Construction, Forestry, Mining and Energy Union (New South Wales Branch) on behalf of Scott Anthony Elwell and Cobar Mining Services Pty Ltd and Anor [2004] NSWIRComm 32 (5 March 2004)

Last Updated: 11 March 2004

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Construction, Forestry, Mining and Energy Union (New South Wales Branch) on behalf of Scott Anthony Elwell and Cobar Mining Services Pty Ltd and Anor [2004] NSWIRComm 32

FILE NUMBER(S): 3633, 3634

HEARING DATE(S): 19/11/2003

DECISION DATE: 05/03/2004

PARTIES:

APPLICANT/ NOTIFIER (Matter 3633, 3634/03)

Construction, Forestry, Mining and Energy Union (New South Wales Branch) on behalf of Scott Anthony Elwell

RESPONDENT (Matter 3633, 3634/03)

Cobar Mining Services Pty Ltd

SECOND RESPONDENT (Matter 3634/03)

Cobar Management Pty Ltd

JUDGMENT OF: Sams DP

LEGAL REPRESENTATIVES

APPLICANT/NOTIFIER (Matter 3633, 3634/03)

Mr A Bukarica,

Construction, Forestry, Mining and Energy Union (New South Wales Branch)

FIRST RESPONDENT (Matter 3633, 3634/03)

Mrs K Keady, Solicitor

SECOND RESPONDENT (Matter 3634/03)

Mr K Laing, Cobar Management Pty Ltd

CASES CITED: Australian Workers' Union v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365

Banning v Great Lakes Council [2002] NSWIRComm 47

Cannon v LEP International Pty Ltd (1998) 83 IR 415

CFMEU on behalf of O'Dwyer and Another v Pasminco Limited (Administrator Appointed) [2002] NSWIRComm 300

Commonwealth Steel Co Ltd v Ward (unreported, IRC3144 of 1993, Hill, Hungerford JJ and Shiels C, 16 December 1994)

Fabros v Hotel Intercontinental Sydney (1993) 53 IR 193

IGA Distribution Pty Ltd v Moses (No 2) (2002) 114 IR 307

Jones v Dunkel (1959) 101 CLR 298

Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617

Orange City Bowling Club Limited v Federated Liquor and Allied Industries Employees' Union of Australia, New South Wales Branch (1979) AR 90

Silaphet & Ors v South Western Sydney Area Health Service (1998) 80 IR 365

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: SAMS DP

5 March 2004

Matter IRC03/3633

Construction, Forestry, Mining and Energy Union (New South Wales) (on behalf of Scott Anthony Elwell) and Cobar Mining Services Pty Ltd

Application by Construction, Forestry, Mining and Energy Union (New South Wales) on behalf of its member Scott Anthony Elwell for reinstatement of an injured employee pursuant to section 93 of the Industrial Relations Act 1996

Matter IRC03/3634

Notification under section 130 by the Construction, Forestry, Mining and Energy Union (New South Wales) of a dispute with Cobar Mining Services Pty Ltd & anor re victimisation of its member

DECISION

[2004] NSWIRComm 32

1 These two matters were filed on 2 July 2003 by the Construction, Forestry, Mining and Energy Union (New South Wales Branch) ('the Union'). The matters essentially relate to the termination of employment of Mr Scott Anthony Elwell ('the applicant') on 7 April 2003. The dispute notification, lodged under s130 of the Industrial Relations Act 1996 ('the Act') alleged the victimisation of Mr Elwell, by Cobar Mining Services Pty Ltd ('the first respondent') and Cobar Management Pty Ltd (CMPL) - otherwise known as the CSA Mine ('the second respondent').

2 The second matter seeks the reinstatement of Mr Elwell as an injured employee pursuant to s93 of the Act. Both matters were listed for conciliation conferences in Broken Hill on 21 and 22 July 2003. Mr A Bukarica, with Mr E Butcher, represented the Union. Mrs K Keady, solicitor, represented the first respondent and Mr R Laing represented the second respondent.

3 During the conciliation conferences, the Commission was informed that a settlement of the dispute, insofar as the second respondent was concerned, had been reached. In these circumstances, Mr Laing was granted leave to withdraw from the proceedings.

4 The dispute proceedings involving the first respondent and the s93 proceedings against it, were not able to be resolved. A finding of unsuccessful conciliation was made and directions were issued in preparation for the arbitration of the claims.

BACKGROUND

5 The applicant is 35 years old with a dependent spouse and four children. He has lived and worked in western New South Wales for most of his life. Apart from a brief period of casual employment in June 2003, the applicant has been unemployed since his dismissal.

6 The applicant commenced employment with the respondent on 26 November 2001 after being interviewed by Mr Andrew Dare (Branch Manager) and Mr Tony Everuss (Operations Manager) of Cobar Mining Services Pty Ltd.

7 Mr Dare had known the applicant for some years prior, when they both worked at the Elura Mine in Cobar. Mr Dare regarded the applicant as an enthusiastic employee. Mr Dare said he employed the applicant as a trades assistant. However, the applicant said he was always referred to as a "service man" whose tasks did not involve direct supervision. The applicant described his tasks as:

Changing oil, lubricants and hoses on mining machinery with minimal or no supervision;

performing stores work as required with minimal or no supervision;

performing welding repairs to loader buckets, truck trays and similar equipment, normally without supervision;

assisting other employees and trades persons in a range of tasks including major as well as routine maintenance on mining equipment.

