Tawfils v Woollahra Municipal Council

Judgment

1. Ayman Tawfils was employed by the Woollahra Municipal Council ("Council") as a Building & Compliance Officer. His employment with the Council was terminated on 25 September 2019, on the basis that he was unable to perform the inherent requirements of his position.
2. On 11 October 2009 Mr Tawfils filed with the Office of the Industrial Registrar an Application for Relief in relation to Unfair Dismissal ("Application") pursuant to s 84 of the Industrial Relations Act 1996 (NSW). In an Employer's Reply to Application for Relief in relation to Unfair Dismissal filed on 28 October 2019 ("Reply") the Council objected to the Commission dealing with the Application on jurisdictional grounds.
3. Notwithstanding this position, the Council did not oppose the matter proceeding into conciliation. When conciliation failed to resolve the matter the Council pressed its jurisdictional objection.
4. On 21 January 2020 I made directions for the filing and service of submissions in respect of the objection. Although the Council had not filed a notice of motion, the matter proceeded on the basis that the Council was applying for an order that the Application be dismissed due to lack of jurisdiction. The parties consented to the Council's objection being determined "on the papers".

Relevant legislative provisions

1. Chapter 2 Pt 6 of the Industrial Relations Act contains the Commission's unfair dismissals jurisdiction. A dismissed employee who claims that their dismissal was harsh, unreasonable or unjust may apply to the Commission: s 84. The Commission must endeavour, by all means it considers proper and necessary, to settle the claim by conciliation: s 86. When, in the opinion of the Commission, all reasonable attempts to settle the claim by conciliation have been made but have been unsuccessful, the Commission is to determine the claim: s 87. Such determination can include orders for reinstatement, re-employment, remuneration or compensation: s 89.
2. Section 90 of the Industrial Relations Act is in these terms: 90 Effect of availability of other remedies The Commission must not determine an applicant's claim by making an order under section 89 if: (a) another Act or a statutory instrument provides for redress to the person in relation to the dismissal, and (b) the person has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument.
3. Part 8 of the Workers Compensation Act 1987 (NSW) is titled "Protection of injured workers from dismissal". It relevantly provides as follows: 240 Definitions (cf IR Act, s 91) … (2) For the purposes of this Part, an injured worker is a worker who receives an injury for which the worker is entitled to receive compensation under this Act or the Workers' Compensation (Dust Diseases) Act 1942. … 241 Application to employer for reinstatement of dismissed injured worker (cf IR Act, s 92) (1) If an injured worker is dismissed because he or she is not fit for employment as a result of the injury received, the worker may apply to the employer for reinstatement to employment of a kind specified in the application. (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. … (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. 243 Order by Industrial Relations Commission for reinstatement (cf IR Act, s 94) (1) The Industrial Relations Commission may, on such an application, order the employer to reinstate the worker in accordance with the terms of the order. (2) The Industrial Relations Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), but only if the Commission is satisfied that the worker is fit for that kind of employment. (3) If the employer does not have employment of that kind available, the Industrial Relations Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being - (a) employment of a kind that is available but that is less advantageous to the worker, or (b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation). (4) If the Industrial Relations Commission orders the worker to be reinstated, it may order the employer to pay to the worker an amount stated in the order that does not exceed the remuneration the worker would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission.

