Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v Workcover Authority of New South Wales [2006] NSWIRComm 108 (26 June 2006)

Last Updated: 26 June 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm 108

FILE NUMBER(S): IRC 1499

HEARING DATE(S): 30/08/2005; 15/11/2005

DECISION DATE: 31/03/2006

PARTIES:

APPELLANT:

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Peter Riley

RESPONDENT:

WorkCover Authority of New South Wales

JUDGMENT OF: Wright J President Boland J Connor C

LEGAL REPRESENTATIVES

APPELLANT:

Mr A Hatcher, of Counsel

Solicitor: Mr A Howell

Jones Staff & Co

RESPONDENT:

Ms K Nomchong, of Counsel

Solicitor: Mr G Phillips

Carroll & O'Dea

CASES CITED: Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385

Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325

Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264

Cansino v South Western Sydney Area Health Service (1999) 130 IR 1

Commonwealth Steel Company Limited v Ward (unreported, Matter No IRC 3144 of 1993, 16 December 1994)

Darren James Anderson v Northern Co-operative Meat Company Pty Ltd (NCMC - Butchering Pty Ltd) (2004) 137 IR 404

Effem Foods Pty Limited t/as Uncle Ben's of Australia v Urban (1998) 81 IR 341

House v The King (1936) 55 CLR 499

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

King v State Bank of New South Wales (No 2) (2002) 126 IR 407

Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380

Little v Commissioner of Police (No 2) (2002) 112 IR 212

Mitchforce v Starkey (2002) 117 IR 122

Newcastle City Council v Bevan (2001) 120 IR 121

Perrott v Xcellenet Australia Limited (1998) 84 IR 255

Weisser v Spur Group Pty Ltd (2003) 121 IR 89

Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273

LEGISLATION CITED: Industrial Relations Act 1991

Industrial Relations Act 1996

Public Sector Employment and Management Act 2002

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH

CORAM: Wright J, President

Boland J

Connor C

Friday, 31 March 2006

Matter No IRC 1499 of 2005

PETER RILEY v WORKCOVER AUTHORITY OF NEW SOUTH WALES

Application by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Peter Riley for leave to appeal and appeal against a decision and orders of Commissioner D Ritchie given on 3 March 2005 in Matter Nos. IRC 5317 and 6979 of 2003

DECISION OF THE COMMISSION

[2006] NSWIRComm 108

Introduction

1 Between 1985 and 2003 Peter Riley was employed by the WorkCover Authority of New South Wales under the Crown Employees (WorkCover Authority - Inspectors) Award. Mr Riley was medically retired on 4 September 2003 on the grounds that he was unable to fulfil the inherent requirements of the job of Regional Inspector because of travel restrictions placed on him arising from a medical condition.

2 Mr Riley's union, the Public Service Association and Professional Officers' Association Amalgamated Union ("PSA"), filed two applications seeking relief on his behalf. The first was under s 84 of the Industrial Relations Act 1996 claiming the dismissal was harsh, unjust or unreasonable and seeking reinstatement to his former position, re-employment to another position or monetary compensation. The second was under s 92 of the Act, which provides that 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.

3 The applications came before Ritchie C in September and November 2004. In March 2005 the Commissioner gave his decision dismissing the applications. The PSA, on behalf of Mr Riley, has sought leave to appeal against the Commissioner's decision and orders and, if leave is granted, to appeal the decision and orders.

Background

4 Mr Riley commenced employment with WorkCover as an Inspector based at Newcastle. He was transferred to Rosebery in 1987 and became centre manager for civil construction in 1995. The appellant began to experience stress and anxiety in the performance of his duties, in particular, having to view the bodies of deceased persons when attending the scene of industrial accidents. Mr Riley said in his evidence before Ritchie C that he started to experience memory loss, had trouble with sleeping and drank heavily. At the time, the appellant did not seek medical advice but attempted to remedy the situation by removing himself from the work environment where he considered he was at risk. He consequently took up the position of Inspector at the Tuggerah office of WorkCover in 1997 - a demotion. As he already resided in Gosford, he reduced his commuting time by 15-20 hours per week. This allowed the applicant to engage in an exercise regime undertaken as a stress release measure.

5 In 1999, however, it was announced that the Tuggerah office was to be closed and the responsibility for that area administered from Sydney. This meant that Mr Riley could be transferred back to the Sydney office. The prospect of a transfer to Sydney together with distress caused by recently attending a fatality site caused a recurrence of Mr Riley's stress condition. He made a workers' compensation claim in July 1999, which was accepted. Mr Riley resumed work approximately one month later, firstly on a part-time basis and then, four months later, on a full-time basis.

6 Between July 1999 and January 2001 Dr Barry Earp, Mr Riley's general practitioner, provided medical certificates for Mr Riley that relevantly stated he was fit for duties with a restriction that he "not be required to work in Sydney on a full time basis". On 16 February 2001 this restriction was changed to one whereby Mr Riley was to work in Sydney no more than 16 hours per week, travelling no more than two days per week.

7 Mr Riley continued to work as a Regional Inspector for WorkCover from Tuggerah and later, when the Tuggerah office closed, from a new office in Gosford up to 14 February 2002 when he was informed that he was required to relocate to the Parramatta office. Mr Riley opposed the relocation on the basis that it was contrary to the medical restrictions covering his employment. The appellant attended upon Dr Earp who provided a letter in which he said he considered a transfer to Sydney "an extremely unwise move". WorkCover, nevertheless, confirmed its intention to relocate Mr Riley to Parramatta. Several meetings that took place between February and December 2002 failed to resolve the matter.

8 The requirement for Mr Riley to relocate to the Parramatta office derived from a policy developed by WorkCover in or about 2001 of rotating members of its inspectorate within their industry teams and also between teams. Such an arrangement is authorised by s 87 of the Public Sector Employment and Management Act 2002. WorkCover inspectors are statutory appointments. It was felt that rotation allowed inspectors to develop skills in different industries, work with different people, and improve and increase skills through diversity in experience. It would also enable the more experienced inspectors to provide assistance to more junior members across teams. WorkCover also felt that leaving inspectors in the one position performing the same duties and dealing with the same individuals for any length of time, might risk the prospect of inspectors becoming "captive" to local stakeholders.

9 On 22 April 2002 the appellant's treating psychologist, D M Bartholomeusz, directed a letter to WorkCover. The letter stated that in the psychologist's opinion it would be counter-productive to require Mr Riley to relocate to Parramatta as he would be unable to continue his exercise program. The psychologist stated that he did not believe that the appellant's concerns were frivolous or deliberately obstructive.

10 On 22 July 2002 a meeting was held where the appellant was advised that as a consequence of the concerns expressed in the medical reports concerning travel, it had been decided to direct Mr Riley to attend HealthQuest. In the meantime, further meetings occurred in September, November and December 2002, including in relation to a request by the appellant to be considered for a transfer to a either Lismore or Grafton. These meetings proved to be unsuccessful in accommodating Mr Riley.

11 As Ritchie C noted in his decision at [31]:

On 21 January 2003 the applicant attended the Health Quest appointment. On 29 January the applicant received a copy of the Health Quest report signed by Dr. A. Casolin NSW Government Medical Officer. The recommendation found in that report expressed the view that:

Whilst Mr. Riley is fit to work as a Regional Inspector, he would be at increased risk of developing recurrent depression should he be required to travel an additional 4 hours on 3 or more days per week. Please advise whether this can be accommodated.

12 Ritchie C also noted at [33]-[35] of his decision:

33 On 14 March 2003 the applicant proceeded on annual leave and attended the Australian Masters Surf Life Saving competition in Queensland. During his period on annual leave correspondence was received at his home address (on 22 March) consisting of a copy of a letter (dated 13 March 2003) that the respondent had sent to Health Quest which responded to a request from Health Quest for further information. The applicant had the opportunity to respond directly with the Government Medical Officer within 14 Days of the date of the letter.