8 The applicant claimed to have regularly worked sixty hours a week. However, in oral evidence, he accepted that he worked only two occasions of sixty hours.

9 The applicant holds a TAFE qualification in electric arc and oxy welding and claimed he performed welding tasks on a regular basis, particularly as another boilermaker was frequently off work. Mr Dare acknowledged the applicant's willingness to work, but said he only did small welding jobs.

10 The applicant said that during his employment with the respondent he received no formal training, nor were there any discussions with management about his skills or qualifications.

11 The applicant deposed that prior to his dismissal, he had never been advised or consulted about any requirement of CMPL that only trade qualified persons were to be engaged on its site. The applicant said he was never offered any retraining, relocation or redeployment by the respondent.

12 The applicant's letter of termination was expressed as follows:

Dear Scott

We are please (sic) to see that you are now fit to return to pre-injury duties. As you are aware, our ability to continue to find light duties for you were becoming increasingly difficult but we hope that your rehabilitation has been fruitful.

In recent times however we have been receiving continued instructions from Cobar Management to use only trade qualified personnel due to an ongoing review of skills base and safe work practices on the CSA site.

We have investigated the possibility of deploying you elsewhere within our Cobar operations but there are no suitable positions available at this time.

For this reason, we unfortunately have to advise you that your position as non-tradesperson has been made redundant.

Your redundancy entitlement will be paid up along with 2 weeks pay in lieu of notice as required by the Cobar Mining Services Certified Agreement 2002.

We wish you well in your future endeavours.

Yours faithfully

Tony Everuss

Mining Operations Manager

19 December 2002 accident

13 The applicant was injured at work on 19 December 2002 when a vehicle torque converter replacement fell on him when he was under the truck as it was being fitted. He was assisting a tradesman at the time, Mr Martin Steel.

14 The applicant was hit on the head and, although he was wearing a hard hat, he was later diagnosed at Cobar Hospital as suffering concussion, soft tissue damage and bruising. He was later advised that he had suffered a compressed vertebrae in the neck.

15 Immediately after the accident, the applicant claimed that Mr Dare was very keen for him to get back to work. However, he was determined unfit to work for three weeks.

16 The applicant said that at the time of the accident, he had never been shown a work procedure for the removal and replacement of a torque converter. He claimed to have performed this task on at least half a dozen occasions and at times when a supervisor was present. However, he said he had never been warned the procedure was incorrect or hazardous.

17 A memo was subsequently issued by Mr Everuss describing the safety requirements for such a task.

To: All Employees

On Monday 23rd December 2002 I attended an incident review at the CSA Mine. This review related to an incident where one of our Employees was injured as a result of several factors.

- Incorrect slinging of a Component

- Failure to consult the Service Manual

- Failure to consider the risks

- Working under a load supported only by a sling

Of major concern was that all the Employees involved in this particular Job were negligent to SAFE WORKING PROCEDURES AND THE SAFETY OF THEIR FELLOW WORKERS.

THIS TYPE OF IGNORANCE WILL NOT BE TOLERATED.

18 The applicant said he felt angry and alarmed when he saw this memo as it appeared the company was attempting to blame him and Martin Steel for the accident. As a result, the applicant contacted his Union official, Mr Butcher about his safety concerns. He said Mr Butcher advised him to present a letter in person to the company - which he did on 9 or 10 January 2003. He said Mr Everuss appeared angry when he was presented with the letter. In oral evidence, when Mr Everuss was asked about this letter, he said he did not respond in writing to the applicant, but had responded verbally at a meeting. Mr Everuss refuted the suggestions that the letter had annoyed him or that it was the motivation to terminate the applicant's employment. The applicant had received no reply to this letter.

19 After his dismissal, the Union initiated a Freedom of Information ('FOI') request to the Department of Mineral Resources ('the DMR') in respect to all documents related to the accident. The DMR's report confirmed that no written work procedure for changing a torque converter was in place at the time of the accident. After the accident Mr Dare had informed the Cobar Mine that a written procedure would not be in place until 27 February 2003.

20 The applicant claimed that the respondent did not lodge a workers' compensation claim on his behalf until 24 January 2003. He denied that Mr Dare had asked him to fill in the form. Rather, Mr Dare had said "he would take care of everything". In cross examination the applicant agreed that when he had two previous workers' compensation claims, he had filled the forms out himself.

21 On 28 February NRMA Insurance accepted liability. Between 19 December 2002 and 9 February 2003, the applicant was certified unfit for work. Between 7 February and 7 April, he was able to return to work on restricted duties and did so.

22 On 7 April, the applicant was certified fit to return to normal duties. He was dismissed that day upon his attendance at work for normal duties.

23 After his termination the applicant entered into a rehabilitation program with a firm called Recovre. The purpose of the program was to find him a job. He believed the program was paid by the insurance company.

24 In oral evidence, the applicant agreed that the respondent allowed him to take annual leave when it wasn't due and that it found above ground work for him on light duties after the 19 December 2002 accident. He agreed, that because he had difficulty wearing a hard hat, he could not work under ground.