The Council

1. The Council's submissions may be summarised as follows: 1. Mr Tawfils sustained an injury during the course of his employment on 17 October 2018. He was thereafter partially or totally incapacitated from performing his pre-injury duties. 2. Mr Tawfils received and continues to receive compensation under the Workers Compensation Act. 3. It follows that Mr Tawfils is, and was at the time of his dismissal, an "injured worker" as defined in s 240 of the Workers Compensation Act. As such, he is entitled to remedies under Pt 8 of the Workers Compensation Act "that he might pursue in future … should his capacity for work improve". 4. By virtue of s 90 of the Industrial Relations Act the Commission has no jurisdiction with respect to the Application unless and until Mr Tawfils provides a written undertaking in accordance with s 90(2) of the Industrial Relations Act. 5. As Mr Tawfils has refused to provide such an undertaking, the Application "is brought without jurisdiction and cannot proceed".
2. In support of its submissions the Council relied on Bronwyn Johnson v Department of Mineral Resources [1997] NSWIRComm 67 ("Johnson"), Public Service Association of New South Wales v New South Wales Crime Commission & Other Matters (1993) 48 IR 363 ("New South Wales Crime Commission") and Basedow v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Corrective Services) [2019] NSWIRComm 1062 ("Basedow").
3. Attached to the Council's submissions was a copy of the Reply. The Reply contained the following contention: "3. The Applicant is not fit to perform the inherent requirements of the role for which he was employed, being Building & Compliance Officer because of his injury."
4. On the question of jurisdiction the Reply contained the following assertions: "8. Part 8 - 'Protection of Injured Workers from Dismissal' of the WC Act constitute [sic] a statutory code by which Injured Workers may make application to the Industrial Relations Commission for reinstatement to employment (Code). … 10. The Applicant has not made an application to the Respondent in accordance with and as required by section 241 of the WC Act. Accordingly, no power to reinstate and/or to award compensation is jurisdictionally available (see sections 242 and 243 of the WC Act). 11. The Applicant has purported to make an Application to the Commission under the [sic] section 84 of the Industrial Relations Act 1996, as opposed to the Injured Worker provisions of the WC Act, and accordingly the Application is brought without jurisdiction." (Emphasis in original)
5. The contention that Pt 8 of the Workers Compensation Act constitutes a code in respect of the reinstatement of "injured workers" was not explored in any detail in the written submissions filed by the Council. The submissions did no more than refer to and summarise in a sentence the arguments contained in the Reply. However, as the Council attached the Reply to its submissions I have inferred that the ground was pressed.

Mr Tawfils

1. Mr Tawfils' submissions may be summarised as follows: 1. Section 249 of the Workers Compensation Act provides that Pt 8 "does not affect any other rights of the dismissed worker under this or any other Act or under any State industrial instrument or contract of employment". This provision is inconsistent with the Council's contention that Pt 8 operates as a code. 2. Section 90 of the Industrial Relations Act is inconsistent with s 249 of the Workers Compensation Act. 3. On the basis of Warrell & Western Sydney Tiles Pty Ltd [2004] NSWIRComm 1089, s 90 does not apply to prevent an employee from bringing both an unfair dismissal application and an application for reinstatement as an injured employee.

