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

Industrial Relations Commission (NSW)|2010-04-16|Before: Boland J

CITATION: Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Ltd (No 3) [2010] NSWIRComm 60

PARTIES: Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) (Applicant) Lindsay Brothers Management Pty Ltd (Respondent)

CATCHWORDS: UNFAIR DISMISSAL - Application under s 242 of Workers Compensation Act 1987 - Applicant reinstated by Commission to part time employment and compensation ordered - Applicant later reinstated by unilateral decision of employer to full time employment - Application by applicant for payment of lost earnings for period of dismissal equal to what applicant would have earned if he had remained in full time employment - Whether power to make an order for lost earnings under s 243 of Workers Compensation Act - Whether final orders made regarding reinstatement and compensation - Applicant provided with opportunity to pursue lost earnings claim for part of period he had been dismissed - Directions made

LEGISLATION CITED: Workers Compensation Act 1987

Hollingsworth v Commissioner of Police [2007] NSWIRComm 7; (2007) 160 IR 456 Hollingsworth v Industrial Court of New South Wales [2007] NSWCA 209; (2007) 166 IR 192 Lawson v Lindsay Brothers Management Pty Ltd [2009] AIRC 282 CASES CITED: Ove Arup Pty Ltd v WorkCover Authority (NSW) (Inspector Mansell) [2005] NSWIRComm 49; (2005) 141 IR 78 Surfing Hardware International Holdings Pty Limited v McCausland (No 6) [2007] NSWIRComm 285; (2007) 169 IR 282 Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Limited [2008] NSWIRComm 157 Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Bros Management (No 2) [2008] NSWIRComm 185

Mr O Fagir, Industrial Officer (Applicant) Transport Workers' Union of New South Wales LEGAL REPRESENTATIVES: Mr A P Joseph of counsel (Repondent) BCI Lawyers

TRANSPORT WORKERS' UNION OF NEW SOUTH WALES (ON BEHALF OF THOMAS LAWSON) AND LINDSAY BROTHERS MANAGEMENT PTY LTD

Application by Transport Workers' Union of New South Wales on behalf of its member Thomas Lawson for reinstatement of an injured employee pursuant to section 242 of the Workers Compensation Act 1987

1 This matter involves an application made by the Transport Workers' Union of New South Wales ('the TWU') pursuant to s 242 of the Workers Compensation Act 1987 for the reinstatement of its member, Thomas Lawson, to the multi-function position of local pick-up and delivery driver and trainer. 2 The application was the subject of earlier proceedings before the Commission: Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Limited [2008] NSWIRComm 157 ('the first decision'); and Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Bros Management (No 2) [2008] NSWIRComm 185 ('the second decision'). 3 The background is explained in the first decision at [1]: [1] ... Mr Lawson was employed by Lindsay Brothers Management Pty Ltd ("the respondent") from about September 1996 until 5 December 2007, when his employment was terminated for the reason that the respondent did not have suitable duties for Mr Lawson to perform because of his medical restrictions. Mr Lawson had been on restricted duties following a rotator cuff shoulder injury he sustained at work in 2001. He had only just returned from further shoulder surgery at the time of his termination. On 13 December 2007, the TWU, on behalf of Mr Lawson, wrote to the respondent seeking the immediate reinstatement of Mr Lawson. The request was refused and on 9 January 2008 the Union, on behalf of Mr Lawson, filed its application with the Commission. 4 The Commission concluded that Mr Lawson was fit for employment subject to certain medical limitations: [43] Whether or not full time employment is available to Mr Lawson in the role of driver trainer/pick-up and delivery work, the respondent has not demonstrated that no work is available for Mr Lawson. I consider that the respondent could reasonably make available for Mr Lawson part time employment as a driver trainer/pick-up and delivery driver that may involve the training of drivers, the dropping off and picking up of trailers that requires no lifting, deliveries to sites where no lifting is required and other work that requires no lifting.