Respondent's evidence

25 The respondent relied on the affidavit and oral evidence of Mr Dare and Mr Everuss. Mr Bob Johnson, Inspector, DMR, was subpoenaed to give oral evidence. To the extent the respondent's evidence dealt with non contested matters, I will not repeat it.

26 Mr Andrew Dare gave evidence that the duties and responsibilities of a trades assistant and service person were one and the same. They basically involved menial repetitive duties in assisting the trades person. Mr Dare said that the applicant was not required to, nor did he, regularly work without supervision. The applicant had asked for more interesting work and, as he held a welding certificate, he would occasionally perform small welding jobs. He was not welding for up to eight hours at a time, as he had claimed. Mr Dare said he was appreciative of the applicant's willingness to work. He regarded him as a hard working, enthusiastic and punctual employee.

27 Mr Dare referred to an incident on 10 May 2002 when the applicant badly burnt his foot when hot slag spilled down his boot. The investigation found that the applicant had not worn the correct protective clothing. He was reprimanded for being careless. It was made clear to his supervisors that the applicant was not to work outside his duties as a trades assistant. Mr Dare agreed that the applicant may have continued to perform small welding jobs after this accident.

28 A further incident was recorded on 17 July 2002 when the applicant was reprimanded over safety breaches involving his name tag. At the time it was noted that the management of the CMPL Mine acknowledged the applicant's workshop housekeeping and general enthusiasm for his duties.

29 Mr Dare deposed that, on several occasions, he had discussed with the applicant his skills and duties. The applicant had been keen to broaden his work duties. Training was provided on the job when assisting the trades persons. Arrangements had been made for the applicant to attend a senior first aid course, but he was unable to attend due to a lost time injury.

30 Mr Dare gave evidence of the 19 December 2002 accident. He said the engine block had not been properly supported. This was contrary to the service manual instruction to use the two sling method. He believed the applicant had known the correct procedure. Mr Dare believed the employees involved had been responsible for the accident.

31 Mr Dare said he attended the hospital after the applicant was admitted. He did so because of his concern for injured employees and to ensure that senior management was briefed on the accident and the extent of the applicant's injuries. He denied he had said "we can't afford to have you off work." Mr Dare also spoke to the applicant's wife that night. He had not sought to pressure the applicant to return to work, but simply wanted to know how long he might be off work.

32 Mr Bob Johnson from the DMR had conducted an investigation into the accident. At a meeting with the employees on 6 January 2003, Mr Dare deposed that it was found that the torque converter had been rigged incorrectly. Mr Dare said the employees, including the applicant, admitted to this and said words to the effect "we cut corners and stuffed up." In cross examination, Mr Dare acknowledged the applicant had not used these words, but Mr Steel may have. Mr Dare deposed that Mr Johnson was "comfortable" with the existing rigging procedure. However, in oral evidence, he conceded that Mr Johnson had not used the word "comfortable" and, in fact, had said that there was a need to ensure a written procedure was in place.

33 The applicant had claimed that he was pressured into attending a meeting on the day after the accident and that he was treated badly by Mr Everuss at the meeting with the DMR. Mr Dare denied both claims.

34 Mr Dare said that after the incident he had found light duties for the applicant, although over time, this became increasingly difficult. Mr Dare said that, to assist with the applicant's recovery, a rehabilitation provider was engaged to assess his skills, abilities and employment options. However, it had still been difficult finding the applicant suitable work.

35 Mr Dare said the use of trades assistants became an ongoing concern for CMPL and the issue was discussed with them at a maintenance review meeting on 6 December 2002. Mr Dare deposed that in mid January 2003, Mr Everuss informed him that CMPL was firm in only having trade qualified personnel working on site. CMPL believed it would improve manpower flexibility and reduce the risk of accidents.

36 Mr Dare and Mr Everuss were extremely concerned to keep CMPL happy. They discussed alternative options for the applicant. However, Mr Everuss saw no alternative but to make the applicant redundant. On or about 3 April the decision was finalised. The applicant was advised on 7 April. Mr Dare denied telling the applicant, "I did not see this coming Scott." He said the applicant was the only unqualified person and the only one made redundant.

37 Mr Dare deposed that, at no stage, did the applicant's doctor, Dr Coleman, contact him or anyone else employed by the respondent. For this reason he did not believe Dr Coleman was in a position to assert that the applicant was unfairly dismissed.

38 Mr Dare reiterated that safety was one of the respondent's main drivers. Production was never put before safety. In fact, this would go against the interests of the company in ensuring it maintained a strong reputation for safety. After each safety incident, all employees were informed of what had occurred and reminded of the correct safety procedures.

39 Mr Dare confirmed that the applicant had two workers' compensation claims before the 19 December 2002 accident. On each occasion the appropriate forms were completed and lodged. The applicant had returned to full duties after each incident.

40 Mr Dare gave evidence, in cross examination, that at the time of the 19 December accident the supervisor, Mr Clint Johnson, was not on site. Mr Dare accepted that Mr Steel, although not a qualified Fitter/Mechanic, may have instructed the applicant to get underneath the truck. Mr Dare agreed that there was pressure on the respondent to complete the converter change quickly, as downtime was the respondent's liability. Mr Dare further agreed that the method chosen by the respondent was one of the two options available and it was the faster option.

