reason for the dismissal was due to the Applicant being medically unfit to carry out her substantive duties as evidenced by WorkCover certificates submitted by the Applicant which indicate the degree of permanency of the injury as at September 2013.
2. I note the approach of the Full Bench of the Commission in New South Wales Technical and Further Education Commission v Valda June Kerrison [2004] NSWIRComm 369, in considering the operation of s 20 of the TAFE Act 1990, which is in equivalent terms to s 25 of the PSEM Act. The Full Bench said at [47]-[50]: 47 TAFE made the following submission: In our submission the appropriate construction of the expression "cause to be retired" is "to bring about" or "give effect to" the termination of that person's employment on the grounds of a disability identified by s20. It follows that the direction by Dr Willmott to Ms Walshaw via Ms Gallagher "to terminate her as at close of business today" was simply giving effect to or causing the "retirement" as identified in s20 to take place. The nature of the decision making process which is involved in these circumstances is simply, the preconditions having been made out and accepted by the decision maker, to then take steps to have the retirement brought about or, to use the words of the statute, "cause the member to be retired". The process required no formality nor any additional decision making processes, save that which were necessary to comply with s20. 48 We agree with that submission. In our opinion, without straining the ordinary meaning of "may cause", these words mean "to bring about". 49 The discretion to take steps to bring about the medical retirement of a particular employee arises once the conditions in ss 20(a) and (b) are met. Given that the basis for the exercise of the discretion is a medical opinion, it is a discretion one would expect would normally be exercised in favour of retirement if the pre-conditions in ss (a) and (b) of s 20 have been satisfied. 50 In our view, the way that we have approached the proper construction of s20 is confirmed by considering the purpose of the statute. It seems clear why the legislature has expressed itself this way. The TAFE Managing Director or delegate has no relevant expertise to make a finding as to medical fitness or incapacity. The delegate or decision maker adopts a finding as to fitness and acts upon it to cause the member to be retired. This is entirely unexceptional. It would seem to us, unnecessary and needlessly bureaucratic for that finding to have to be made twice, or, as submitted by Ms Kerrison, if the member unsuccessfully appeals against the medical finding, three times.
3. The Full Bench further noted at [62]-[65]: 62 Although TAFE's procedure was far from what could be considered best practice, the evidence demonstrates that what was done in the present matter by Dr Willmott was effectively "to cause" the termination of Ms Kerrison's employment by reason of medical retirement by Dr Willmott instructing Ms Gallagher to have Mrs Walshaw execute the decision… 63 We do not interpret s 20 as requiring any particular or formal process, such as the preparation of a document recording a formal consideration of medical information regarding an employee's fitness or capacity for duty. We are satisfied that the taking of administrative steps to give effect to a document which, on its face, indicates that the criteria for retirement have been satisfied, is evidence that TAFE caused Ms Kerrison's retirement within the meaning of s 20 of the TAFE Act… 64 If the appropriate delegate of the managing director, in this case, Dr Willmott, receives a certificate which includes all the findings necessary under s 20, as was the case here, then, his action of instructing the termination process to take place is in accordance with s 20. Dr Willmott was quite directly and unequivocally causing the member to be retired. We do not accept, on a proper reading of the section that Dr Willmott was required to make a separate finding of unfitness, permanency of the condition and absence of misconduct…. There is nothing in the statute that requires the issuing of an additional form or any further procedure to be undertaken.
4. Further, the Respondent had provided various resources to the Applicant, including access to vocational assistance from an accredited rehabilitation provider. It was submitted that the Respondent had sought to disrupt communication and any vocational assistance offered by Pinnacle, the rehabilitation provider chosen by the insurer in conjunction with the Respondent's request as set out in the 16 September 2013 letter. The evidence indicates otherwise. It indicates that any issue as to the lack of vocational assistance during this period stemmed from the Applicant's lack of cooperation, particularly in providing consent to contact her Nominated Treating Doctor. It would also appear that any "rights" in relation to choice of a rehabilitation provider extends only to return to work programs developed in consultation between an employer and a union.
5. While the Respondent's approach in implementing medical retirement could have been better managed, I do accept that, as at September 2013, it was entirely open for the Respondent to view the Applicant as medically unfit to carry out her substantive duties given that she continued to provide medical certificates confirming her inability to fulfil the duties attached to her substantive position.
6. The Applicant knew, at least from 2 October 2013, that she was on "leave without pay" and that she continued to receive the relevant workers compensation entitlements from the insurer. The Applicant's income was, therefore, not "withheld" by the Respondent. Further, the Applicant was not entitled to sick leave during the said period.
7. It was entirely open to the Respondent to determine on 20 December 2013, in the absence of any indication from the Applicant as to re-employment internally or externally, that she was medically unfit to perform her substantive duties.
8. In conclusion, it was open to the Respondent to cause the Applicant to be medically retired pursuant to s 25 of the PSEM Act.