[44] The difficulty I have in making any final determination about whether full time work is available and, if it is not, the extent to which part time work is available, is not knowing what Mr Lawson's general practitioner meant by "limited driving" in the medical certificate signed by him on 2 July 2008. But given its ordinary grammatical meaning it must mean that Mr Lawson's driving is to be confined within limits. That is to say, under current medical restrictions Mr Lawson is not available for full time driving duties. Further, I somewhat doubt that Mr Lawson's treating doctor envisaged limited driving as being a combination simply of training and driving in circumstances where the training role might involve only three to four weeks work in a six monthly period. 5 The parties were to confer to the details of this reinstatement before final orders were to be issued: [45] The most appropriate course, in the circumstances, is for me to make it clear that I am satisfied that Mr Lawson is fit for employment as a driver trainer/pick-up and delivery driver (including yard work), subject to the medical limitations imposed under the terms of the medical certificate signed by Dr Anderson on 2 July 2008. I am also satisfied that the respondent has that kind of employment available. What I am not clear about is whether there is full time work available for Mr Lawson to perform in a combination that caters for his medical restrictions or whether reinstatement should be to a part time position and, if so, what should be the appropriate part time hours of work.

[46] The parties are directed to confer as to the basis of Mr Lawson's reinstatement having regard to the terms of this decision. In doing so, it would be appropriate for the parties to agree on the terms of a communication to Dr Anderson explaining the terms of this decision and seeking some clarification on, or assistance in understanding, what was meant by "limited driving" in the certificate dated 2 July 2008.

[47] The parties shall report back to the Commission on the outcome of their discussions at 9.30am on Monday 15 September 2008 at which time, after hearing a brief report from the parties, the Commission will make final orders. 6 Upon reporting to the Commission on 15 September 2008, the parties were unable to provide the Commission with any firm basis upon which it could make final orders. The TWU contended that Mr Lawson was fit to resume normal full time duties. However, the Commission stated in the second decision it was not so satisfied and decided reinstatement should be on a part time basis and that during the following month the parties should confer for the purpose of making a detailed assessment of whether there was productive, full time employment available to Mr Lawson within his medical limitations: [10] I am most concerned to avoid placing Mr Lawson in a position that would aggravate or cause a recurrence of his injuries. Accordingly, I propose to take a cautious approach by reinstating Mr Lawson to part time employment as a driver but subject, of course, to his medical restrictions. The weekly hours of work for Mr Lawson shall be 25. This arrangement shall apply for one month from the date of this decision. During that time the parties shall meet 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. 7 The Commission also determined that Mr Lawson should be paid for the period he had been dismissed on the following basis: [11] Pursuant to s 243(4) of the Workers Compensation Act the Commission proposes to order that for the period from the date of his dismissal, namely, 6 December 2007 to April 2008 (the date in April does not appear to be in evidence) when Mr Lawson had another shoulder operation, the respondent shall pay to Mr Lawson an amount equivalent to what he would have earned if he had been paid at the rate of his ordinary weekly rate of pay for 25 hours per week of work for the period, less any amount Mr Lawson received by way of income from any other source of employment. In this regard, I note that the medical restrictions on Mr Lawson for the period 3 December 2007 to 3 March 2008 were "no lifting, limited driving on occasional basis only, instruction of drivers, supervision". I presume those restrictions would have remained in place up to the time Mr Lawson underwent the further operation on his left shoulder in April. No payment (other than workers compensation if applicable) shall be made for the period between the date in April 2008, when Mr Lawson would not have been available to work because of his left shoulder operation, and 7 July 2008, which is the date Dr Lawson certified that Mr Lawson was fit to return to work after his operation. From 7 July 2008 to 6 October 2008, Mr Lawson shall be paid an amount equivalent to what he would have earned if he had been paid at the rate of his ordinary weekly rate of pay for 25 hours work per week for the period, less any amount Mr Lawson received by way of income from any other source of employment. The parties may agree to any adjustments to these periods where the evidence that the Commission has relied upon is deficient.

8 The Commission made orders at [12]: [12] The Commission makes the following orders: 1. Lindsay Brothers Management Pty Limited shall reinstate Thomas Lawson to 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.

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.