34 On 26 March 2003 the applicant emailed Dr. Casolin of Health Quest indicating that he was on leave until 7 April 2003 and that he would formally respond upon his return. On 27 March 2003 the applicant received a further report from Dr. Casolin which was dated 24 March 2003. This report was made prior to the 14 days allowable for the applicant to respond. This report stated in part:

HealthQuest has now been advised that as an Inspector Mr. Riley is required to travel, and his restrictions do not enable him to do this. Mr. Riley is currently working in Gosford, however the Authority has advised that he is not carrying out the requirements of his position as a Regional Inspector, which require him to travel and be time flexible. HealthQuest has been informed that there is no position available.

Given this information, it is apparent that Mr. Riley is unfit for the full inherent job requirements of an Inspector or Regional Inspector as result of his travel restriction. A certificate to this effect is attached.

35 On 4 April 2003 the applicant received a letter from the respondent. The letter stated that as a consequence of a medical report that had been received the General Manager, WorkCover had decided to terminate his services. If the applicant did not wish to appeal this decision then his termination date would be 2 April 2003. The medical report from HealthQuest in part stated:

...that you are suffering from a health condition that will in all likelihood prove permanent and, as a result you are unable to perform the inherent requirements and job demands of a Regional Inspector and it is likely this will continue for the foreseeable future.

13 Mr Riley appealed the HealthQuest assessment to the Medical Appeals Panel, which on 19 August 2003 rejected the appeal. Mr Riley was medically retired on 4 September 2003. His applications for two vacant positions in Lismore - as district co-ordinator with WorkCover and as the safety co-ordinator with the Department of Commerce - had been unsuccessful.

The Medical Evidence

14 There was a good deal of evidence relating to Mr Riley's medical condition. It may be summarised by referring to the various medical practitioners who treated the appellant.

Dr Earp

15 As we earlier noted, Dr Earp was Mr Riley's general practitioner. Dr Earp provided medical certificates for Mr Riley between July 1999 and January 2001. As we mentioned previously, in February 2001 Dr Earp certified that Mr Riley was to work no more that 16 hours per week in Sydney, travelling no more than two days per week. In August 2003 Dr Earp certified in a medical report to the SAS Trustee Corporation that:

Mr Riley is suffering from a health condition that will, in all likelihood, prove permanent. As a result, this employee is unable to perform the inherent requirements and job demands of the position of regional inspector for the WorkCover Authority and it is likely that this will continue for the foreseeable future.

16 On 10 November 2003, however, Dr Earp signed a medical report stating that Mr Riley was fit and able to perform all of the inherent duties of a regional inspector including its travel requirements providing there was no more than two days per week of commuting to Sydney. In cross-examination in the proceedings before Ritchie C, Dr Earp admitted that the report had actually been written by Mr Riley and had merely been transcribed and signed by Dr Earp. Dr Earp admitted that it was Mr Riley who advised him of how many days he wanted to work in Sydney because of his medical restriction rather than making an independent assessment in that respect.

Dr Clifford-Smith

17 Dr Clifford-Smith was a doctor who practised in the same medical centre as Dr Earp. It appears that Mr Riley only consulted with Dr Clifford-Smith on one occasion. On the basis of that consultation and by reason of Dr Earp's request for him to do so, Dr Clifford-Smith completed a certificate for the SAS Trustee Corporation, identical to the one completed by Dr Earp, that Mr Riley was totally incapacitated for work as an inspector and for any other position for which he would be reasonably qualified by reason of his education, training or experience.

Dr Bartholomeusz

18 We mentioned earlier that Dr Bartholomeusz was Mr Riley's treating psychologist and that he sent a letter to WorkCover in April 2002 stating that in his opinion it would be counter-productive to require Mr Riley to relocate to Parramatta as he would be unable to continue his exercise program.

Dr Oldtree-Clarke

19 Dr Oldtree-Clarke was a consulting forensic psychiatrist. The solicitors for the appellant sought a medico-legal report from him for the purposes of the proceedings. Dr Oldtree-Clarke provided an opinion that Mr Riley was suffering from Chronic Post Traumatic Stress Disorder with ensuing chronic depression dysthymia.

20 As the respondent submitted, in contrast to Drs Earp and Bartholomeusz, Dr Oldtree-Clarke identified that it was actually being in Sydney that rendered it as an inappropriate place for Mr Riley to work. It was not the additional travelling time to commute to Sydney nor the interference with Mr Riley’s exercise regime on Terrigal Beach, but the fact that Sydney (because of the people located there) had become “a war zone”.

21 Dr Oldtree-Clarke stated that Mr Riley could not return to work fulltime in Sydney and that he should be rehabilitated carefully by incremental stages. Even part-time work in Sydney was considered to be detrimental to Mr Riley.

Dr Moorthy

22 Dr Moorthy was a psychiatrist engaged by GIO. Mr Riley was sent to see Dr Moorthy in September 1999. Dr Moorthy referred to Mr Riley's feelings of hopelessness, suicidal urges and homicidal thoughts about killing members of WorkCover management whom he believed were persecuting him. Dr Moorthy recommended that Mr Riley remain away from face to face contact with people he had worked with in the past or, if that could not be accommodated, medical retirement. Dr Moorthy did not identify travel as the significant factor in precluding Mr Riley from working in Sydney.

Dr Lee

23 Dr Lee was a consultant psychiatrist who prepared two reports for the respondent’s workers’ compensation insurer in August and October 2000. Dr Lee noted Mr Riley’s self-identification as a man trained and capable of killing and his thoughts about killing his superiors at WorkCover. Dr Lee diagnosed Post Traumatic Stress Disorder and recommended that Mr Riley not return to Sydney.

24 As the respondent submitted, no part of Dr Lee’s diagnosis or recommendation was based on travelling or commuting requirements to Sydney but was based on Mr Riley’s inability to deal with stressful situations.

Dr Parmegiani

25 Dr Parmegiani was a general and forensic psychiatrist who prepared a number of reports for the respondent’s workers’ compensation insurer in April 2001. Dr Parmegiani was of the opinion that due to a predisposing vulnerability, Mr Riley had developed Post Traumatic Stress Disorder. He assessed the contributing factors as an acrimonious investigation and personal threats allegedly made to Mr Riley during an earlier investigation. Further, he relied upon Mr Riley’s then harmful levels of alcohol consumption. Dr Parmegiani also referred to Mr Riley’s prior homicidal fantasies involving revenge towards his managers.

26 At the time of writing his report Dr Parmegiani recommended that Mr Riley’s ability to cope with increased work loads and stress was probably decreased and recommended that he not be transferred back to Sydney.

27 As the respondent again submitted, Dr Parmegiani’s opinion did not refer to travel time or an exercise regime as a reason for the recommendation.

Dr Casolin

28 Dr. Casolin of HealthQuest accepted that Mr Riley was suffering from major depression and previous alcohol abuse and that he would be at increased risk of developing recurrent depression should he be required to travel an additional four hours on three or more days per week.

Dr Lewin

29 Dr Lewin was a consultant forensic psychiatrist who prepared a report at the request of the respondent’s workers’ compensation insurer (GIO) on 31 October 2003, after Mr Riley had been medically retired.

30 Dr Lewin’s assessment was that Mr Riley was fully fit for work and that his previous psychiatric condition had resolved.

31 Dr Lewin also asserted that the question of whether Mr Riley travelled to Sydney was a question of lifestyle and a personal preference and it was not a matter for medical opinion.

Decision at first instance

32 In considering the two applications (under s 84 and s 92 of the Act), the Commissioner first considered whether he was able to hear both simultaneously, finding that he was able to do so.

33 In relation to the application under s 84, the Commissioner commenced his reasoning by noting that pursuant to the principle in Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273, the appellant bore the onus of proof in establishing that the dismissal was harsh, unjust or unreasonable.

34 In finding that the relocation of the Regional Inspector's position from Gosford to Parramatta was appropriate, Ritchie C noted that the decision to relocate was made in February 2002, with the appellant not having worked since July 1999 either on a full time basis or without a travel restriction. The Commissioner also found at [153]:

When there are 45 Inspectors in the Construction Team and 43 are located in the Sydney/Parramatta offices, and there are 2 in the Gosford office I understand and accept that the requirement of the respondent to have a Regional Inspector located in their Parramatta office was both logical and understandable. I accept the evidence from the respondent's witnesses that it was necessary for the Regional Inspector to be physically located at Parramatta.

