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

Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Ltd - [2010] NSWIRComm 120 - NSWIRComm 2010 case summary — Zoe

[31]

During this period, the respondent took the view that given Mr Lawson's previous history of injuries at the workplace, the respondent should take a conservative approach to the tasks he should do to ensure his health and safety at work. 18 In his oral evidence Mr Duncan stated: 1. He was Mr Lawson's immediate manager working alongside the local allocatur to direct Mr Lawson in his work. He directed Mr Lawson to work only within his medical restrictions. 2. Drivers may not have the same truck all of the time, but will usually be assigned a truck for a period of up to a few months. They will drive other vehicles where their own truck is unavailable for operational reasons. 3. In relation to the 'local fleet' (Sydney CBD) the ratio of cab-over prime movers versus bonnet prime movers was about 70/30. In relation to the ratio of pantech versus taut line trailers it is about 60 percent pantechs to 40 percent tautliners 4. There has been some change in the nature of work due to new truck and delivery technologies. There is less use of manual pallet jacks now than there has been in the past. In tautliners, the curtains nowadays are a lot more user-friendly than they used to be. 5. There were increasing numbers of customers using delivery docks where drivers were not heavily involved in unloading, particularly in refrigerated work. 6. In relation to Simplot, it was never a guaranteed five days a week run, but based on customer demand. Submissions 19 Mr O Fagir, for the TWU, submitted: 1. Mr Lawson has adequately explained how and why he is able to perform certain tasks at work and certain driving runs consistently over the period in question. 2. There are many client runs Mr Lawson can perform which have not changed over the years. Even work which has since been lost would have comprised much of his full time work had he been fully employed in the relevant period. 3. While drivers are not assigned a designated truck, drivers tend to use the same truck. 4. Mr Lawson's work capacity has not changed in recent years, as there was no change in his medical restrictions between the Konekt report and Dr Burns' report. Mr Lawson's condition and restrictions did not improve between the two reports, and reinstatement. 5. The existence of full time work plus overtime at present is clear as Mr Lawson is performing this work. Mr Lawson's employment records demonstrate the existence of full time work and overtime prior to his termination in December 2007. By inference from the consistency of client runs through the intervening period, there was the same amount of work available to Mr Lawson through that time as there was before and after it. 6. Workers compensation payments to Mr Lawson should not be discounted, as they are not remuneration. This would be allowing a windfall for the respondent at the expense of the workers compensation scheme. Rather, Mr Lawson might repay some of those payments to the insurer if no discount is applied. 7. Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355; (1999) 130 IR 1 is authority for the proposition that the employer bears the onus as to whether it has employment of the kind to which reinstatement is sought. 8. Mr Lawson has listed the runs he can perform, which he did perform before 2008 and which he now performs. In the absence of contradiction he has proven the availability of work.

[42]

21 Mr Joseph contended that as no order for reinstatement had been made that would allow the Commission to make any compensatory order covering the relevant period, the Commission was precluded from making such an order: s 243(4) of the Workers Compensation Act. 22 Pursuant to the second decision, Mr Lawson was reinstated: [T]o part time employment as a driver on and from 6 October 2008, subject to the restrictions imposed by the WorkCover NSW Medical Certificate dated 20 September 2008 and signed by Dr G Anderson. The weekly hours of work for Mr Lawson shall be 25. 23 In its second decision the Commission reserved for later consideration whether there was 'productive, full time employment available to Mr Lawson within his medical limitations.' For the reasons that have been explained, any decision in that respect was overtaken by other events and in March 2010 the respondent, of its own accord, reinstated Mr Lawson in full time employment. 24 There can be no doubt, however, that the issue of whether Mr Lawson should be reinstated to full time, as distinct from part time, employment as a driver from 6 October 2008 remains extant. Accordingly, if in the period 6 October 2008 to 1 March 2010, it is found that Mr Lawson was fit for full time work within his medical restrictions and within that period there was full time work available for Mr Lawson, I am unable to see any impediment to ordering reinstatement from 6 October 2008 followed by an order for compensation as provided by s 243(4) of the Workers Compensation Act. 25 In respect of the question of Mr Lawson's fitness for full time work, the respondent, by reinstating Mr Lawson to full time work in March 2010, accepted, from that date, he was fit for such work. The decision to reinstate Mr Lawson was based on two factors that I have mentioned, one of them being the report of Dr Burns. Dr Burns concluded in January 2010 that Mr Lawson could work up to normal hours in suitable work, within his restrictions, if that work was available. The restrictions, which had been determined by Dr Anderson, Mr Lawson's general practitioner, were as follows: s No lifting above shoulder height s Metro and Country driving permitted, no Interstate s Breaks as required s Occasionally lifting up to 15 kilograms permitted 26 Dr Burns' opinion regarding Mr Lawson's fitness for full time work did not differ, in any material sense, from the opinion of Dr Anderson given in September 2008 and neither opinion was in any way contradicted by the report following a workplace assessment of Mr Lawson by an occupational therapist with the firm Konekt, also in September 2008.