Section 90 Industrial Relations Act

1. The disposition of this matter requires a determination as to the meaning and effect of s 90. The Council submits that the potential availability of proceedings under Pt 8 of the Workers Compensation Act meets the requirements of s 90(a) of the Industrial Relations Act, which in turn enlivens s 90(b). The question is whether this is indeed the case.
2. The principles of statutory construction are well settled. They were, with respect, helpfully summarised in Certain Lloyds Underwriters Subscribing to Contract Number IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56. For present purposes I will reproduce only the following passages from the joint judgment of French CJ and Hayne J: "23. It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue: 'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy." 24. The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, '[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute' (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision 'by reference to the language of the instrument viewed as a whole', and 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. 25. Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. …'[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have' (emphasis added). And as the plurality went on to say in Project Blue Sky: 'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.'" (Footnotes omitted)
3. To start with the legislative text, s 90(a) refers to another Act or instrument that would provide for "redress to the person in relation to the dismissal". The Workers Compensation Act is obviously "another Act". "Redress" is defined by the Macquarie Dictionary as follows: "noun 1. the setting right of what is wrong: redress of abuses. 2. relief from wrong or injury. 3. compensation for wrong or injury. -verb (t) 4. to set right; remedy or repair (wrongs, injuries, etc.). 5. to correct or reform (abuses, evils, etc.). 6. to remedy or relieve (suffering, want, etc.). 7. to adjust evenly again, as a balance."
4. The meaning of the term "in relation to" has been the subject of some judicial consideration. In Birch v Wesco Electrics (1966) Pty Ltd (2011) 218 IR 67; [2012] FMCA 5 the Federal Magistrates Court of Australia had to consider the phrase in the context of s 725 of the Fair Work Act 2009 (Cth). That section provides as follows: 725 General rule A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.
5. In Birch the applicant had made an application to the Federal Magistrates Court under the Fair Work Act alleging that Wesco had taken adverse action against her by dismissing her because of her age and sex. She subsequently made a complaint to the Commissioner for Equal Opportunity under the Equal Opportunity Act 1984 (WA) alleging discrimination on the grounds of age, sex and sexual harassment in her employment. Wesco sought an order that the Commissioner for Equal Opportunity be stayed from proceeding with the equal opportunity complaint and that Ms Birch be barred from continuing with the equal opportunity complaint.
6. In deciding to grant the order sought by Wesco, Lucev FM held as follows: "64. Ms Birch submitted that s 725 of the FW Act did not apply because the EO Complaint is not a matter 'in relation to' Ms Birch's dismissal. Ms Birch argued that this is so because the allegations in the EO Complaint spanned the term of Ms Birch's employment by Wesco Electrics, and did not relate exclusively, or even predominantly, to Ms Birch's eventual dismissal. 65. That raises the question as to what is meant by the phrase 'in relation to the dismissal' in s 725 of the FW Act, it being the second application or complaint that must be 'in relation to the dismissal'. In this case, the Court has already determined that the EO Complaint was the last made application or complaint, and an application or complaint of a kind referred to in s 732 of the FW Act. The question now becomes whether the EO Complaint is 'in relation to' Ms Birch's dismissal. 66. In Travelex Ltd v Federal Commissioner of Taxation the majority in the High Court of Australia found that a purchaser of foreign currency obtained rights that attached to, or were constituted by, the ability to use the currency, without which, property in the currency was worthless. Therefore, the supply of foreign currency (on the departure side of the customs barrier at Sydney Airport) was a supply 'in relation to' the rights that attended upon ownership of that currency, and where it was evident that the currency was to be used overseas, the supply was therefore free from the imposition of the goods and services tax. 67. The principal majority judgment in Travelex observed that: 'It may readily be accepted that "in relation to" is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. It may also be accepted that "the subject matter of the inquiry, the legislative history, and the facts of the case" are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is a supply "in relation to" rights." and further that: 'What the Act requires is that there be a supply "in relation to" rights; the operation of the Act does not call for attention to be given to the particular content of the rights.' 68. In O'Grady v Northern Queensland Co Ltd it was said that: 'The words "in relation to", read out of context, are wide enough to cover every conceivable connexion. But those words should not be read out of context, which in this case is provided by the … Act … . What is required is a relevant relationship, having regard to the scope of the Act. Where jurisdiction is dependent upon a relation with some matter or thing, something more than a coincidental or mere connexion - something in the nature of a relevant relationship - is necessary … .' 