35 Importantly, the Commissioner further stated at [154]:

154 As stated before at the time of the request the applicant was working under a medical restriction. He objected to the transfer on that basis. Mr. Hatcher stated that there was unfairness in being required to transfer contrary to the medical restrictions. I would accept such a claim if the applicant was terminated at that point without any opportunity to respond and without the respondent investigating any alternative options. But he was not terminated at that point nor did he transfer. Over the next ten months he and the respondent met on four separate occasions in an endeavour to find a solution satisfactory to both parties. The respondent's witnesses stated that various options were offered to the applicant but were rejected. The applicant wished to carry out his fitness regime at Terrigal Beach prior to work. It was accepted by the applicant that his training programme could have been carried out in the parks and pools at Parramatta but believed that would make for too long a day. It was also accepted by Dr. Earp that his training programme need not be necessarily carried out on Terrigal Beach.

36 The Commissioner also found that Mr Riley:

[H]ad ample opportunity to state his case at the various meetings held between himself and the respondent and bring to the respondent's attention whatever evidence he had, to seek to change the mind of the respondent.

37 On the question of whether the respondent manipulated the HealthQuest process, Ritchie C found as follows:

159 Mr. Hatcher stated that the respondent had manipulated the HealthQuest process. The applicant had a HealthQuest examination on 21 January 2003. At the time he provided HealthQuest with medical reports, emails and reports. He also stated that "I should not be relocated to Sydney as it may exacerbate my pre-existing condition. The most likely outcome being of no benefit to WorkCover & detrimental to my health." The applicant received a copy of the HealthQuest report dated 29 January 2003 on around that date. The report was expressed under the headings of Background, Assessment, Conclusion and Recommendation. Under the heading of Conclusion Dr. Casolin stated that the applicant suffers from major depression and raises the question of whether he is fit to work at Parramatta? He noted the added travel of 4 hours per day, the psychiatrist view of the ramifications of this and the significant risk of the recurrence of his depression. Under the final heading Recommendation he stated:

Whilst Mr. Riley is fit to work as a regional Inspector, he would be at increased risk of developing recurrent depression should he be required to travel an additional 4 hours on 3 or more days per week. Please advise whether or not this can be accommodated.

160 On 13 March 2003 the respondent wrote to the applicant and advised that "because we are unable to accommodate your current restrictions you will be referred back to the GMO for re-assessment." The same correspondence advised that the applicant may within 14 days respond in writing to the GMO. Included in the report to the GMO was the applicant's position description.

161 It is accepted as fact that prior to the applicant having the opportunity to respond to Dr. Casolin by 27 March 2003, Dr. Casolin wrote a report dated 24 March 2003. In part that report stated:

HealthQuest has now been advised that as an inspector Mr. Riley is required to travel, and his restrictions do not enable him to do this. Mr. Riley is currently working in Gosford, however the Authority has advised that he is not carrying out the requirements of his position as a Regional Inspector which require him to travel and be time flexible. HealthQuest has been informed that there is no other position available.

Given this information, it is apparent that Mr. Riley is unfit for the inherent job requirements of an inspector or a Regional Inspector as result of his travel restriction. A certificate to this effect is attached.

162 The alleged manipulation by the respondent was that whilst the applicant had a medical restriction on travel, it was not of a general nature but of a specific nature, that is going to Sydney more than two days a week outside of working hours. The applicant had no travel restrictions beyond the Sydney aspect. The Sydney restriction allowed the applicant to carry out a physical training programme at Terrigal prior to work which was part of his stress relief programme.

163 Mr. Watson from the respondent denied there had been any manipulation and believed that the respondent had followed procedure. The respondent had no control over the actions of HealthQuest.

164 The applicant was asked in cross examination the following.

Q. What documents do you say you were given to put in if you had been given the opportunity to do so. Were you going to put in more medical evidence?

A. I wanted to look at all avenues and see what resources were available.

Q. So you did not have any idea about what you would have put in because you had not turned your mind to it by then?

A. I actually had considered the information from WorkCover which I thought was relevant.

165 Whilst it was unfortunate that the applicant received Dr. Casolin's report prior to having the opportunity to state his views, I have doubt as to what further information he would have provided that would have altered the final outcome. I have noted the comments expressed in Antonakopoulos v State Bank 91 IR 385 which raised the issue of an unfair procedure during the process. Taking into consideration the long history that culminated in the applicant's medical retirement I do not believe that particular lack of opportunity experienced by the applicant was fatal to the process.

38 The Commissioner also noted:

166 I am not convinced on the evidence before me, that the respondent sought to and or did manipulate HealthQuest. Both provided documentation to HealthQuest, and HealthQuest in the 29 January 2003 report expressed in my view, in clear terms what both parties' positions were. The report of 29 January 2003 stated that:

HealthQuest was informed that alternative Regional Inspectorate positions have been considered, but these positions require similar or more travel. Mr. Riley wrote a submission to HealthQuest, and in this he indicated that he is able to travel within a normal working day, with the occasional extended day.

167 The applicant took the opportunity to appeal the HealthQuest determination but the appeal was not successful as the appeal was not based on medical grounds.

39 The Commissioner next considered the respondent's claim that the appellant lacked the integrity and honesty necessary to carry out the position of Inspector or Regional Inspector, the appellant's actions with respect to applications for superannuation benefits and personal firearms licences being raised as examples. The Commissioner found that on the medical evidence, the appellant had not knowingly falsified the two applications: [170]. Ritchie C also stated at [171]:

171 I should also note that during his long period of employment with the respondent there was no history of the applicant's integrity or honesty ever being raised or questioned. I therefore make no adverse finding concerning the integrity or honesty of the applicant.

40 The Commissioner summarised his findings in relation to the s 84 application thus:

172 In summary the respondent had a requirement for the applicant's position to be rotated to Parramatta. I have found that such a requirement was logical based on the needs of the respondent. The applicant had for a considerable period of time been working in accordance with a medical restriction. The applicant had been subjected to a return to work programme. The applicant due to medical restrictions, based on travel did not accept the transfer. I do not believe at that point there was an obligation for the respondent to create an alternative position or displace another employee from his or her position in order to make a position available to the applicant. Alternative employment was considered but not available. The applicant was medically examined and was medically retired.

173 Taking into consideration all the evidence that came before this Commission I have not been persuaded that the termination of Peter Riley was harsh, unreasonable or unjust. It is therefore my finding that the Commission should not intervene in IRC Matter no. 2003/5317.

41 The Commissioner then considered the application under Pt 7 of Ch 2 of the Act and commenced by setting out a medical certificate from the appellant's treating general physician, Dr Barry Earp, dated 10 November 2003, which was attached to the application: [174].

42 As the Commissioner noted at [175]:

[a]lso attached was a letter from the applicant dated 18 November 2003 applying for his previous position of Regional Inspector based at Gosford or alternatively to another suitable position of a kind eg. (but not limited to) District Coordinator Lismore, subject to the recommendations contained in the attached medical certificate are implemented. Mr. Hatcher for the applicant also stated that a position as an Inspector based at Gosford would be acceptable with back pay.

43 After noting the requirement of s 92(3) of the Act that the employee must provide a relevant certificate, Ritchie C considered the respective submissions of the parties as to whether he could rely on the 10 November 2003 certificate, given that Dr Earp's earlier medical opinion of August 2003 was markedly different: [176]-[180].

44 The Commissioner held:

181 Section 92 of the Act covers the Application To Employer For Reinstatement Of Dismissed Injured Employee. It is the section that expresses the process for commencement of such an application. It is the medical certificate that the applicant provides that forms the foundation of his application. I note in Cansino v South Western Sydney Health 130 IR 1 at 14 it states:

(19) Section 94(3) creates two further alternative bases for the exercise of discretion, but in either case the Commission is required to find that the employee is fit for the alternative employment which is the subject of the order. Again, fitness would appropriately be determined by reference to relevant medical evidence.