Whether re-instatement or suitable employment is available

1. S 88(1) and (2) of the IR Act require the Applicant, in seeking reinstatement, to adduce evidence that reinstatement to her substantive position is practicable. Alternatively, for the purposes of re-employment, evidence must be adduced that there is a suitable position for the Applicant to perform.
2. The Respondent relied on the decision in Terrence Hickey and Coles Supply Chain Pty Limited [2012] NSWIRComm 1010 as authority for establishing the relevant preconditions to be met by an Applicant in order to exercise relevant rights as to reinstatement pursuant to Pt 8 of the WC Act. It was submitted that the Applicant cannot use the unfair dismissal provisions to circumvent the applicant's failure to satisfy those preconditions (most notably medical evidence establishing the applicant's fitness to perform her substantive duties). I disagree.
3. The Applicant may initiate proceedings under the unfair dismissal provisions of the IR Act to seek reinstatement as a primary remedy. However, the Applicant is required to establish that reinstatement is practicable. A vital element in determining that question is whether the Applicant is fit or otherwise able to perform the duties of her substantive position.
4. The Applicant did not adduce any evidence to indicate she was fit or otherwise able to perform her substantive duties - the basis for her medical retirement. It therefore goes without saying that it would be impracticable to re-instate her to her substantive position.
5. For the purposes of determining whether an order for re-employment can be made, it must be determined whether there are suitable positions available into which the Applicant may be deployed.
6. The letters provided to the Applicant on 16 September 2013 and 20 December 2013 clearly state that there were no suitable employment opportunities matching her "substantive grading", skills and medical restrictions. The 16 September 2013 letter provided further that any available vacancies required "significant administrative, clerical duties involving keyboard and mouse usage", which would conflict with the Applicant's medical restrictions.
7. Critically, there was no evidence led by either party as to the availability or otherwise of suitable duties within the Department. Nevertheless, it is the Applicant who bears the onus of proving that she was capable of undertaking suitable duties and that such suitable duties, given her restrictions, were available within the Department.
8. The Applicant submitted that the "Dragon" voice technology, which was trialled briefly in April 2013, had been "successful". The Applicant inferred that such technologies, if implemented at present, could provide the means by which she could undertake the duties of her substantive grading. She submitted: Well I think it's great that he has acknowledged my capability for work and yes I was using voice activated software and I think that that is a comment that reflects that I do have capability for work and it is recognised by the respondent and it is not consistent with the respondent's actions to terminate my employment on medical grounds given my capability. … … I just felt that it was an acknowledgment of the fact that obviously with the voice activated software and that support that I was capable writing you know information and using a computer which is the whole purpose of that software.
9. However, the evidence before the Commission indicated that the Applicant had complained to the Respondent that the Dragon Voice technology was not efficient enough to allow her to perform her substantive duties consistently. Further, the Applicant had given evidence to the effect that the voice activated technology was "not a solution because it was not advanced enough to cope with the workload of my substantive position." Accordingly, the availability of voice-activated software is not an adequate solution in the present circumstances.
10. The Respondent gave evidence of its efforts in 2012 to return the Applicant to her substantive position and the unavailability of any suitable positions for the Applicant.
11. Mr Mullins gave evidence that: The current arrangement (working at the Casino) was not a long term viable option due to the business hardship being sustained by the Department as I have described herein. It was explained that the business was severely impacted upon by having to remunerate the Applicant at her substantive grading, and also fund another employee to fulfil the inherent requirements of her permanent position that Ms Mulder was not completing at ILGA…
12. Further, evidence was provided to the effect that permanent placement at the Casino was difficult because: One probable problem will be Sonja's current grading as a grade 8, which is higher than every position in this office (Casino) except RP's [Mr Petherick]. Therefore it was apparent that the option of permanently placing her in the Casino was not appropriate due to lack of suitable vacancies and inequitable grading.
13. Although the Applicant submitted that there were 5 Grade 8 supervising inspector positions at the Casino, she adduced no further evidence as to whether she was capable of fulfilling the duties of such a position.
14. The Applicant submitted that there was no evidence to substantiate the contention that the arrangement was not a long term viable option, or that the business was impacted by the circumstances as described.
15. The Respondent gave evidence that, as at 9 October 2012, it had raised concerns as to whether the Applicant was able to carry out her substantive duties if she was to be returned to work. The evidence indicated that, despite various Return to Work plans being implemented, with the Return to Work Goal being "to return to pre-injury hours and duties as a Governance & Planning Chief Audit Executive", it was apparent that, by January 2013, the Applicant's condition failed to improve substantially to enable her to return to her substantive duties.
16. The Applicant submitted that she was ready, willing and able to perform the duties associated with her substantive position and noted, in particular, her "co-operation" in attempting to return to pre-injury duties as at 4 October 2012. Nevertheless, she failed to produce any medical evidence demonstrating that she was capable of undertaking the "full inherent requirements" of her substantive position.
17. In fact, the Applicant confirmed that she required some accommodation for her injury to ensure that she did not relapse: COMMISSIONER: …are you in a position where you can perform all the tasks associated with that position right now? APPLICANT: Well, it's impossible for me to say because I was never given the opportunity even when I returned to - COMMISSIONER: No, medically I'm talking about. Have you got medical-- APPLICANT: Well, I have no current medical restrictions. COMMISSIONER: You have no medical restrictions at all? APPLICANT: Not current medical restrictions. COMMISSIONER: So you're able to perform all the tasks associated with that position that you're seeking reinstatement to? APPLICANT: I'm sure I'm able. I did so for eight years while I had medical issues. COMMISSIONER: I understand that, but that was before the injury APPLICANT: No that was from - the injury occurred in 2006 and I continued to perform the full substantive requirements of my position up until 2011. COMMISSIONER: All right, and you can go back that now, that's what you're seeking? APPLICANT: I am seeking reinstatement, but it would have to be with accommodation - I have no current medical restrictions, but I don't want to be in a situation where I would relapse or have to go through this whole process again and certainly to lose my health. COMMISSIONER: All right, so you're saying to me is if you go back to that same position, you want the tasks modified or some of the tasks taken away or something, some accommodation being given to make sure that your previous injury is not exacerbated? APPLICANT: That would be really good. I think
18. It would appear that while the Applicant was not, at the time of the hearing, under any medical restrictions. However, based on the evidence before the Commission, it would be difficult to make an order requiring her re-employment in circumstances where any duties of the Applicant's substantive position would require significant administrative, clerical duties that would ultimately be an issue. On the basis that "permanently modified duties" were explored but ultimately impracticable, it is evident that there are no suitable duties for the Applicant that do not consist of the relevant administrative, clerical duties.
19. Re-employment would also be unsuitable in the circumstances.