69. In O'Grady the phrase 'in relation to' was said to be one which 'subject to any contrary indication derived from its context or drafting history, … requires no more than a relationship, whether direct or indirect, between two subject matters'. It has also been said to be a phrase of wide and general import, not to be read down in the absence of some compelling reason to do so. 70. In HP Mercantile Pty Ltd v Federal Commissioner of Taxation the Full Court of the Federal Court of Australia observed that: 'It was common ground that the words "relates to" are wide words signifying some connection between two subject matters. The connection or association signified by the words may be direct or indirect, substantial or real. It must be relevant and usually a remote connection would not suffice. The sufficiency of the connection or association will be a matter for judgment which will depend, among other things, upon the subject matter of the enquiry, the legislative history, and the facts of the case. Put simply, the degree of relationship implied by the necessity to find a relationship will depend upon the context in which the words are found.' 71. In Australian Communications Network Pty Ltd v Australian Competition and Consumer Commission the Full Court of the Federal Court held that in determining whether a matter was 'in relation to' another matter, 'the question is whether there is a relevant, sufficient or material connection or relationship, rather than merely a causal connection or relationship'. In Australian Communications Network the Full Court of the Federal Court said that the approach set out above in O'Grady emphasised 'the need for attention to the legislative context and purpose' and was 'an example of the primacy of context'. In context, one of the matters to be considered here is what mischief s 725 of the FW Act was intended to remedy. 72. That the expression 'in relation to' gathers meaning from both the context in, and purpose for, which it appears, is a consistent theme in Federal Court judgments relating to that expression. The consideration of context in each case limits the precedential value of prior judgments in considering the proper interpretation and reach of 'in relation to' in the specific circumstances presently before the Court. Context is also important to a consideration of whether the relationship need be: a) direct or substantial; b) indirect or less than substantial; c) affecting one term of the relationship; or d) affecting all of the terms of the relationship. 73. In Tooheys the 'vital question' was said to be 'whether the instrument "relates" and not whether it may be "related" by an examination of extraneous circumstances'. 74. The phrase 'in relation to' does not extend to tenuous or remote relationships. Rather, a statutory test of relationship requires that the relationship 'must lie within the bounds of relevance to the statutory purpose'." (Footnotes omitted)
7. Birch was cited with approval by the Fair Work Commission in Hazledine v Wakerley [2016] FWC 4989, upheld on appeal in Hazledine v Wakerley (2017) 266 IR 118; [2017] FWCFB 500.
8. This leads to an examination of the purpose of s 90 of the Industrial Relations Act. That was considered by the Full Bench in New South Wales Crime Commission, which concerned the predecessor to s 90, namely s 254 of the Industrial Relations Act 1991 (NSW) ("1991 Act"). The Full Bench stated (at 366-377): "A person in New South Wales who claims relief with respect to termination of employment may have a range of alternative rights or remedies arising under various Acts or statutory instruments. Depending upon the employment status of the person concerned and/or the reason for the termination, these rights or remedies may include overlapping remedies pursuant to statutes including: • Anti-Discrimination Act 1977 (NSW); • Employment Protection Act 1982 (NSW); • GREAT Act 1980 (NSW); • Human Rights and Equal Opportunity Commission Act 1986 (Cth); • Industrial and Commercial Training Act 1989 (NSW); • Industrial Relations Act 1988 (Cth); • Industrial Relations Act 1991 (NSW); • Local Government Act 1919 (NSW); • Occupational Health and Safety Act 1983 (NSW); • Police Service Act 1990 (NSW); • Racial Discrimination Act 1975 (Cth); • Sex Discrimination Act 1984 (Cth); • Workers' Compensation Act 1987 (NSW). When the terms of s 254 of the 1991 Act and the potential array of alternative remedies that might be available in relation to termination of employment are examined, there is no doubting the purpose of the written undertaking. The requirement arises only in the context of two or more alternative rights of remedy, and the waiver is designed to prevent a duality of approach to different tribunals for relief in relation to the same complaint in so far as the remedy involves an application concerning a dismissal (or threat of dismissal) which is harsh, unreasonable or unjust." (Bold emphasis added)
9. If the purpose of s 90 is to "prevent a duality of approach to different tribunals for relief in relation to the same complaint", the question arises whether an application under s 242 of the Workers Compensation Act would fit that description when compared to a claim under s 84 of the Industrial Relations Act. Further, consistent with that purpose, is such an application properly to be regarded as being "in relation to the dismissal"?
10. It is illustrative to set out the legislative history of Pt 8 of the Workers Compensation Act. The original predecessor to the Part was Pt XV of the Industrial Arbitration Act 1940 (NSW), which was titled "Protection of Injured Employees". Part XV was introduced into the Act by the Industrial Arbitration (Workers Compensation) Amendment Act 1987 (NSW) ("1987 Act").
11. In the Second Reading Speech for the Bill that became the 1987 Act, and the cognate Workers Compensation Bill 1987 (NSW) (which became the Workers Compensation Act), the Honourable Mr Hills, Minister for Industrial Relations and Minister for Employment, stated as follows: [1] "In keeping with the emphasis on rehabilitation, and stressing the responsibilities of all the parties involved in the workers' compensation area, a prohibition will be placed on the dismissal of a totally incapacitated worker within the period of total incapacity, up to a maximum period of six months from the date of injury, unless it is certified medically that the worker is permanently unable to resume duties in his or her former employment. Workers whose employment is terminated outside that period of total incapacity and who are certified fit for their previous work will have a right to apply to the Industrial Commission for reinstatement." (Emphasis added)