182 In my view the relevant medical evidence is not only the medical evidence that commenced the proceedings but any other medical evidence that becomes available. Applicants may file for reinstatement up to 2 years after termination. In 2 years a person's health can change.

183 It is my finding that I am not bound by the medical certificate that commenced these proceedings. I do believe that the legislation allows the Commission to consider any other relevant medical reports.

45 The Commissioner continued:

184 In this application the applicant had sought that he be reinstated to his former position of Regional Inspector based at Gosford. The medical certificate, dated 10 November 2003 attached to this application did not allow the applicant to be located in Sydney on a full time basis. The medical report of Dr. Oldtree Clark, dated March 1 2004 supported that opinion. The medical report of Dr. Lewin dated 31 October 2003 stated that the applicant was fit without restriction. Medical reports from Drs. Parmegiani in 2001,Moorthy in 1999 and Lee in 2000 all recommended that the applicant not return to Sydney.

185 I have already found in matter no. 5317 of 2003 that the position of Regional Inspector was rotated to Parramatta for good logical reason and I therefore do not believe it appropriate to now order the respondent to reverse this action to satisfy the applicant. The position of Regional Inspector is now located at Parramatta.

186 The onus is on the applicant to satisfy the Commission that he is fit for employment of the kind for which the employee applied. I have not been satisfied and therefore I decline under s. 94(1) to make an order reinstating the applicant to the position of Regional Inspector based at Gosford.

46 Ritchie C summarised the medical evidence as follows:

188 The medical certificate dated 10 November 2003 (Dr Earp) centred on the applicant's specific fitness with respect to the position of Regional Inspector and was silent with respect to fitness for any other position. The medical certificate dated 31 October 2003 (Dr. Lewin) stated the applicant was fully fit and had fully recovered. The medical certificate of March 1 2004 (Dr. Oldtree Clark) again only centred on the role of a Regional Inspector, stated that the applicant could carry out the full duties of a Regional Inspector without restrictions but only in his home region. Travel restrictions would apply if the applicant had to travel more than three hours per day in his own time.

47 After noting the requirement of s 92(3) of the Act, with the consequential onus on the applicant, the Commissioner considered the difference between the HealthQuest report of 24 March 2003 and the 31 October 2003 report of Dr Lewin. However, rather than seeking to reconcile the two, the Commissioner noted at [189]:

If I accept the medical evidence of Dr. Lewin that the applicant is fit to carry out either of the two positions [District Coordinator Lismore or Inspector based in Gosford] I must then consider whether the respondent has that kind of employment available. As noted previously the applicant and respondent met in February 2004 and investigated the situation of alternative positions without success. Evidence from the respondent showed that there were two Inspectors' positions based at Gosford. These two positions were part of the metropolitan group and therefore were subject to rotation with Sydney/Parramatta. The applicant would therefore be subject to rotation. There were no vacancies in these positions at the time of the hearing. With respect to the position of District Coordinator, Lismore the applicant had previously applied for this position but had been unsuccessful.

48 The Commissioner noted the relevant principle from Cansino v South Western Sydney Health (1999) 130 IR 1 at 13:

(18) The provisions of s. 94(3) raises questions as to who bears the onus of establishing whether the employer has employment of the kind so specified in s. 94(2) available. Given the nature of the orders which may be made under s. 94(2) and the resultant burden of any order under s. 94(3) being on the employer, it would seem logical that such onus should fall on the employer.

49 The Commissioner held:

191 Witnesses for the respondent stated that prior to medical retirement that alternative positions were investigated but no employment was available with duties consistent with those to which the applicant was restricted. Mr. Watson for the respondent stated that he was unaware of any vacant Inspector's position at Gosford. As I have noted previously there were only two Inspector positions at Gosford. It is my finding that the respondent had discharged their onus with respect to the availability of an alternative position. I also do not believe that the respondent is obliged to create a new position to accommodate the applicant where a suitable position in accord with any medical restrictions does not exist.

192 As a consequence I dismiss the application made on behalf of the applicant. Matter no. 6979 of 2003 is therefore concluded.

Leave to appeal

50 The appellant submitted that the questions raised by the appeal included:

(a) whether a denial of procedural fairness prior to dismissal becomes immaterial upon the basis of a finding that anything the employee would have said had the employee been given a hearing would not have made any difference to the decision;

(b) whether it is fair to dismiss an employee for being medically incapable of complying with a directed transfer, where that medical incapacity was the result of a work injury which was known to and accepted by the employer prior to the transfer direction;

(c) whether it is fair to dismiss an employee because of a medical restriction without the employer considering whether there was alternative employment available to the employee consistent with the employee's medical restriction;

(d) whether an application under Part 7 of Chapter 2 can be dismissed without the Commission considering whether the employee could be reinstated to the employee's previous position subject to a permanent medical restriction;

(e) whether the references to "available" employment in s 94(3) are to be read as being confined to existing positions which are vacant;

(f) whether an application under Part 7 of Chapter 2 can be dismissed on the basis of a belief that the employer is not obliged to create a new position to accommodate the applicant where a suitable position in accord with any medical restrictions does not exist.

51 The appellant further submitted that the appeal raised important questions as to:

(a) the circumstances in which a dismissal in the ground of medical incapacity caused by a workplace injury may be found to he harsh, unreasonable or unjust;

(b) the construction of s 94(2),(3) of the Act and the matters which are required to be considered under those provisions.

52 It was also submitted that the matters raised by the appeal generally were of such importance that it was in the public interest for leave to be granted.

53 In relation to the application under Pt 6 of Ch 2 the appellant listed several errors, both of fact and law which it submitted, when taken collectively, resulted in the Commissioner erring in failing to find that that the dismissal of Mr Riley was harsh, unreasonable or unjust.

54 In relation to the application under Pt 7, the principal ground of appeal was that the Commissioner erred in failing to exercise his discretion in favour of ordering the reinstatement of Mr Riley pursuant to s 94 of the Act. It was further submitted that the exercise of the Commissioner's discretion miscarried in that he took into account irrelevant considerations, failed to take into account relevant considerations, mistook the facts, acted upon a wrong principle and failed to properly consider and apply the relevant provisions of the Act.

55 The respondent opposed the granting of leave to appeal, submitting that the present appeal did not involve substantial questions of law or principle or involve something of importance for the jurisprudence of the Commission so as to attract leave to appeal pursuant to Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380.

56 It was also submitted that the factual findings made by Ritchie C were open to him on the evidence available and did not require appellate intervention in accordance with the rule in House v The King (1936) 55 CLR 499 at 504.

57 The respondent further submitted that there was no manifest error as required by King v The State Bank of NSW (No 2) (2002) 126 IR 407.

58 The respondent disagreed with the appellant's submission that the Commissioner erred in failing to apply the principle from Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385, namely, that the failure to provide an employee an opportunity to provide an explanation to an allegation made against him/her where that explanation may alter the decision of the employer in relation to the dismissal, will render the dismissal unfair.

59 The respondent submitted that the evidence before the Commissioner revealed that there had been a number of meetings and correspondence between the parties in relation to the proposed rotation of Mr Riley's position from Gosford to the Parramatta office. The evidence further revealed that Mr Riley had provided HealthQuest with a number of medical reports. Consequently, the Commissioner was entitled to find as he did that " the applicant had ample opportunity to state his case at the various meetings held between himself and the respondent and bring to the respondent's attention whatever evidence he had, to seek to change the mind of the respondent."

60 It was further submitted that in relation to the fact that the respondent did not seek further submissions from Mr Riley following the HealthQuest examination, it was open to the Commissioner to find at [165] that:

I have noted the comments expressed in Antonakopoulos v State Bank 91 IR 385 which raised the issue of an unfair procedure during the process. Taking into consideration the long history that culminated in the applicant's medical retirement I do not believe that particular lack of opportunity experienced by the applicant was fatal to the process.

61 The respondent also took issue with the appellant's submission that, pursuant to Cansino, the Commissioner erred in approaching the question of whether a position was available within the meaning of s 94(3) of the Act as being restricted to whether there was a vacant position.