For the period from the date of his dismissal, namely, 6 December 2007 to the relevant date in April 2008, Lindsay Brothers Management Pty Limited shall pay to Mr Lawson an amount equivalent to what he would have earned if he had been paid at the rate of his ordinary weekly rate of pay for 25 hours of work per week for the period, less any amount Mr Lawson received by way of income from any other source of employment. No payment (other than workers compensation if applicable) shall be made for the period from the relevant date in April to 7 July 2008. From 7 July 2008 to 6 October 2008, Mr Lawson shall be paid an amount equivalent to what he would have earned if he had been paid at the rate of his ordinary weekly rate of pay for 25 hours per week of work, less any amount Mr Lawson received by way of income from any other source of employment.

The Transport Workers' Union of New South Wales, following consultation with Lindsay Brothers Management Pty Limited, shall, within fourteen days, file and serve short minutes of order reflecting the foregoing orders. The short minutes shall identify the amounts of money to be paid to Mr Lawson. 9 Following the Commission's second decision, there were some intervening issues between Mr Lawson and his employer that were not the subject of proceedings before this Commission and nothing was done pursuant to order 2 of the second decision until the latter part of 2009. Subsequently, the Commission understands that earlier this year the respondent employed Mr Lawson on a full time basis.

10 However, the TWU on behalf of Mr Lawson now seeks an order for compensation under s 243(4) of the Workers Compensation Act for lost remuneration during the period between dismissal and reinstatement by the employer. That is to say, compensation is sought for the period during which Mr Lawson had been dismissed on the basis of what he would have been paid if he had not been dismissed. As I understand the submission, compensation is sought from 6 December 2007 to the date when the respondent decided, of its own accord, to reinstate Mr Lawson in full time employment, less any income received during that period, presumably. 11 The respondent opposes such an order. It asserts that having issued order 3 in the second decision, which was an order under s 243(4) of the Workers Compensation Act, the Commission does not have the power to make a further order under that provision.

12 Section 243(4) states: (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.

13 The respondent raises the issue as to whether the Commission possessed the residual power to issue further orders of compensation under s 243(4) of the Workers Compensation Act. 14 The position of the respondent was that the section had two limbs to be applied before the Commission may make an order for remuneration: The section allows the IRC to make an order for remuneration to be paid with two provisos: (i) It can only do so where it makes an order for reinstatement; and (ii) Any order made cannot be for an amount greater than the remuneration an applicant would have earned between the date of application and the effective date of any reinstatement order. (emphasis in original)

15 The respondent submitted that these two limbs imposed a limitation on the power of the Commission to make an order, the limitation being that such an order could only be made between the date the application is made and the date of reinstatement. 16 Mr A Joseph, counsel for the respondent, submitted: Certainly my client's view was that the power to make a compensation order is clearly set out in s 243(4) as arising between the date the application was made and the date the order for reinstatement was made. That is set out fairly clearly in the submission and reference is made to your Honour's decision in that regard. I think, without gainsaying what Mr Fagir is saying, he accepts that absent any further order there is no further basis for a further order for compensation. 17 The respondent further asserted that the first and second decisions by the Commission in relation to s 243(4) were made on the basis of the evidence of Mr Lawson's ability to perform work at the level of work that was available at the time (25 hours per week). This order was made taking into account Mr Lawson's other employment income and what he would have earned during each specific period of time before reinstatement.

18 The respondent submitted: There is no basis to suggest that in doing so, his Honour was not fully and finally dealing with any application for orders under section 243(4). 19 The respondent also submitted that the Commission has no express or implied power remaining to reconsider the terms of an order previously issued: see Hollingsworth v Commissioner of Police [2007] NSWIRComm 7; (2007) 160 IR 456.

20 The respondent contended that without any legislative power to re-open, the Commission was 'functus officio' having exercised all the functions required of it in this matter under the Act. By issuing orders for reinstatement the Commission finished exercising its functions and could not re-open them.