12. In his Second Reading Speech to the Legislative Council regarding the Bill the Honourable Mr Hallam, Minister for Agriculture, Minister for Lands, Minister for Forests and Vice-President of the Executive Council, stated: [2] "In keeping with the importance attached to rehabilitation, limited amendments are to be made to the Industrial Arbitration Act to restrict the circumstances where an employer may dismiss an employee who has suffered a work injury. Provision will be introduced for an employee dismissed following an injury to make application for reinstatement to his or her job in certain cases. The legislation will make appropriate defences available to employers in this regard." (Emphasis added)
13. The Industrial Arbitration Act was repealed by the 1991 Act. The provisions which had previously been in Pt XV of the Industrial Arbitration Act appeared, in relevantly unaltered form, in Ch 3 Pt 7 of the 1991 Act.
14. The Explanatory Note to the Bill that became the 1991 Act provided as follows: "Part 7 re-enacts provisions designed to protect the employment of employees injured on the job. An employee who is dismissed from employment on account of such an injury is entitled to be reinstated on demand, if the employee is fit to resume the position."
15. The 1991 Act was repealed by the Industrial Relations Act 1996. The "protection of injured workers" provisions were contained, again in relevantly unaltered terms, in Ch 2 Pt 7 of the Industrial Relations Act.
16. In the Second Reading Speech for the Bill that became the Industrial Relations Act the Honourable Mr Shaw, Attorney-General and Minister for Industrial Relations, referred to the Second Reading Speech he had delivered in relation to the Industrial Relations Bill 1995 (NSW). [3] On that occasion he had stated as follows: [4] "Part 7 - Protection of Injured Employees Chapter 2 part 7 carries forward the provisions of the 1991 Act which are designed to provide certain employment-security rights for persons who have suffered a work-related injury. …There is no ability to order compensation in lieu of reinstatement: the policy objective is the reinstatement of injured workers. The bill adopts a more flexible approach to the kind of employment to which an employee can be reinstated. This will facilitate the laudable aim of the return to work of injured employees - but will be balanced against employer interests as it must be employment which is available and for which the employee is fit. …"
17. The Explanatory Note to the Industrial Relations Bill 1996 (NSW) provided as follows: "Part 7 Protection of injured employees This Part re-enacts provisions of the 1991 Act designed to protect the employment of employees injured on the job. The application of the provisions and the remedies available have been clarified and extended having regard to the provisions relating to unfair dismissals. An employee who is dismissed from employment on account of an injury on the job is entitled to be reinstated on demand, if the employee is fit to resume employment. A failure by the employer to accede to this demand may be remedied by an order for reinstatement, made by the Commission. It is an offence for an employer to dismiss the injured employee, on account of the injury, within 6 months of the employee becoming unfit for employment."
18. Part 8 was introduced into the Workers Compensation Act by the Industrial Relations Further Amendment Act 2006 (NSW), which also omitted Ch 2 Pt 7 of the Industrial Relations Act. In the Second Reading Speech for the Industrial Relations Further Amendment Bill 2006 (NSW) the Honourable Mr Campbell, Minister for Water Utilities, Minister for Small Business, Minister for Regional Development and Minister for the Illawarra, stated as follows: [5] "…The bill also transfers the injured worker protection provisions contained in chapter 2 part 7 of the Industrial Relations Act 1996 to the Workers Compensation Act 1987. Those provisions provide an injured worker with the remedy of reinstatement if that worker is dismissed from employment because he or she is not fit for employment because of that injury. The provisions also create an offence when an employer dismisses a worker because that worker is not fit for employment because of the injury and dismissal takes place within six months of the worker becoming unfit for employment. The injured worker protections contained in the bill are an integral part of the workers compensation scheme to get injured workers back to work and to ensure employers are engaged in this process. The duties of employers to find injured workers suitable duties, to commence workplace rehabilitation programs, and develop return-to-work programs would become meaningless if an employer was simply able to dismiss the worker to avoid these obligations. The protections for injured workers in the bill are an essential element of the workers compensation scheme in this State. It is appropriate that the bill provides for these protections to sit appropriately within State workers compensation legislation. These initiatives will guarantee that these important remedial provisions live on, providing reassurance to employers and their workers regarding their rights and responsibilities, given the current climate of confusion."
19. It is clear from both the language of the legislation and the extrinsic material referred to above that the purpose of Pt 8 of the Workers Compensation Act is to assist in the rehabilitation of injured workers. This was recognised by the Court of Appeal in Bindaree Beef Pty Ltd v Riley (2013) 239 IR 52; [2013] NSWCA 305 in which Bathurst CJ, with whom Beazley P agreed, stated as follows: "47. In the present case the purpose of the provisions of Pt 8 of the Act is relatively clear. It is to provide a mechanism to assist an injured worker to return to work either in his or her previous position or such other position for which he or she is fit."
20. An application under s 84 of the Industrial Relations Act requires the applicant to prove that the dismissal was harsh, unreasonable or unjust. If the applicant discharges their onus and proves to the satisfaction of the Commission that their dismissal was harsh, unreasonable or unjust they are entitled to relief, which may include an order for reinstatement. That remedy is the direct consequence of the employer's unfair treatment of them. It falls squarely within the definition of "redress" set out at [16] above.