62 In the respondent's submission, the Commissioner identified that the position for which Mr Riley had applied was Regional Inspector at Gosford. The Commissioner held that the requirement to relocate was part of that position and that he was not minded to make orders where the requirement to rotate was reversed. Having taken into account the medical evidence earlier, the Commissioner was entitled to find that Mr Riley was not fit for that position, a finding within the principles of Cansino.

63 It was also submitted that the Commissioner's reasoning disclosed no error in considering whether an order for reinstatement in another position was available.

64 The appellant seeks leave to appeal and appeals pursuant to s 187 of the Act. In such appeals, the nature of the appeal is governed by s 191 of the Act and leave to appeal is required by s 188.

65 The principles applicable to the granting of leave have been settled by the Commission in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 (at 381 - 382), and the Full Bench authorities which have followed and applied that decision. They may be summarised as follows:

(a) Leave will not lightly or automatically be granted: Perrott v Xcellenet Australia Limited (1998) 84 IR 255 at 265. The legislative intention is to restrict access to appeals to "appropriate cases meeting the public interest test stated in s 188(2)";

(b) Leave would ordinarily be refused where an appeal raises arguments which were not squarely raised at first instance, that is, where the appellant has brought, in substance, a new or materially different case on appeal: Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264;

(c) An appeal should raise substantial and important considerations, and any public interest considerations need to be evaluated "in the light of the nature of the issues raised in the appeal, including whether the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application". See also Mitchforce v Starkey (2002) 117 IR 122 at [23]; King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]; and Weisser v Spur Group Pty Ltd (2003) 121 IR 89 at [14].

66 It is also to be noted that in Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325, the Court observed at [5]:

We were reminded of, and accept as supportive (but not determinative) of leave to appeal, the general industrial principle, as repeated by Dey J in Re Crown Employees (Teachers, Locality Allowance, &c) Award [1981] AR (NSW) 1017 at p 1049, "that the interests of employees are an important aspect of public interest".

67 We consider the appeal raises substantial issues of principle and law, especially in relation to the operation of Pt 7 of Ch 2 of the Act. Accordingly, we propose to grant leave to appeal.

Consideration

68 Part 6 of Ch 2 of the Act is the source of the Commission's power to deal with unfair dismissals. The Commission may provide relief by way of reinstatement, re-employment or compensation to certain classes of employees who have been dismissed from their employment subject to a finding that the dismissal was harsh, unjust or unreasonable.

69 Part 7 of Ch 2 of the Act is the source of the Commission's power to reinstate an injured employee who has been dismissed because he or she is not fit for employment as a result of the injury received and the injury arose (either wholly or partly) out of or in the course of employment with the employer. Reinstatement includes re-employment. There is no requirement under Pt 7 to make a finding that the dismissal of the injured employee was harsh, unjust or unreasonable.

70 Section 94(2) of the Act, which is in Pt 7, provides that 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. Section 94(3) further provides:

(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).

71 In these appeal proceedings there are two fundamental issues to be determined. Firstly, whether Ritchie C erred in finding that the termination of Mr Riley's employment was not harsh, unreasonable or unjust and, consequently, no relief was available under Pt 6 of Ch 2 of the Act. Secondly, whether the Commissioner erred in declining to make an order under Pt 7 of Ch 2.

Whether Commissioner erred in determining dismissal was not harsh, unreasonable or unjust

72 One matter that presented us with some difficulty was the medical evidence. There appeared to be three schools of opinion amongst the examining medical practitioners as to the nature of Mr Riley's disability: The first was that having to travel to Parramatta each day as well as put in a full day's work, thereby interfering with his exercise regime, would run the risk of Mr Riley's anxiety/depressive condition returning. The alternative opinion was that having to work in Parramatta with people whom Mr Riley believed had persecuted him in the past might trigger a return to his anxiety/depressive condition. Dr Lewin, however, was apparently of the opinion that Mr Riley was fully fit for work and that his previous psychiatric condition had resolved (Dr Lewin did not give evidence in the proceedings. Dr Lewin’s report on Mr Riley's condition was annexed to a statement of Mr Riley. The report was never tendered by the appellant as expert medical opinion, nor was it relied upon by the appellant as such. The respondent filed Dr Lewin’s report as a part of its evidentiary case, but upon Dr Lewin being required for cross-examination, the respondent declined to call him).

73 The original restriction regarding work and travel was imposed by Dr Earp. We accept, however, that Dr Earp's evidence was largely discredited when he admitted in cross-examination that the medical certificate on which Mr Riley relied had actually been written out by Mr Riley and had merely been transcribed and signed by Dr Earp. Dr Earp admitted that it was Mr Riley who advised him of how many days he wanted to work in Sydney for his medical restriction. Whilst Dr Earp insisted that the substance of the medical certificate represented his independent opinion of Mr Riley’s medical state, we note that Dr Earp also admitted that another medical certificate issued by him for the SAS Trustee Corporation, which enabled Mr Riley to gain a tax advantage in relation to the payment of his superannuation, was false. Further, that Dr Earp admitted he asked a fellow medical practitioner at his surgery to fill out a similar certificate.

74 In these circumstances, Dr Earp's evidence regarding Mr Riley's medical condition is unreliable. So is the evidence relating to Mr Riley's consultation with Dr Earp's fellow practitioner, Dr Clifford-Smith, and to the issuing of the certificate by that medical practitioner for the SAS Trustee Corporation certifying in identical terms to the certificate issued by Dr Earp that Mr Riley was totally incapacitated for work as a WorkCover inspector or for any other position for which he would be reasonably qualified by reason of his education, training or experience.

75 The position regarding the medical evidence comes down to this:

(1) The medical opinions of Dr Earp and Dr Clifford-Smith may be put aside because the evidence relating to them strongly suggests they are unreliable;

(2) The opinion of Dr Bartholomeusz that the proposed relocation of Mr Riley to Parramatta would be counter productive as he would be unable to continue his exercise program, supports to some extent the opinion of Dr Casolin;

(3) The opinions of Drs Old-Tree Clarke, Moorthy, Lee and Parmegiani seem to suggest that being required to work in Sydney/Parramatta would reduce Mr Riley's capacity to cope with stressful situations and that he should not be transferred. None of these practitioners referred to any stress arising from a combination of work and lengthy commuting time but rather it was more of the environment in Sydney/Parramatta that was thought likely to affect Mr Riley;

(4) Because of the circumstances in which Dr Lewin's medical opinion entered into evidence and the fact he was not called to give evidence, despite being required for cross-examination, we do not consider much weight can be given to his opinion;

(5) HealthQuest's Dr Casolin accepted that Mr Riley was suffering from major depression and previous alcohol abuse and that he would be at increased risk of developing recurrent depression should he be required to travel an additional 4 hours on 3 or more days per week.

76 We consider it is the opinion of Dr Casolin that is critical here. Dr Casolin accepted that Mr Riley was suffering from major depression and previous alcohol abuse and that he would be at increased risk of developing recurrent depression should he be required to travel an additional four hours on three or more days per week. The was no issue about the independence or validity of Dr Casolin's diagnosis and it was his opinion, not that of Dr Earp, upon which WorkCover acted to medically retire Mr Riley. Accordingly, to refine the first issue for determination on appeal: The question is whether the Commissioner erred in finding that the termination of Mr Riley's employment was not harsh, unreasonable or unjust in circumstances where the appellant was retired by his employer on the basis of a medical opinion, sought by the employer, that the appellant was unfit for the full inherent job requirements of an Regional Inspector (or other suitable position that may have been available) as a result of his travel restriction, such restriction having been found medically necessary because of the increased risk of the appellant developing recurrent depression in the absence of such a restriction.

