Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Limited

Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Limited - [2008] NSWIRComm 157 - NSWIRComm 2008 case summary — Zoe

[19]

4 Mr Lawson was employed by the respondent in a local pick-up and delivery driver role in which he performed driving duties, including the occasional interstate changeover trip. In addition to driving, local drivers, including Mr Lawson, were responsible for: .... the loading and unloading of the linehaul vehicles outside the depot, which involves the manual handling of pallets weighing between 800kgs and 1200kgs. On occasion, pallets can be loaded or unloaded via forklift, however, there is a requirement to remove or place ply and load restraint bars in the vans during that process. If the equipment is side loading, then there is a requirement to remove, or install, gates and to secure loads in accordance with the applicable load restraint guidelines. About 20% of loads are full pallets which can be transferred by forklift out of one truck and into another. All others involve some manual handling. 5 There was a significant amount of evidence in the proceedings concerning Mr Lawson's medical history. On 1 March 2001, whilst securing a load, Mr Lawson felt a sharp intense pain in his right arm. He attended his general practitioner, following which he made a workers compensation claim. The injury became progressively worse. Eventually, Mr Lawson had a shoulder reconstruction in April 2006. However, as a consequence of the burden his left arm bore from his right shoulder injury in 2001, his left shoulder was operated on in October 2007 to repair tendon damage. The surgery was unsuccessful and a shoulder reconstruction was performed on the left shoulder in April 2008, that is, after the respondent had terminated Mr Lawson's employment. The three surgical operations were covered by his workers compensation claim. In addition, Mr Lawson also had a hip replacement in 2001 and carpel tunnel surgery in 2004, both of which were not workers compensation injuries and for which he took unpaid leave to recover. 6 After his successful shoulder reconstruction in April 2006, Mr Lawson required a four-week period of leave from work. He advised the respondent that he was unable to perform any driving or lifting. He was contacted by Mr Peter Blair, the respondent's Arndell Park depot manager, who said words to the effect of: Come back to work, I've got the right job for you.

[37]

On day shift, there are 16 local drivers (of which Mr Lawson was one), 4 forklift drivers and 7 clerical staff working at any one time. On nightshifts, there are 2 local drivers/forklift drivers, 1 forklift driver and 11 change-over/shuttle drivers. 30 Mr Blair described the physical requirement and skill needed for each position, as well as his assessment of Mr Lawson's ability to perform the various roles. He believed that based on Mr Lawson's medical restrictions and the work performed at the Arndell Park site that the respondent could not find ongoing suitable employment for Mr Lawson. Counsel for the respondent submitted that given Mr Lawson's medical history, the only position that the Commission may be satisfied Mr Lawson would be able to perform, would be sedentary in nature. This would mean, at best, the only function he could fulfil was the induction process undertaken with new drivers in the depot, which Mr Blair stated was being performed by either himself or other drivers since Mr Lawson's termination. In his written submissions, Mr Joseph further submitted that: If it is accepted that the term 'available' is more akin to employment being existing rather than vacant, there must be a question at least that these functions don't even exist. It is not to the point that the respondent might benefit from having these functions performed by someone. It is not the Commission's job to run an employer's business. It may be said that the employer could reasonably make such employment available-see section 243(3)(b). However, the evidence is that the respondent has only hired 4 local drivers in the calendar year 2008 (Michael Martin-examination in chief). That means that in seven and one half months, the employer could reasonably have made available between four days and eight days work to Mr Lawson. That being the case, and taking into account that the hiring of staff must be unpredictable the Commission would not, as a matter of discretion, make orders where the availability of suitable work was so limited and uncertain. 31 The applicant contended that the position of driver trainer, as performed by Mr Lawson, was a real position and a position that Mr Lawson was fit to perform. Mr Lawson's evidence was that he could not recall being told by Mr Blair the position was temporary. In his evidence Mr Lawson readily accepted that there were times when there were no training duties to perform, but when that occurred he supplemented the training function with other tasks, such as driving and yard duties.

[44]

We also occasionally delivered timber. I was able to do that work as the timber was carried on a flattop and strapped down so all I was required to do which simply required me to tie or untie the straps. 35 Mr Aird submitted that the work able to be performed by Mr Lawson fell into three categories. The first involved simply dropping off and picking up trailers, which required no lifting or manual handling. Mr Blair's evidence was that there were a dozen 'express sites' where a driver would just drop a trailer off, the sites would load them and a line haul driver would pick them up. Mr Lawson described what was physically required for those deliveries: First, the company had a substantial amount of what might be called transfer work picking up and delivering trailers. This type of work didn't involve lifting or loading; I would simply hook up a trailer and take it to a yard, either leave it on a dock or elsewhere in the yard and leave it to the warehouse staff to load or unload. I would then usually bobtail (that is, travel in the prime mover without a trailer) back to the Lindsay yard or another yard and repeat the process. We had a number of clients where we didn't do the loading ourselves including TNT, McPhees, Riteway, Samsung, Autonexus, Freedom Furniture, and Schenker. 36 A second category of work was where the customer, often with the use of a forklift, unloaded the trailer. Mr Lawson said all that was required when a forklift was used was for him to move boards to the end of the truck once it was unloaded. Mr Lawson believed that unloading by the customer occurred at 80 per cent of sites. Mr Blair disagreed with this and suggested it would be less than 50 per cent. Nevertheless, this was also work that Mr Lawson stated he had performed and was currently fit to perform. In this respect, I note Mr Martin's evidence about a recently introduced policy aimed at combating manual handling issues, which required a greater use of customer assistance at a number of sites, and often resulted in drivers waiting until assistance was forthcoming.

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