21. Obviously, an application under s 242 of the Workers Compensation Act could only be made if there had been an earlier dismissal. However, the dismissal is not the focus of the proceedings, but the employee's capacity for work. All that needs to be established is that the dismissal was brought about because the injured worker was not fit for employment as a result of the injury received, and that they are fit for the kind of employment to which they seek to be reinstated. An order for reinstatement under s 242 does not require a finding that the dismissal was harsh, unreasonable or unjust: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm 108 at [69]. The statutory purpose of Pt 8 is not to provide redress for the manner or fairness of a person's dismissal. Rather, as stated, it is to enhance rehabilitation prospects for injured employees who recover fitness such as to be able to resume their former employment.
22. For these reasons, while an order for reinstatement under s 243 of the Workers Compensation Act would be remedial in nature, I do not consider that it is properly to be regarded as involving redress in relation to the dismissal within the meaning of s 90(a) of the Industrial Relations Act. To adopt the language in Birch, the availability of relief under Pt 8 of the Workers Compensation Act is not "within the bounds of relevance to the statutory purpose" of s 90 of the Industrial Relations Act. Or, to use the language of the Full Bench in New South Wales Crime Commission, an application under s 242 of the Workers Compensation Act is not to be regarded as "the same complaint" as an application under s 84 of the Industrial Relations Act.
23. I am supported in this view by the fact that an application under s 84 must be made not later than 21 days after the dismissal of the employee: s 85(1) of the Industrial Relations Act. By contrast, an application under s 242 can be made up to 2 years after the injured worker was dismissed: s 242(3) of the Workers Compensation Act. These limitation periods reflect the very different focus of the respective provisions and highlight that they are designed to provide relief for quite different purposes. In the case of s 84, the focus is on the employer's conduct in the process culminating in the dismissal. That conduct can be ascertained at that time and any unfairness addressed promptly. Under s 242 the relevant question is the employee's fitness for work, which can change over time.
24. Viewed in this light, it does not require a great stretch of imagination to envisage a situation in which the construction pressed by the Council could create unfairness. Consider an employee who is dismissed on the basis of a work-related injury. The circumstances are such that the dismissal would be considered harsh, unreasonable or unjust. At the time, it is not possible to state with certainty whether, or the time within which, the employee will recover their fitness to work.
25. On the construction pressed by the Council, the employee is left with an invidious choice. One option is to commence proceedings under s 84 of the Industrial Relations Act to recover compensation for the unfairness of their dismissal (recognising that reinstatement or re-employment is unlikely to be ordered in the absence of fitness to work). However, to obtain such compensation the employee would need to relinquish any future claims to reinstatement in the event that they do recover fitness.
26. The second option for the employee is to forgo an unfair dismissal claim in the hope that within the following two years their condition improves such as to enable them to claim reinstatement under Pt 8 of the Workers Compensation Act. This would require them to relinquish any claim for the unfairness of their dismissal. The employer would have paid no price for its unfair treatment of the employee.
27. In the present case, it is to be borne in mind that on the Council's case Mr Tawfils is not fit to perform the inherent requirements of his former role. If this is correct (about which I make no finding), Mr Tawfils currently has no entitlement to bring a claim under Pt 8 of the Workers Compensation Act, and may indeed never have such an entitlement.
28. The decisions on which the Council relied need to be considered in the context of the differences in the purpose and effect of Ch 2 Pt 6 of the Industrial Relations Act on one hand and Pt 8 of the Workers Compensation Act on the other. In Johnston, proceedings were commenced under s 84 of the Industrial Relations Act at a time when Ms Johnston had already commenced proceedings against her employer under the Anti-Discrimination Act 1977 (NSW). In those proceedings before the Equal Opportunity Tribunal Ms Johnston sought to press her claims for orders for reinstatement and orders of compensation.
29. Basedow similarly involved the commencement of an unfair dismissal claim at a time when proceedings were already on foot under the Anti-Discrimination Act. In that case the applicant had alleged in the anti-discrimination proceedings that the act of termination of her employment was tantamount to victimisation in breach of the Anti-Discrimination Act.
30. Each of Johnston and Basedow involved situations where the applicant sought to advance two separate proceedings which would both require an examination of the merits of the dismissal, and potentially overlapping remedies. Such circumstances fall squarely within the category of cases identified by the Full Bench in New South Wales Crime Commission, referred to above. The cases are of limited assistance in considering the potential for overlap between s 84 of the Industrial Relations Act and s 242 of the Workers Compensation Act.
31. For all of these reasons I do not accept the Council's submissions that Mr Tawfils was obliged to provide a written undertaking in accordance with s 90(2) of the Industrial Relations Act and that, as he has refused to do so, the Application is brought without jurisdiction.