77 Initially, Dr Casolin found that whilst Mr Riley was fit to work as a Regional Inspector, he would be at increased risk of developing recurrent depression should he be required "to travel an additional 4 hours on 3 or more days per week". Dr Casolin asked to be advised whether this travel restriction could be accommodated. He was subsequently advised that because Regional Inspectors and (included for the first time) Inspectors had to travel, Mr Riley’s restrictions meant that he could not perform the tasks of these positions and, therefore, there was no position available for Mr Riley as a Regional Inspector or as an Inspector. On the basis of this advice, HealthQuest issued a report dated 24 March 2003 that stated:

HealthQuest has now been advised that as an Inspector Mr. Riley is required to travel, and his restrictions do not enable him to do this. Mr. Riley is currently working in Gosford, however the Authority has advised that he is not carrying out the requirements of his position as a Regional Inspector, which require him to travel and be time flexible. HealthQuest has been informed that there is no position available.

Given this information, it is apparent that Mr. Riley is unfit for the full inherent job requirements of an Inspector or Regional Inspector as result of his travel restriction. A certificate to this effect is attached.

78 HealthQuest's report of 24 March 2003 led to Mr Riley's medical retirement. We note that on 10 November 2003, obviously in the context of pending proceedings before the Commission, the appellant attended Dr Earp who provided a medical report stating that Mr Riley was fit to commute to Sydney on no more than two days a week on a monthly basis, he was fit to carry out all the inherent duties of a Regional Inspector, including the travel component and he was capable of the investigation of a fatality provided the deceased was removed prior to investigation. Dr Earp regarded the above conditions as permanent.

79 In relation to the inherent requirements of the job of Regional Inspector and Inspector, Commissioner Ritchie implicitly accepted that, from time to time, persons in these roles were required to be rotated within the industry teams and also between teams. The Commissioner accepted that arising out of this rotation scheme there was a requirement for the appellant's position to be rotated to Parramatta and found that "such a requirement was logical based on the needs of the respondent." We take no different view of the evidence.

80 However, it does not follow that it was necessary for Mr Riley to be transferred to Parramatta. The appellant was "a skilled and competent officer with a wealth of experience and knowledge to impart to others" with almost 18 years of satisfactory service. He found himself in a position where, because of a medical condition arising out of or in the course of his employment, he was unable to fulfil all of the inherent requirements of his job. In our view, it was incumbent on the employer to take reasonable steps to accommodate Mr Riley's limitations; otherwise his dismissal would be, prima facie, harsh, unreasonable or unjust.

81 Commissioner Ritchie considered that WorkCover had taken such steps. At [154] Ritchie C observed that over ten months the parties met on four separate occasions in an endeavour to find a solution satisfactory to both parties; that various options were offered to the appellant but were rejected. In this respect the respondent contended:

Despite the valid and logical basis of the rotation of Mr. Riley to Parramatta, the Respondent did not seek to impose that policy on Mr. Riley without consultation. Once informed of the alleged medical restriction (which it then accepted as valid) the Respondent’s officers held numerous meetings with Mr. Riley between February 2002 and December 2002.

During the course of these meetings, the purpose of the rotation policy [was] explained. In addition, Mr. Riley was advised that he was expected to provide mentoring and technical support to more junior inspectors and that the Respondent needed to have flexible travel arrangements in place for each of its inspectors.

Nonetheless, during the course of these meetings ... a series of options was put to Mr. Riley as to how his medical restrictions could be accommodated within the rotation policy.

On each occasions those suggestions were rejected and Mr. Riley stated that it was his contention that the interruption to his exercise regime on Terrigal Beach would jeopardise his emotional stability. It was put to Mr. Riley that there are a large number of gyms, pools and parks in which he could carry out his exercise regime in Parramatta. However, he stated that it was his preference to exercise at Terrigal Beach.

Moreover, Mr. Riley determined for himself that he thought he could adequately perform the tasks of his position from Gosford and so the rotation policy should not apply to him. The reason that this is of importance is that it formed the basis of Mr. Riley’s objections to the transfer, his objection to the HealthQuest referral which stated that the inherent requirements of the position included being time flexible. It also formed the basis of his appeal to the Medical Appeals Panel.

Mr. Riley seemed to have disregarded that it was within the Respondent’s sphere to determine how staff should be allocated within its organisation and that he could not determine for himself when and where he carried out his duties.

82 The options, according to the respondent, included the following:

(a) flexible hours including an increase of the span of hours, a matter of availability under the Award;

(b) flexible work arrangements;

(c) that the rotation to Parramatta would be for 2 years only;

(d) a trial whereby he travelled to Parramatta 3 days a week and at other times only as requested.

83 There was evidence from the Team Coordinator of the Strategic Intervention Arm of the Construction Team, Tara McCarthy, that she could not find any reason to justify Mr Riley’s move to Parramatta, and felt that she could operate her team more effectively if Mr Riley were to stay at Gosford. However, there was the contrary evidence of Mr Bultitude, Acting Team Manager of the Government and Rural Teams, that there was a need for the Construction Team to have its high level Inspector positions based in either Sydney CBD or Parramatta. Mr Bultitude said in his evidence that assisting and mentoring junior Inspectors could not be done satisfactorily by the use of internal and electronic mail systems and that basing the applicant at Parramatta would have facilitated the development of newer or more junior Inspectors through various activities. He also stated that having the applicant based at Parramatta would have assisted in more effective engagement with industry stakeholders.

84 There was also the evidence of Mr Blake, the Country North Manager for the respondent and Mr Watson, the General Manager of the Occupational Health & Safety Division of WorkCover. They were both of the opinion that in order for Mr Riley to perform his role of Regional Inspector effectively he needed to relocate to Parramatta or Sydney CBD.

85 We accept that an inherent requirement of the job of Regional Inspector was to perform duties and responsibilities that included project management, leadership, mentoring, assessing, dealing with volatile situations and to work after hours if necessary. In order to perform that work effectively, the weight of the evidence was that it was a reasonable requirement for a Regional Inspector to be physically based at Parramatta/Sydney in order to meet the needs of the respondent.

86 We have reservations about the narrow difference between what WorkCover offered by way of a compromise to Mr Riley, that is, an arrangement whereby the appellant could work three days in Sydney and two in Gosford as a Regional Inspector, whereas the appellant was able to work two days in Sydney and three in Gosford. On balance, however, we consider that it would have been impractical to expect the respondent to have Mr Riley remain in Gosford to fulfil the role of Regional Inspector when the evidence was that the position needed to be in Parramatta/Sydney. It would also have been impractical to expect the respondent to have Mr Riley fulfil his role of Regional Inspector by commuting from Gosford to Parramatta within the limits of his travel restrictions.

87 To that extent, the appellant has not discharged the onus of proving that the termination of his employment was harsh, unreasonable or unjust; it was an inherent requirement of his job as Regional Inspector that he operated out of the Parramatta/Sydney office of WorkCover. He was unable to do so because of travel restrictions arising from a medical condition. Accordingly, we do not consider there was any basis to order Mr Riley's reinstatement as a Regional Inspector at Gosford.

88 The matter, however, does not end there. An obligation remained on the employer to consider other options in order to accommodate Mr Riley's limitations if fairness was to prevail. In this respect, we note the following exchange in the cross-examination of Mr Blake:

Q. I suggest there was never [any] compromise advanced which was consistent with the medical restriction, that is that he could not travel to Sydney more than two days a week?

A. That’s correct.

89 The answer given by Mr Blake suggests that WorkCover did not seek to accommodate Mr Riley's medical restriction. However, we note that in his decision, and in the context of his consideration under Pt 7 of Ch 2 of the Act, Ritchie C at [189] and [191] referred to the respondent's consideration of alternative positions at Gosford:

As noted previously the applicant and respondent met in February 2004 and investigated the situation of alternative positions without success. Evidence from the respondent showed that there were two Inspectors positions based at Gosford. These two positions were part of the metropolitan group and therefore were subject to rotation with Sydney/Parramatta. The applicant would therefore be subject to rotation. There were no vacancies in these positions at the time of the hearing. With respect to the position of District Coordinator Lismore the applicant had previously applied for this position but had been unsuccessful.

...