Re-instatement pursuant to WC Act

1. As noted above, ss 241 and 242 of the WC Act provide alternative avenues for reinstatement in circumstances where an Applicant is able to provide medical evidence of fitness for employment of the kind for which the worker applies for reinstatement.
2. I note that the 20 December 2013 correspondence to the Applicant pointed out that, in the event her medical condition improves within 2 years of the date of termination, she is entitled to write to the Respondent requesting reinstatement.
3. In conclusion, I accept that: 1. The Respondent had attempted to manage the Applicant's injury for a lengthy period of time (since January 2012). It had continued to employ the Applicant for 20 months after she returned to work with medical restrictions; 2. The Applicant's lack of co-operation on some occasions had severely limited the likely effectiveness of the rehabilitation provider; 3. The Applicant did not take issue with the appointment of the rehabilitation provider at the appropriate time; 4. The Applicant was aware that she was on leave without pay since 3 October 2013 and, therefore, has not established any entitlement to sick leave during the period she was stood down nor was any income withheld; 5. There was no evidence before the Commission that the Applicant sought alternative employment during the 12-week vocational retraining/redeployment program; 6. The Applicant's substantive position required fairly constant use of a keyboard and mouse. She did not adduce medical evidence demonstrating that she was capable of undertaking the full inherent requirements associated with her substantive position. Nevertheless, she gave oral evidence that, while she had no medical restrictions at the time of the hearing, she wanted some modification of her tasks to ensure that the previous injury was not exacerbated. She also gave evidence that voice activated technology was not an adequate solution in her circumstances. It would therefore be impracticable to re-instate her to her former substantive position. 7. The Applicant did not adduce any evidence as to the availability of suitable positions within the Department to which she could be re-employed. There was no evidence before the Commission to counter the Respondent's contention, in the correspondence of 16 September 2013, that any available vacancies required "significant administrative, clerical duties involving keyboard and mouse usage". 8. The Applicant's Grade 8 grading meant that she was higher than every position at the Casino barring one filled position and therefore re-employment would result in inequitable re-grading. 9. The bases upon which the Applicant relied for bringing the unfairness claim have been addressed and found unjustified.
4. Accordingly, I find that the dismissal was not harsh, unjust or unreasonable in the circumstances.

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: 02 September 2015