Part 8 as a Code

1. As noted above, I have inferred that the Council pressed the contention that Pt 8 of the Workers Compensation Act constitutes a code providing the exclusive avenue by which injured workers may make application to the Commission for reinstatement to employment. The Council's submissions do not provide any support for the contention. For this reason, I do not intend to examine the matter in detail or anticipate arguments that might have been, but were not, advanced by the Council.
2. An immediate observation can be made about the Council's position: its submission that Pt 8 of the Workers Compensation Act comprises a code and its reliance on s 90 of the Industrial Relations Act cannot be reconciled. If the first argument is correct then there is no scope for the operation of s 90. Other than to the extent noted at [12] above, the Council's written submissions dealt only with the operation of s 90, so at most the contention that Pt 8 constitutes a code must be seen as an alternative ground of objection.
3. To the extent that it is pressed, for the reasons set out above I do not accept that Pt 8 constitutes a code as claimed. While Ch 2 Pt 6 of the Industrial Relations Act and Pt 8 of the Workers Compensation Act each provide for a remedy of reinstatement, they are directed to different ends. I also consider that there may be some merit to Mr Tawfils' submission that s 249 of the Workers Compensation Act is inconsistent with Pt 8 comprising a code, but in the circumstances it is not necessary to further explore the question.
4. I do not consider that the Council has established that the Commission has no jurisdiction to hear and determine the Application. I find to the contrary.

Order

1. The Council's motion to dismiss the Application is dismissed. The matter will be re-listed for programming. Damian Sloan Commissioner

Endnotes

1. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 14 May 1987
2. New South Wales Legislative Council, Parliamentary Debates (Hansard), 28 May 1987
3. New South Wales Legislative Council, Parliamentary Debates (Hansard), 17 April 1996
4. New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 November 1995
5. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 October 2006 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: 17 February 2020