[43]

27 Despite my concerns, expressed in the earlier decisions, to avoid any aggravation of Mr Lawson's condition, it is apparent that there are three medical opinions, given in September 2008 and January 2010, certifying Mr Lawson's fitness for full time work subject to his medical restrictions. The employer has accepted his fitness for full time work. There is no evidence that between October 2008 and March 2010 Mr Lawson's condition deteriorated to the point he was unable, for any part of that period, to perform full time work within his restrictions. 28 I have to conclude, therefore, that between 6 October 2008 and 1 March 2010, Mr Lawson was fit for full time employment, subject to the restrictions imposed by Dr Anderson and confirmed by Dr Burns. 29 That leaves the issue of whether full time hours of work were available within Mr Lawson's restrictions during the relevant period. 30 With regard to the disagreement in the evidence concerning vehicle types in the employer's fleet and the ratio of one type of vehicle to another, I prefer the evidence of Mr Duncan. In his role as fleet manager, Mr Duncan has superior knowledge of these matters and there is no reason to disbelieve his evidence. 31 However, I accept Mr Lawson's evidence that although drivers may not be assigned a particular vehicle, generally a driver will have the same truck, barring some scheduled maintenance or unforeseen urgency. 32 Consequently, I accept that it would not have been unduly burdensome to allocate Mr Lawson one of the 30 per cent bonnet-style prime movers for his regular use between 6 October 2008 and 1 March 2010. I give considerable weight to the fact that in the 11 years prior to October 2008, Mr Lawson had never been able to operate cab-over prime movers, and was reinstated to his former position in March 2010 still unable to operate these vehicles. Mr Lawson's work for the respondent has been solely performed in bonnet-style prime movers, and there is no reliable evidence to establish that the situation in this period would have been any different to that prior to his dismissal or post his reinstatement.

[44]

33 In respect of work involving tautliners and pantechs, Mr Lawson is unable to perform deliveries in the company's tautliners, which make up 40 per cent, and can only operate pantechs, which make up 60 per cent. In respect of pantechs, forklifts or electronic pallet jacks are used to load the vehicles. The increase in business from the Coles Myer contract has increased the use of tautliners by the respondent and thereby reduced the amount of work available to Mr Lawson. 34 The issue is whether the increased use of tautliners meant that there was not sufficient work to allow Mr Lawson to be engaged on a full time basis within his medical restrictions. 35 The bulk of the pantech work available to Mr Lawson involves refrigerated loads. There was some issue as to what inferences the Commission may draw from the fluctuations in refrigerated work since December 2007. It is clear from all witnesses that in December 2007 a majority of Lindsay Brothers' deliveries were refrigerated. This refrigerated work subsequently dropped off due to the loss of several clients and was replaced by non-refrigerated loads, particularly with Coles Myer. Refrigerated work picked up again in the last six months, due to a new contract with Swire. 36 Mr Joseph's submission was that this demonstrated there was less work available for Mr Lawson in the period October 2008 to March 2010, whilst Mr Fagir seemed to submit that there was an abundance of refrigerated work available at the beginning of the relevant period, which gradually dropped away until 2010. Without more specific evidence as to the particular fluctuations of refrigerated work throughout the period, I can draw no conclusion other than that sometime prior to 2010 there was a drop in refrigerated work which meant there would have been less work available to Mr Lawson than there is at present. 37 However, I accept Mr Fagir's submission that there are fewer demands on drivers these days to engage in physically demanding manual work. Mr Duncan accepted this was so. Mr Lawson insisted that a majority of the pantech deliveries fell within his medical restrictions. He identified a number of client 'runs' with limited manual work that have been unchanged for years, and have at least continued from 2008 to the present time. 38 With regard to the 'Simplot run' I accept Mr Lawson's evidence that he was performing this run several times a week, perhaps even five, as he contends. However, I also accept Mr Duncan's evidence that this run was lost in 2008, making it largely irrelevant to the issue of work availability during the period for which compensation is sought. As stated by Mr Duncan, in that time, such runs were replaced by Coles Myer work. 39 Further, the 'Simplot run' is one example of long distance work (8 hours), which Mr Lawson was performing prior to October 2008, which would no longer be permitted under his medical restrictions. Dr Burns' report indicates that Mr Lawson's driving should be confined to shorter runs. I note also the current policy of the respondent requiring long-distance drivers to be able to change a tyre. 40 Mr Joseph submitted that the respondent should not have to go to unreasonable lengths to make work available to Mr Lawson. However, the respondent was prepared to reinstate Mr Lawson in full time employment in March 2010 and it was not contended that the reason it did so was because of the increase in the amount of work available at the depot. Moreover, as it was observed in the first decision at [17], the motivation for terminating Mr Lawson's employment in the first place seemed to have more to do with the management of the respondent's insurance premiums than the availability of suitable employment. 41 I accept that there are runs available within Mr Lawson's medical restrictions, which have been consistently available over the past few years. Whilst I agree with Mr Joseph that the loss of various clients and a reduction in refrigerated work would have reduced the available work somewhat, due to the consistent availability of the metropolitan runs, on balance I am satisfied that there was sufficient work available for Mr Lawson in the period 6 October 2008 to 1 March 2010 to enable him to be employed on a full time basis within his medical restrictions.