21 The TWU submitted that the Commission was not functus officio as the orders made on 2 October 2008 were made on an 'interim, rather than final, basis.' The orders made were for 'one month' and contingent on the existence and availability of suitable work, the details of which were unclear to the Commission at the time. 22 The TWU asserted that the orders made were tentative rather than final, and it was clearly contemplated that the Commission may need to revise its decision at a later date. The fact that the arrangement lasted more than one month did not make the orders final at the expiry of the month. 23 The TWU submitted that in making an order in relation to compensation the Commission would not be re-opening the orders but revising interim/temporary orders based on newly available details as envisaged by the second decision of 2 October 2008.

Consideration 24 There are two distinct periods to be considered in determining whether there is any basis for the applicant's claim for further compensation. The first period is 6 December 2007 to 6 October 2008. This was the period during which the Commission ordered compensation based on part time employment of 25 hours per week: see order 3 in the second decision. The second period is from 7 October 2008 until the date the respondent reinstated Mr Lawson in 2010. 25 It is quite clear, upon reading the Commission's first and second decisions and the orders made, that order 3 in the second decision is a final order and not one amenable to being re-opened: Ove Arup Pty Ltd v WorkCover Authority (NSW) (Inspector Mansell) [2005] NSWIRComm 49; (2005) 141 IR 78; Surfing Hardware International Holdings Pty Limited v McCausland (No 6) [2007] NSWIRComm 285; (2007) 169 IR 282; Hollingsworth v Industrial Court of New South Wales [2007] NSWCA 209; (2007) 166 IR 192. There is no indication that such an order was made on an interim basis, capable of being revisited. 26 In the first decision, despite the applicant having an opportunity to demonstrate it, the Commission was unable to determine whether there was full time work available for Mr Lawson to perform in a combination that catered for his medical restrictions. In the second decision the Commission continued to have reservations about Mr Lawson's capacity to return to full time employment. 27 However, it was found that part time employment had been available and orders were made accordingly, including orders for compensation for the period Mr Lawson had been dismissed (order 3 in the second decision). The Commission also provided a further opportunity for the applicant to determine whether there was productive, full time employment available within his medical limitations. Importantly, in this respect, order 2 in the second decision put the parties to the task of 'making a detailed assessment of whether there is productive, full time employment available to Mr Lawson within his medical limitations.' That is to say, the Commission was concerned with whether, as at October 2008, full time work was available to Mr Lawson within his medical restrictions to which Mr Lawson could be reinstated. It was not in the Commission's contemplation that there would be any adjustment to the compensation ordered in order 3, even if Mr Lawson had been reinstated to full time employment. 28 Even if there was power to re-open, given that there was not a sufficient basis in 2008 for the Commission to conclude that appropriate full time employment was available, it is most unlikely that position would change if the applicant were given a further opportunity in 2010 to establish the availability of such employment. It could only be on the basis of establishing that full time employment was available between December 2007 and October 2008 that Mr Lawson could succeed on a claim for commensurate compensation for that period. 29 Consequently, the Commission would not exercise its discretion, if such an exercise were available, to re-open proceedings to allow a further attempt by the applicant to demonstrate appropriate full time employment was available between December 2007 and October 2008. 30 That leaves the period between 7 October 2008 and the date Mr Lawson was reinstated by his employer to full time employment. That date was apparently earlier this year. 31 As earlier indicated, the parties did not report on the outcome of an assessment as to the availability of full time employment for Mr Lawson on 5 November 2008 in accordance with order 2 in the second decision. The reason for this was that Mr Lawson's employment was terminated for reasons unrelated to his medical condition or the availability of employment. However, Mr Lawson was reinstated by Commissioner Roberts of the Australian Industrial Relations Commission on 1 June 2009 to part time employment on the basis of a 25-hour working week: Lawson v Lindsay Brothers Management Pty Ltd [2009] AIRC 282. 32 The issue of whether full time employment was available to Mr Lawson was the subject of further proceedings before this Commission in September, November and December 2009, with the Commission making further attempts to have an assessment undertaken of whether full time work was available to Mr Lawson within his physical capability. 33 On 16 January 2010, Dr Mark Burns, an Occupational Physician, provided a report to the respondent in which it was concluded that whilst 'Mr Lawson does have medical restrictions … he also has a degree of retained work capacity. I see no reason that he could not work up to normal hours in suitable work, within his restrictions, if it was available.' 34 Whilst Dr Burns' update on Mr Lawson's capacity for work was helpful, the Commission was no further advanced in understanding whether full time work within the applicant's medical restrictions was available. 35 Subsequently, Mr Lawson's employer took a decision to reinstate him in full time employment. Mr Lawson then made his claim for full compensation for the period he had been dismissed.