41 Mr Dare agreed that this accident resulted in a fairly serious injury to the applicant. He denied, however, pressuring him to attend a meeting the next day. The applicant had not indicated he was too unwell to attend. Had he said so, Mr Dare would have respected his situation.

42 Mr Anthony James Everuss has been the respondent's Mining Operations Manager for eight years. Much of his affidavit and oral evidence replicated Mr Dare's evidence or was not disputed. The applicant's training and course certificates were annexed to Mr Everuss' affidavit. Also attached were various safe work practice documents signed by the applicant as having been read and understood by him.

43 Mr Everuss agreed that welding work was not trades assistant work. Mr Everuss confirmed that a supervisor, Mr Wheeler had described the applicant's duties as welding and general service work.

44 Mr Everuss described an incident on 17 April 2002, in which the applicant injured his knee and was on light duties for a week. Mr Everuss also referred to the 10 May burns incident, the 17 July tagging incident and the 19 December torque converter accident. Mr Everuss said that, in normal circumstances, the tagging incident was a dismissible offence. However, Mr Dare had argued against the applicant's dismissal and for the applicant to be given another chance. This was so because no one questioned the applicant's efficiency, punctuality or enthusiasm. He was well regarded.

45 Mr Everuss said that after the three accidents involving the applicant, all employees were reminded of the correct safety procedures. This was the usual procedure after any accident.

46 Mr Everuss believed that as the applicant had experience in changing torque converters and possessed a Safe Lifting Certificate, it might reasonably be assumed that he would have been aware of the risk he exposed himself to by laying under a load supported by only one sling. He had expected the applicant was familiar with the slinging requirements. Service manuals were readily available in the workshop.

47 After the accident, Mr Everuss issued a strongly worded memo to all employees about the need to consult the service manual and to consider the risks involved in any job. He said the memo was not specifically directed to the applicant. Mr Everuss said he had never said, or implied, that the accident was the applicant's fault.

48 In oral evidence, Mr Everuss denied interrupting or belittling the applicant at the meeting after the accident. Mr Everuss said he merely wanted to understand what had occurred.

49 Mr Everuss referred to the meeting with Mr Johnson and the employees on 6 January. Mr Johnson's report included this comment:

... Though there was not a specific procedure for the task, the employees did not follow the procedure that was available in that they only used one sling. The procedure called for two slings to be used.

50 Mr Everuss said he and Mr Dare attended to the implementation of all of Mr Johnson's directions, which included writing a formal procedure for inframe torque converter replacement.

51 Mr Everuss conceded that the company was partly at fault for the accident, but he believed that, had the employees followed correct procedure, the accident would not have happened. Mr Everuss confirmed that CMPL had raised on a number of occasions that they were not comfortable with the applicant's safety record.

52 Mr Everuss insisted that the respondent did not in any way sacrifice safety procedures in order to get a piece of machinery back to work.

53 On the day the applicant returned to full duties, Mr Everuss advised him that his position was redundant as a result of the requirements of CMPL concerning qualified labour. Mr Everuss claimed that the applicant was not made redundant until he was fully fit. That decision was made in order to ensure that he could pursue alternative employment and would not be unduly disadvantaged.

54 Mr Everuss gave evidence that, at a meeting on 6 December with CMPL, the company had raised concerns about a direct link between workplace injury and non skilled personnel. It had also felt that the use of non tradespersons restricted flexibility. Mr Everuss referred to the minutes of this meeting and said that, as a result, CMPL adopted a policy requiring all staff employed on site to be qualified trades persons or senior apprentices.

55 Mr Everuss agreed that at that meeting, CMPL had also discussed what overall efficiencies could be found. He agreed the minutes do not record CMPL instructing, or directing, the respondent to dismiss non trades personnel.

56 Mr Everuss deposed that in mid January 2003, he had received verbal advice, from Mr Wayne Taylor of CMPL, that only skilled tradesmen would be permitted on site to carry out maintenance functions. In this regard, Mr Everuss relied on a letter from CMPL dated 21 May 2003 which was in these terms:

Dear Tony,

This letter is to confirm CMPL's stance with respect to the minimum level of qualification CMS is to provide for on site maintenance labour as discussed between Nigel Starkey and Andrew Dare on the 6th December 2002 and our subsequent meeting on the 11th February 2003.

Until further notice CMS is to provide maintenance labour with the following minimum qualifications:

- Heavy Mobile Plant Trades Certificate,

- Boilermaker Trades Certificates, and/or

- Electrical (Automotive) Trades Certificate

CMPL is prepared to accept a level of apprentice labour provided CMPL is satisfied that appropriate supervision training and control of the individual(s) can be demonstrated by CMS.

If there are any questions with respect to this position please don't hesitate to contact me.