[46]

43 Mr Lawson was receiving workers compensation for partial incapacity under s 40 of the Workers Compensation Act during the relevant period. That is to say, he received the difference between the weekly amount which he would probably have been earning as a worker but for the injury and had he continued to be employed in the same or some comparable employment, and the average weekly amount that he was earning, or would have been able to earn in some suitable employment, from time to time after the injury. 44 It would be a windfall for Mr Lawson to receive workers compensation payments for periods of partial incapacity during the relevant period and compensation for those periods as though he had been employed on a full time basis. He would, in effect, be paid twice for the periods of his incapacity. 45 The TWU's position is that no discount should be made and if restitution by Mr Lawson to the insurance company is required that should be regarded as a separate matter. However, it seems to me the fairest and most efficient solution, given Mr Lawson has already received his compensation payments for the periods of partial incapacity, is that the amount owed by the respondent to Mr Lawson for the relevant period be discounted by the amount of workers compensation received by him during the relevant period. 46 One has to assume that if Mr Lawson was receiving compensation for partial incapacity, he was unable to perform the work necessary to earn his usual income because of that incapacity. To decline to discount the amount owed would be to pay to Mr Lawson an income he was not able to earn. 47 The second element of a discount was Mr Lawson's earnings from other sources during the relevant period. I agree with the parties that this is a necessary and reasonable discount of any compensation claimed. 48 The third element of a discount was based on the contention that for the period between 10 October 2008 and 22 June 2009 Mr Lawson was unemployed as a consequence of being dismissed for misconduct. However, following proceedings in the Australian Industrial Relations Commission, it was found the dismissal was harsh and Mr Lawson was reinstated from 22 June 2009: Thomas Lawson v Lindsay Brothers Management Pty Ltd [2009] AIRC 282. The Commission ordered that (at [76]): [76] ... Mr Lawson be paid any remuneration lost as a result of the termination of his employment, at the rate of 25 hours per week. That amount is to be reduced by the amount of any income earned by Mr Lawson from employment or other work during the period between the termination of his employment and this order for reinstatement. ... 49 In those circumstances, the respondent cannot succeed in the proposition that it should not be required to make any compensatory payment for the period 10 October 2008 to 22 June 2009. 50 The fourth element of a discount related to the claim having been calculated on the basis of average earnings prior to October 2008, including overtime. Mr Joseph submitted that this calculation was flawed considering that on days when Mr Lawson was on various forms of leave, no overtime would have been paid. If Mr Joseph is correct about this, some adjustment will need to be made to the amount claimed in order to take account of the fact overtime would not have been payable during periods of leave. 51 The final element of a discount related to the proposition that in the second decision, the Commission made the following order: 2. On or after 6 October 2008 Lindsay Brothers Management Pty Limited shall meet with the Transport Workers' Union of New South Wales for the purpose of making a detailed assessment of whether there is productive, full time employment available to Mr Lawson within his medical limitations. That may involve the engagement of an independent assessor agreed on by the parties if they jointly consider that is an appropriate course. The parties will report the outcome of their assessment to the Commission at 9.30 am on Wednesday 5 November 2008. 52 It was submitted that even if the Commission, based on a report by an independent assessor had, on 5 November 2008, decided to reinstate Mr Lawson in full time employment, any order would not have operated retrospectively, either as to the date of reinstatement or as to any back-pay in connection with full time employment. 53 What the Commission has now determined is that the respondent had available to Mr Lawson full time employment, subject to medical restrictions, from 6 October 2008. What might have occurred in November 2008 is not now a relevant consideration.

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Judgment (52 paragraphs)

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Cases Cited (10)