36 Although the parties were to provide an assessment in accordance with order 2 in the second decision and failed to do so, it could not be said the fault for that lies entirely at the feet of the applicant. According to the decision of Commissioner Roberts, Mr Lawson was dismissed for misconduct on 17 October 2008 based on an allegation that he had used inappropriate and threatening language in a telephone conversation with the general manager of the respondent on 2 October 2008. The Commissioner found the termination of Mr Lawson's employment was harsh and the respondent was ordered to reinstate Mr Lawson from 22 June 2009. 37 As earlier stated, the Commission continued with its endeavour to resolve the question of whether full time employment was available in the latter part of 2009 and early 2010, but without success. There was no objection taken then by the respondent to the Commission's power to continue to deal with the issue. Moreover, order 2 in the second decision is not a final order and did not become so by the fact that the parties failed to abide by the order. Order 2 clearly contemplated ongoing proceedings and it is evident that if the applicant had been able to satisfy the Commission in November 2008 that suitable full time work was available it would have been open to the Commission to order Mr Lawson's reinstatement to that full time employment. 38 Therefore, I consider the question of whether appropriate full time employment was available for Mr Lawson for the period from 7 October 2008 to the date of his reinstatement by the employer remains a live issue. 39 However, whether such full time employment was available throughout the relevant period and whether the applicant was capable of performing that work, are matters for the applicant to prove before any order could be made providing compensation for the relevant period. I note that in January 2010 Dr Burns found Mr Lawson was fit for full time work within his restrictions. But all that shows is that if suitable full time work was available in January 2010 there was the prospect Mr Lawson could have been reinstated from that point. It does not demonstrate that for the entire period from October 2008 to January 2010 that Mr Lawson was fit for full time work, nor does it demonstrate that suitable full time work was available such that it would lead the Commission to order compensation as sought by Mr Lawson for that period. 40 The onus is, therefore, on Mr Lawson to prove to the Commission's satisfaction that for the period 7 October 2008 to the date of his reinstatement to full time work by the respondent he was fit for full time work within his restrictions and that such full time work was available. 41 In the circumstances, the applicant is given liberty to apply, on 14 days' notice, of his intention to pursue the claim for compensation for the period 7 October 2008 to the date of his reinstatement by the respondent in 2010. The applicant is to file and serve precise details of what is claimed by way of compensation. Subject to notice having been given of an intention to pursue the claim, the applicant is to file and serve any evidence he intends to rely on within 21 days of the date of this decision. The respondent shall have a further 21 days to file and serve any evidence in reply. The matter is listed for further directions at 9.30 am on Friday 2 July 2010. 42 Any failure by the applicant to comply with the directions will require him to show cause why the application should not be dismissed.

43 There is one further matter and that concerns the respondent's contention that s 243(4) of the Workers Compensation Act provides that orders for reinstatement may be made only between the dates of application and reinstatement. The section makes no such provision. What s 243(4) provides is that any payment ordered is not to exceed the remuneration the worker would, but for being dismissed, have received for the period between the time the worker made the application for reinstatement and the time of reinstatement ordered by the Commission. Directions

44 The Commission makes the following directions: (1) The applicant is given liberty to apply, on 14 days' notice, of his intention to pursue the claim for compensation for the period 7 October 2008 to the date of his reinstatement by the respondent in 2010. The applicant is to file and serve precise details of what is claimed by way of compensation. (2) Subject to notice having been given of an intention to pursue the claim, the applicant is to file and serve any evidence he intends to rely on within 21 days of the date of this decision. The respondent shall have a further 21 days to file and serve any evidence in reply. (3) The matter is listed for further directions at 9.30 am on Friday 2 July 2010. (4) Any failure by the applicant to comply with the directions will require him to show cause why the application should not be dismissed.

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