Yours faithfully,

Cobar Management Pty Ltd

57 When asked why an officer from CMPL was not giving evidence in these proceedings, Mr Everuss said that when he had approached the mine manager, he had been reluctant to do so. Mr Everuss didn't pursue it because he "didn't want to upset them." Mr Everuss had also asked Mr Wayne Taylor from CMPL to give evidence, but he declined on legal advice. Mr Taylor had also declined to put in writing why he wouldn't attend the Commission proceedings.

58 Mr Everuss said he had considered what alternatives might be available for the applicant. The respondent only had one other trades assistant and other redeployment opportunities were non existent. (That trades assistant had since been made redundant). Mr Everuss said the respondent's available work had further diminished with the change of ownership of the two mines. It now only had the CSA Mine in Cobar as a customer. Mr Everuss agreed that he had not discussed with the applicant what options might be available for redeployment. However, options had been considered by various managers over a few weeks. In cross examination, Mr Everuss was asked about the extent of his inquiries of alternative work "beyond Cobar."

59 Mr Everuss did not believe that light duties were available in an underground mine. The applicant had not returned to normal light duties after the 19 December accident. Mr Everuss said that the storeperson position involved customer contact, more disciplined computer skills, knowledge of parts, inventory and freight forwarding and return. He didn't believe the applicant had these skills.

60 Mr Everuss deposed that he and Mr Dare liaised with the NRMA and Recovre to ensure the applicant's complete rehabilitation and fitness for pre injury duty. Mr Everuss said that the respondent arranged, and paid for, Recovre to perform a vocational assessment that was designed to assist the applicant in gaining suitable employment.

61 Mr Robert Johnson had conducted many mine accident inquiries and gave short oral evidence of his involvement with the investigation of the 19 December 2002 accident.

62 After the accident, Mr Johnson had prepared a report and made certain recommendations. He believed those recommendations had been adopted.

63 Mr Johnson said he could not recall if Mr Everuss constantly interrupted the applicant at the meeting held to discuss the accident.

SUBMISSIONS

For the applicant

64 Mr Bukarica put that the applicant was an injured employee as defined in s91(1) of the Act as he was entitled to receive workers' compensation and was undertaking medical treatment and rehabilitation at the time of his dismissal. Section 95 of the Act presumes that an injured employee was dismissed for reasons of his/her injury. Mr Bukarica said that this presumption can only be rebutted if the employer is able to demonstrate that the injury was not a "substantial and operative cause of the dismissal." The expression should not be read down to mean the "sole" or "only" cause. See Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617.

65 Mr Bukarica said the proper interpretation of this section of the Act, as expressed in the Minister's Second Reading Speech, was to protect and benefit injured workers.

66 Mr Bukarica submitted that the purported reason for the applicant's dismissal was entirely hearsay and the only evidence (the letter of 23 May 2003) was produced a month after the applicant commenced proceedings for reinstatement. Mr Bukarica put that the fact the respondent had failed to call direct evidence from CMPL must lead to a Jones v Dunkel inference (1959) 101 CLR 298.

67 Mr Bukarica said the balance of the applicant's evidence supports the contention that the substantial and operative cause of his dismissal was the injury he sustained on 19 December 2002. Moreover, there may have been other motivations of the respondent, such as to deflect blame for the accident. The applicant had also raised health and safety concerns which the respondent chose to ignore.

68 Mr Bukarica sought the reinstatement of the applicant or, in the alternative, to a position no less advantageous. The Commission has flexibility in deciding which position the employee may fill. Mr Bukarica put that, even if no position existed to which the applicant could be reinstated, the Commission could still notionally reinstate the applicant. See CFMEU on behalf of O'Dwyer and Another v Pasminco Limited (Administrator Appointed) [2002] NSWIRComm 300.

69 Pursuant to s93 of the Act, Mr Bukarica sought an order for the payment of lost wages for the period commencing at the date of lodgement of the application to the applicant's reinstatement, at $900 a week. He also sought an order that the applicant's period of employment be taken not to have been broken by the dismissal (see s 97(1)).

70 In supplementing his written submissions, Mr Bukarica acknowledged Mrs Keady's concessions that the applicant was an injured employee, for the purposes of the Act, and that the onus was on the employer to rebut the presumption that the reason for the dismissal was the applicant's injury.

71 Mr Bukarica submitted that the applicant had no opportunity to test what CMPL intended by its alleged directive not to allow non tradespersons on its site. It was not good enough to rely on a letter dated a month after the applicant commenced litigation.

72 Mr Bukarica squarely put that reinstatement was sought by the applicant as the Act was specifically drafted for employees in the applicant's situation. Even if there was no job to go to, the Commission could still restore the employment relationship. It was then incumbent on the employer to have a proper examination of the available options.

For the respondent

73 In referring to the statutory framework of Pt 7 ch 2 of the Act, Mrs Keady conceded that the Commission had jurisdiction to determine this matter. However, she stressed that the applicant's injury on 19 December 2002 was not the substantial and operative cause of his dismissal.

74 It was not disputed, Mr Keady said, that the applicant was assessed by his treating doctor as fit to return to normal duties on 7 April 2003. However, it was the respondent's case that the applicant's position had become redundant as a result of its client's direction that only trades persons or senior apprentices be permitted to work on its site. In support of this submission, Mrs Keady referred to the minutes of a meeting between CMPL management and the respondent on 6 December 2002 and a letter from the mine manager to the respondent dated 21 May 2003. She also relied on the evidence of Mr Dare and Mr Everuss. Mrs Keady rejected a Jones v Dunkel inference being available in view of the failure to bring direct evidence from CMPL management.