191 Witnesses for the respondent stated that prior to medical retirement that alternative positions were investigated but no employment was available with duties consistent with those to which the applicant was restricted. Mr. Watson for the respondent stated that he was unaware of any vacant Inspector's position at Gosford. As I have noted previously there were only two Inspector positions at Gosford. It is my finding that the respondent had discharged their onus with respect to the availability of an alternative position. I also do not believe that the respondent is obliged to create a new position to accommodate the applicant where a suitable position in accord with any medical restrictions does not exist.

90 Contrary to the Commissioner's finding that there were only two Inspector positions at Gosford, the evidence was there were two Inspectors in the Construction Team at Gosford. In total, there were seven Industry Team Inspectors at Gosford, as well as three or four Inspectors not in industry teams and a Regional Inspector. Although, as Ritchie C observed, Inspectors may be subject to rotation with Parramatta/Sydney, this need not necessarily involve geographic relocation and may simply involve rotation through teams and work groups at the one location.

91 Mr Riley was prepared to accept re-employment as an Inspector at Gosford. What we consider has been left unanswered to any satisfactory degree is whether it was reasonably open to WorkCover to provide Mr Riley with employment as an Inspector at Gosford if such a position was available and considered suitable given the travel restrictions on Mr Riley. Another matter that required exploration was whether there existed another position, other than that of Inspector, which the employer had available and that was suitable.

92 There is some ambiguity in the Commissioner's decision as to whether or not he considered that there were no positions available as alternatives to the position of Regional Inspector (and, therefore, the dismissal was not harsh, unreasonable or unjust). However, Ritchie C appears to have considered that, because there were no vacant Inspector positions in the Construction Team at Gosford and because the respondent's evidence was that there were no other positions available that were suitable to the appellant, it followed there were no alternative positions into which Mr Riley could be placed: See [189], [191].

93 We consider that in finding the termination of Mr Riley's employment was not harsh, unreasonable or unjust, Ritchie C erred in that he did not give adequate consideration to whether there was another position that the employer had available. In circumstances of cases such as this, where an employee has been dismissed because of a medical restriction that prevents the employee from fulfilling the inherent requirements of the job and therefore reinstatement may be impractical, before a finding can be made as to whether or not the dismissal was harsh, unreasonable or unjust, there has to be a full and transparent consideration by the Commission at first instance of whether there was a position available that was suitable for the employee, given his or her medical restriction. If such a suitable position was available a finding that the dismissal was not harsh, unreasonable or unjust may not be open.

94 We have deliberately chosen to say that what needs to be considered in relation to an alternative position is that it should be both "suitable" and "available". We have taken these terms from s 89(2). It is trite law that the remedies under Pt 6 of Ch 2, once a dismissal is found to be harsh, unreasonable or unjust, are available in descending order. The primary remedy is reinstatement: s 89(1) (see, for example, Little v Commissioner of Police (No 2) (2002) 112 IR 212 at 243). If that remedy is impracticable the next available remedy is re-employment "in another position that the employer has available and that, in the Commission’s opinion, is suitable": s 89(2). If that remedy is impracticable, the final remedy available is compensation: s 89(5).

95 Normally, no consideration will be given to a remedy until the Commission has determined that the dismissal was harsh, unreasonable or unjust: Darren James Anderson v Northern Co-operative Meat Company Pty Ltd (NCMC - Butchering Pty Ltd) (2004) 137 IR 404. This has to be the approach in the present case but in determining whether the dismissal was harsh, unreasonable or unjust we consider that an appropriate test in the circumstances, given reinstatement is impracticable, is to inquire whether the employer had another position available that was suitable given the employee's travel restriction. If the answer to that were in the affirmative and the employer failed or refused to offer such alternative employment, it may be open to find the dismissal was harsh, unreasonable or unjust. An appropriate order in those circumstances might be re-employment pursuant to s 89(2). If no suitable position was available it still may be the case that the dismissal was harsh, unreasonable or unjust because, for example, the employer failed to accord the employee procedural fairness.

96 On the question of suitability, it is apparent from the evidence that, at least in so far as an Inspector's position at Gosford was concerned, it was suitable given Mr Riley's skills and experience, subject only to his medical restriction. That is, employment as an Inspector at Gosford was a suitable position, subject to the restriction that Mr Riley should not have to travel four hours on three or more days per week in addition to working his normal hours.

97 It was Mr Watson's evidence that an Inspector in Country New South Wales was required to do a substantial amount of travel on a weekly basis and because Mr Riley had "indicated an inability to travel" he was precluded from taking up a position as a Country Inspector. Putting aside for the moment that we do not accept Mr Riley was not fit for the role of Country Inspector (we will deal with this issue in our consideration of Pt 7 of Ch 2), there was no evidence as to the amount of travel Mr Riley might be required to undertake as an Inspector based at Gosford (which falls within WorkCover's metropolitan region). But even assuming there was a good deal of travel, it seems to us that Mr Riley would not have applied (as an alternative in his application under s 92 of the Act) for a position as an Inspector at Gosford if the amount of travel was in excess of his medical restriction. Moreover, Mr Riley had performed the work of Inspector at Gosford and Tuggerah "for many years" (including a period during which the travel restriction applied) prior to the direction that he was to re-locate to Parramatta. Accordingly, subject to whether an Inspector's position was available at Gosford, there was nothing to suggest Mr Riley was not suitable to fill that position.

98 In her letter to Dr Casolin dated 13 March 2003, Ms Heath, Director Human Resources, indicated that:

An alternative Regional Inspectorate position has been considered in both metropolitan and country regions, however these positions demand similar or more travel and therefore is not suitable with Peter's restrictions.

Peter is currently in our Gosford premises but he is not carrying out the requirements of his position as Regional Inspector, which as mentioned above require him to travel and be time flexible.

As an Inspector or a Regional Inspector Peter would have to travel and his restrictions do not enable him to complete these tasks, therefore, there is no position available to Peter as an Inspector or Regional Inspector.

99 If, as was the case, Mr Riley had been performing the work of Inspector at Gosford and Tuggerah "for many years" (and from February 2001 under the travel restriction) and had, as an alternative, applied to be employed as an Inspector at Gosford notwithstanding his travel restriction, it is impossible to understand how his travel restriction prevented him from completing tasks as an Inspector at Gosford. It seems that WorkCover wanted Mr Riley to perform the work of a Regional Inspector, the classification for which he was paid, and that WorkCover wanted that role performed at Parramatta and not Gosford. But we can see no basis for contending that Mr Riley was unable to perform the inherent requirements of the job of Inspector at Gosford.

100 In light of the medically imposed travel restriction, as a matter of fairness, it was necessary that WorkCover consider whether Mr Riley could continue to perform the role of Inspector at Gosford. Was such a role available? Because of the rotation policy we accept it may have been necessary to remove Mr Riley from the Construction Team. Was there a position available as an Inspector at Gosford outside the Construction Team?

101 Whilst both Ms Heath and Mr Watson used the word "available" in the context of other positions that Mr Riley was considered for, and Ritchie C also referred to the availability of positions, the critical evidence in this respect was that of Mr Watson (Ms Heath was not called to give evidence). It is quite clear from Mr Watson's evidence that he considered an alternative Inspector's position to be available if it was vacant. Mr Watson was asked the question in cross-examination as to what positions, alternative to that of Regional Inspector, were considered at Gosford. Mr Watson replied:

A. We looked at a range of positions that were vacant. There was no inspectorial positions or specialist positions or positions which suited Mr Riley's specialist background.

...

Q. [Y]ou said that you did not look at any inspectorial positions at Gosford either.

A. We looked at as many positions as were available that suited Mr Riley's background.

Q. Well, what were they?

A. As I say, there was no inspectorial positions at Gosford. There was one vacancy, which was Mr Riley's vacancy, there was no other vacancies, as I understand it, as I recall it, in Gosford that suited Mr Riley's background.