75 Mrs Keady submitted that the issue in this case was not the injury to the applicant or the circumstances surrounding the accident. Rather it was the right of an employer to introduce a change in its operations for commercial or business reasons. See Cannon v LEP International Pty Ltd & Another (1998) 83 IR 415.

76 Mrs Keady forcefully argued the impracticality of reinstating the applicant. The respondent simply had no trades assistant positions available at any of its mine sites at Cobar or elsewhere. In fact, it will have even less work when its contract at the Peak Gold Mine comes to an end (December 2003). Mrs Keady cited Commonwealth Steel Co Ltd v Ward (unreported, IRC 3144 of 1993, Hill, Hungerford JJ, Shields C, 16 December 1994) as authority for the proposition that a position must be available in the sense that the position is capable of being used by, or is at the disposal of the employer. See also IGA Distribution Pty Ltd v Moses (No 2) (2002) 114 IR 307 and Silaphet & Ors v South Western Area Health Service (1998) 80 IR 365.

77 Mrs Keady also put that the respondent had gone to great lengths to assist the applicant, not only during his employment, but after his injury of 19 December. It had only waited to make him redundant when he was fit for work because it was more likely he would be able to find alternative employment. Mrs Keady pointed out that the applicant had returned to work after two previous workplace injuries.

78 Mrs Keady added that, faced with a directive from its client, the respondent had maintained its rehabilitation obligations to the applicant and then paid him his full redundancy benefits. Mrs Keady asked the Commission to dismiss both matters before the Commission.

79 In reply to Mr Bukarica's submissions, Mrs Keady said that this was not an unfair dismissal case. The Union had opted not to pursue such a case in the Australian Industrial Relations Commission. She said that elements of unfairness under Pt 6 ch 2 of the Act simply don't arise in this case. The Pasminco case could be distinguished in this regard, she said.

80 Mrs Keady submitted that the Act was intended to provide fairness for both parties. There needed to be consideration of the operational requirements of the employer.

81 As to not calling CMPL management, Mrs Keady put that doing so may have put further jobs at risk in regard to the respondent's contract with CMPL. The mine owner had already demonstrated a reluctance to be involved in earlier proceedings. Mrs Keady described the respondent's position as being "between a rock and a hard place." In any event, Mrs Keady observed that the Union could have subpoenaed CMPL management, but chose not to do so.

82 Mrs Keady acknowledged that the provisions of the Act were designed to protect vulnerable employees. However, she noted that the Act was not designed to override the requirment for high standards of occupational health and safety.

83 Mrs Keady emphasised that the evidence did not disclose a cavalier attitude by the respondent towards the applicant. On the contrary, it had conceded he was a good and enthusiastic employee. The respondent had given him earlier chances after safety breaches and had sought to find him alternative work.

CONSIDERATION

84 Notwithstanding that the applicant was employed under the terms of a Federal industrial instrument, both parties acknowledged, correctly in my view, that there was no jurisdictional impediment to the Commission determining this matter pursuant to the provisions of Pt 7 ch 2 of the Act; see Fabros v Hotel Intercontinental Sydney (1993) 53 IR 193.

85 The relevant sections of the Act are expressed as follows:

92 Application to employer for reinstatement of dismiss injured employee

(1) If an injured employee is dismissed because he or she is not fit for employment as a result of the injury received, the employee may apply to the employer for reinstatement to employment of a kind specified in the application.

(2) The kind of employment for which the employee applies for reinstatement cannot be more advantageous to the employee than that in which the employee was engaged when he or she first became unfit for employment because of the injury.

(3) The employee must produce to the employer a certificate given by a medical practitioner to the effect that the employee is fit for employment of the kind for which the employee applies for reinstatement.

93 Application to Commission for reinstatement order if employer does not reinstate

(1) If an employer does not reinstate the employee immediately to employment of the kind for which the employee has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the employee), the employee may apply to the Commission for a reinstatement order.

(2) An industrial organisation of employees may make the application on behalf of the employee.

(3) The 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 employee was dismissed.

86 It seems to me that two questions arise for determination in this matter. Firstly, was the applicant an injured employee for the relevant purposes of Pt 7 ch 2 of the Act? If so, was the applicant dismissed for reasons of his injury? The respondent's case rested primarily on the argument that the applicant's dismissal arose as a direct consequence of a direction from CMPL that non tradespersons were no longer permitted to perform maintenance work on its site. I shall return to this submission later.

87 While both parties accepted that the applicant was an "injured employee" for the purposes of the Act, this conclusion needs some explanation. This is so, because the applicant was dismissed after he had been declared fit for work. Could it therefore be properly said that the applicant was an "injured employee" at the time of his dismissal? Section 91(1) defines an injured employees as:

For the purposes of this Part, an injured employee is an employee who receives an injury for which the employee is entitled to receive compensation under the Workplace Injury Management and Workers Compensation Act 1998, or the Workers' Compensation (Dust Diseases) Act 1942.

88 In support of his arguments, Mr Bukarica referred the Commision to Banning v Great Lakes Council [2002] NSWIRComm 47. However, I am not entirely convinced that Banning is analogous to the facts and circumstances disclosed in this case; except, of course, to the extent that Harrison DP usefully dealt with the legislature's intention of Pt 7 ch 2 and concluded as follows:

[72] The clear and unambiguous objective of this part of the legislation is to provide a security of employment to persons who have suffered a work related injury and to continue injured workers in employment so far as practicable. It is beneficial legislation and is to be approached on that basis.

89 In Banning, his Honour dealt with the dismissal of an injured employee and an allegation of a breach of s99 of the Act. In reaching his conclusion, his Honour described the breach as "unlawful, rendering the dismissal harsh, unreasonable and unjust". In this instance, however, the injured employee was dismissed on the very day he was declared fit to resume pre-injury duties. Whatever might be said about a strict literal interpretation of the section, in my view, the circumstances of this case are happily convergent with the beneficial intention of Pt 7 ch 2 of the Act.

90 The uncontested evidence was that the applicant was continuing medical treatment and rehabilitation after he was declared fit to return to pre injury duties on 7 April 2003. It is not too difficult to imagine a situation where an employee is fit to return to normal duties, but still requires ongoing rehabilitation and medical treatment in order to achieve a complete recovery from an injury.

91 In such circumstances an employee, in my opinion, continues to be an injured employee for the purposes of Pt 7 ch 2 of the Act. I am fortified to this conclusion by the earlier reference to the legislative provisions as being beneficial in their intent. It must follow, therefore, that the applicant was an injured employee when dismissed. I find accordingly.

92 I turn then to consider the more difficult question of whether the applicant's dismissal was as a result of his injury or for some other reason or reasons? Section 95 of the Act imposes an obligation on an employer to demonstrate that an injury to an employee was not a substantial and operative cause of a dismissal. The section is expressed as follows:

95 Presumption as to reason for dismissal

(1) In proceedings for a reinstatement order under this Part it is to be presumed that the injured employee was dismissed because he or she was not fit for employment as a result of the injury received.

(2) That presumption is rebutted if the employer satisfies the Commission that the injury was not a substantial and operative cause of the dismissal of the employee

93 I should say, at this juncture, that I have serious reservations with accepting the respondent's contention that the applicant's dismissal had nothing to do with his injury. I am drawn to this conclusion from the following observations of the evidence.

94 Firstly, I reject the assertion that the respondent waited until the day the applicant was fit for normal duties before making him redundant because it was concerned as to his re-employment prospects. It would have been blatantly obvious that the applicant's employment prospects were very poor, whatever his circumstances. Moreover, there was no evidence that this reason was told to the applicant at the time of his dismissal.

95 Secondly, the applicant had in a relatively short time, three workers' compensation claims and a number of other warnings about safety breaches. Indeed, Mrs Keady observed:

Well, that is why I have raised the fact that the employer had been counselling and telling the employee, "You have got to be very, very careful in relation to OH&S", and the evidence of that is before you.`

96 More importantly however, there was no direct evidence from any officer of CMPL that at the time of the applicant's dismisal, it had imposed a condition on its contractors that non tradespersons were no longer permitted to conduct maintenance work on site. The only documentary evidence purporting to impose such a requirement was dated one month after the applicant commenced reinstatement proceedings (23 May 2003).

97 It was said that the minutes of a meeting between the respondent and CMPL, held on 6 December 2002, was evidence that CMPL had changed its operating requirements on site. On any proper reading of this document, it did nothing of the sort. Reliance was placed on this extract from the minutes:

Cobar Mining Services are currently running a series of advertisements for experienced Mechanical Tradespeople. The issue of using Trades Assistants has proven to be inflexible with respect to rosters. The ability of a Trades Assistant to work unsupervised has also restricted our flexibility in responding to a Machine break down's (sic) quickly. CMS are currently reviewing this situation.

This reference merely noted the concerns of CMPL. It did not, as Mr Everuss asserted, indicate CMPL's preference for tradespersons, let alone constitute a directive to that effect. Moreover, the rider in the minutes "CMS are currently reviewing the situation," would indicate that no firm decision had been taken.

98 It must be conceded that the applicant performed tasks which were not always strictly limited to non trades work; welding work, for example. The applicant had worked on the site over many months. There was no plausible explanation as to why it was suddenly necessary to effectively ban the applicant from working on the site. Certainly it appears that no directive from WorkCover or the DMR was issued to that effect.

99 The failure to call or subpoena evidence from officers of CMPL when it was obvious such evidence was crucial to the respondent's case must, in my opinion, give rise to a Jones v Dunkel inference. It is simply not good enough for the respondent to claim it was reluctant to subpoena its major client. I note that CMPL had earlier appeared in related dispute proceedings involving the applicant (Matter IRC3634 of 2003).

100 I also accept Mr Bukarica's submission that the expression "substantial and operative cause" should not be read down to mean the sole or only cause. Even if there were other reasons for the applicant's dismissal, I am well disposed to find that the applicant's injury was a primary motivation for the respondent's decision to dismiss him.

101 Even if I be wrong about the above conclusions, the applicant in my opinion, was denied procedural fairness such as to warrant a conclusion that his dismissal was manifestly unfair. This is so from the uncontested evidence that the applicant was never told (until the day of his dismissal) that CMPL had allegedly imposed the restriction on non tradespersons. Moreover, there was no attempt to retrain or relocate the applicant in the light of these alleged operational requirements.

102 Accordingly, I find the applicant was dismissed for reasons of his injury and that such a dismissal was unfair, both substantively and procedurally.

Remedy

103 Mr Bukarica sought reinstatement of the applicant pursuant to ss 93 and 94 of the Act. Section 94 is expressed as follows:

94 Order by Commission for reinstatement

(1) The Commission may, on such an application, order the employer to reinstate the employee in accordance with the terms of the order.

(2) The Commission may order the employee to be reinstated to employment of the kind for which the employee has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the employee), but only if the Commission is satisfied that the employee is fit for that kind of employment.

(3) If the employer does not have employment of that kind available, the Commission may order the employee to be reinstated to employment of any other kind for which the employee is fit, being:

(a) employment of a kind that is available but that is less advantageous to the employee, or

(b) employment of a kind that the Commission considers that the employer can reasonably make available for the employee (including part-time employment or employment in which the employee may undergo rehabilitation).

(4) If the Commission orders the employee to be reinstated, it may order the employer to pay to the employee an amount stated in the order that does not exceed the remuneration the employee 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.

104 Consequential orders for the payment of wages from 2 July 2003 to reinstatement and an order for no loss of continuity were also sought; see s94(4) and s97(1).

105 The respondent strongly resisted the reinstatement of the applicant. It argued that the respondent is a small employer and has no trades assistant positions available in Cobar or elsewhere. Notwithstanding the vigour of Mrs Keady's submissions, I have not been persuaded of the impracticality of reinstatement for the following reasons:

106 Section 94 of the Act envisages that reinstatement may be ordered on terms which are less advantageous to the employee or to employment of a kind that "the employer can reasonably make available for the employee (including part-time employment or employment in which the employee may undergo rehabilitation)."

107 It is trite to observe that the contract mining industry is subject to constant change as a direct result of the winning or losing of contracts. The respondent's circumstances described to the Commission in 2003 might be very different today. Moreover, Mr Bukarica's reliance on the decision in CFMEU on behalf of O'Dwyer and Another v Pasminco Limited is, I think, entirely to the point. In that case, after citing the relevant passages from Orange City Bowling Club Limited v Federated Liquor and Allied Industries Employees' Union of Australia, New South Wales Branch (1979) AR 90 and AWU v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365, the Commission said at paras 128-130:

It seems to me that if the Commission has the power to reinstate an employee where no vacancy exists, then surely there is the power to reinstate where no job exists, particularly in the context of the limited scope of the order which is sought here. If, in the result, particular obligations arise from the re-established employment relationship, then so be it. There is nothing remarkable about that.

I am of the view that there can be no real issue of the impracticality of the order here sought. To adopt the words of Hill J, reinstatement "would be far from futile or impossible of compliance; it would be capable of having a real and effective operation."

Reinstatement, to my mind, is about reconnecting the employment relationship between an employer and employee. However, it is not necessarily about restoring the employment relationship on exactly the same footing as it was at the point of dismissal. If this was not so, it seems to me that the power to order reinstatement "on such terms and conditions as the Commission determines" s89(8) would have no work to do.

108 I hasten to add that these comments were made in the context of a reinstatement application pursuant to s130 of the Act. However, in my view the same principles are applicable to the reinstatement provisions in Pt 7 ch 2 of the Act.

109 Accordingly, I propose to order that the parties confer as to the nature and timing of the reinstatement of the applicant. Liberty to apply is available should there be no agreement.

110 Having regard to my earlier comments on the unfairness of the applicant's dismissal, I consider this to be an appropriate matter for orders to be made pursuant to s94(4) and 97(1) of the Act. I intend to so order.

ORDERS

111 The Industrial Relations Commission of New South Wales orders that:

1. Pursuant to s94 of the Industrial Relations Act 1996 the respondent, Cobar Mining Services Pty Ltd, shall reinstate the applicant, Mr Scott Elwell, as soon as practicable.

2. The parties confer as to the kind of employment to be offered to the applicant and the timing of his reinstatement.

3. In the event of a failure to agree in respect to the above orders, liberty to apply is available to both parties.

4. Pursuant to s94(4) of the Industrial Relations Act 1996, the respondent Cobar Mining Services Pty Ltd, shall pay to the applicant, Mr Scott Elwell an amount not exceeding the remuneration he would, but for being dismissed, have received from 2 July 2003 to his reinstatement. Such an amount shall be less any remuneration earned by the applicant during this time.

5. The amount in Order 4 shall be paid within 28 days.

6. Pursuant to s97(1) of the Industrial Relations Act 1996 the period of employment of Mr Elwell is taken not to have been broken by his dismissal on 7 April 2003.

7. Proceedings in dispute notification IRC3634/03 are dismissed.

8. Proceedings in matter IRC3633/03 are concluded by this decision.

Peter J Sams, AM

Deputy President

LAST UPDATED: 05/03/2004