Q. No vacant positions?

A. No that is right.

102 Whether there was a position available is not to be equated to a position being vacant. In Commonwealth Steel Company Limited v Ward (unreported, Matter No IRC 3144 of 1993, 16 December 1994), a Full Bench of the Commission's predecessor (Hill and Hungerford JJ and Sheils CC) discussed the meaning of the word "available" in the equivalent provision to s 89(2) in the Industrial Relations Act 1991 (namely, s 250(2)(a)). The Full Bench held that "available" was not the same thing as "vacant". At 15-18, the former Full Commission stated:

The evidence given for the appellant was that there were presently no vacancies in any suitable positions in the light foundry or the bar mill or elsewhere in the works. Mr Crow submitted that the relevant provisions of s 250(2)(a), namely: "another position that the employer has available and that, in the Commission's opinion, is suitable;" should be construed to mean that the other position should be available" in the sense that it was vacant. In the light of the conclusions to which we subsequently come, it is unnecessary to express any final opinion on that matter but we incline strongly to the view that the work "available" where used in the section is not synonymous with the word "vacant". In our opinion, such a construction would give the provisions of s 250(2)(a) very little room for operation and could well render it nugatory in practice. We consider that a construction with that result would be contrary to the objects and purposes manifested in s 250 when construed as a whole and should be avoided if another reasonable interpretation of the provisions is open. That section is designed, as is the whole of part 8 of Ch3 - UNFAIR DISMISSALS, to provide the Commission with jurisdiction to deal with and, in particular, to provide a remedy for cases of harsh, unreasonable or unjust dismissals. Where such a case has been made out, then the Commission has available to it three remedies in what we see as descending order. The primary and most appropriate remedy is reinstatement, as set out in s 250(1). If the primary remedy is "impracticable", then the Commission has then to move to consider the second remedy, namely, re-employment. If that remedy is impracticable, then and then only, does the Commission move to the third and final alternative, namely, an award of monetary compensation which is limited.

As observed above, the equation of the word "available where appearing in s 250(2)(a) with the word "vacant" would be unduly restrictive and, in practice, could very well defeat the purpose of the section. In our opinion, it would probably only be in a very rare case, at the time a decision is made that reinstatement is impracticable but that the applicant should be re-employed in another suitable position of the employer, that that other position would be vacant. Such a problem could, of course, be overcome by the Commission deferring any order for re-employment in another suitable position with the employer until such time as a vacancy occurred therein. This, however, could redound to the significant disadvantage of the employer in that the Commission would, of course, still be in a position to make an order for payment to the applicant of an amount which did not exceed the remuneration the applicant would, but for being dismissed, have received before being re-employed.

We therefore have grave doubts that the legislature intended that the word "available" meant "vacant". If that had been its intention, it would have been a simple matter for the legislature to have said so. In our opinion, the words "another position which the employer has available" where used in s 250(2)(a) mean, on their proper construction, another position that the employer has available in the sense that such a position "exists", that is, that another position is of avail to, capable of being used by, or at the disposal or within the reach of, the employer - whether or not it is vacant at the time. We think that the lack of a vacancy in an available position may be a factor which goes to the question of the vacancy of the applicant's former position to which he may be reinstated is also a factor which may be taken into account when considering the question of practicability. The weight of that particular factor will, or course, vary from case to case and it may well be, in the situation of an employer with a very small workforce or, indeed, one consisting only of an individual employee, that it will be greater than in a case where the employer has available numerous such positions. The larger the workforce, the less the relevant significance of the lack of a vacancy in other suitable and available positions. In so observing that the question of vacancy, either in the former position or another person, is a relevant factor for consideration in determining the practicability of reinstatement or re-employment, we are not to be taken as suggesting that it is the critical or overriding one amongst other relevant considerations which may attach in a particular case.

(The provision referred to in that decision, s 250 of the Industrial Relations Act 1991, was the predecessor to s 89 of the present statute).

103 In contrast, the Full Bench of the Commission (Hill and Maidment JJ and Buckley C) in Effem Foods Pty Limited t/as Uncle Ben's of Australia v Urban (1998) 81 IR 341 had commented (at 346) that:

As we have already observed the power under s.89(2) to order re-employment is limited to re-employment in another position that the employer has available. The section requires the existence of an available and suitable position; it does not authorise the Commission to require an employer to create a position tailored to the abilities of an applicant. The fact that an applicant is physically capable and/or qualified to perform only some functions of a position which the employer has available does not authorise the Commission to require his employment in that position and/or only in those functions of the position which he is capable of performing. Such employment would not be in a position that the employer has available; it would be employment in only part of a position and, in any event, it could hardly be considered "suitable" within the meaning of the section.

104 The correctness of the decision in Effem has been questioned. In Newcastle City Council v Bevan (2001) 120 IR 121 the Full Bench of the Commission (Wright J, President, Walton J, Vice President and Connor C) commented (at 120-121) that:

[I]n the present proceedings the respondent in the primary appeal has, in our view, demonstrated that the Full Bench decision in Effem Foods Pty Limited v Urban is arguably incorrect and should, in appropriate proceedings, be reconsidered...

105 More to the point, in IGA Distribution Pty Limited v Moses (No.2) (2002) 114 IR 307, the Full Bench (Wright J, President, Walton J, Vice President and Redman C) commented at 315 that, whilst it was not strictly necessary to address the operation of s 89(2) in detail, the Full Bench made the following observations (albeit obiter) regarding the different approaches in Effem and Commonwealth Steel, coming down in favour of Commonwealth Steel:

27 In Effem, the Full Bench found that s 89(2) limited an order for re-employment to the re-employment of an applicant "in another position" which the employer had available. It was found that the section required the existence of an available and suitable position and did not authorise the Commission to require an employer to create a position "tailored to the abilities of the applicant" (at 346).

28 Submissions were made during these proceedings as to whether a substantive or actual position was required for an order under s 89(2) to be made. We consider that the view of the Full Bench in Effem, was that the proper interpretation of the words "available position" in Effem involved, in substance, the reading of the words of the provision as requiring the position to be vacant, in the sense that there must be a pre-existing, specified position designated by the employer which was vacant. Consistent with the approach adopted in Commonwealth Steel, we consider this is an unduly restrictive construction of the section which may, in an appropriate case, require more substantial reconsideration.

106 It is our view that for the reasons expressed in Commonwealth Steel and Moses (No 2), the approach taken in Commonwealth Steel to the meaning of the word "available" is the correct one and is to be preferred to the approach in Effem.

107 It follows from what we have thus far said that before Ritchie C was in a position to make any determination as to whether the dismissal was harsh, unreasonable or unjust, the Commissioner was required to have satisfied himself there was no suitable position available for Mr Riley. That is, to paraphrase what was stated in Commonwealth Steel, whether "another position was of avail to, capable of being used by, or at the disposal or within the reach of, the employer - whether or not it was vacant at the time."

108 On this view of the meaning of "available" in s 89(2), a relevant inquiry would, for instance, have been whether it was open to WorkCover to move Mr Riley out of the Construction Team and provide him with another position of Inspector at Gosford. This would have satisfied the rotation requirement and provided Mr Riley with a position that he was prepared to accept. It is apparent that no, or no adequate, consideration was given to this option by WorkCover in considering what alternative positions might have been available for Mr Riley at Gosford or some other location in the State where he could be employed, subject to his travel restriction because the mindset of WorkCover was that for a position to be available it had to be vacant.

109 The difficulty we face in this appeal is that we do not know whether there was a suitable position available for Mr Riley, thus providing the basis for a finding that the dismissal was harsh, unreasonable or unjust and an appropriate order under Pt 6 of Ch 2. Before taking that issue any further, we propose to deal with the questions that arise under Pt 7 of Ch 2.

Whether the Commissioner erred in declining to make an order under Pt 7 of Ch 2

110 The operation of the provisions in Pt 7 of Ch 2 was explained in Cansino v South Western Sydney Area Health Service (1999) 130 IR 1 at page 11:

(1) They [the provisions of Pt 7 of Ch 2] are confined to a person who sustained injury in circumstances which created an entitlement to receive compensation under the Workers Compensation Act 1987 or the Workers Compensation (Dust Diseases) Act 1942. (Since 31 July 1998, the coverage was extended to persons entitled to receive compensation under the Workplace Injury Management and Workers Compensation Act 1998): s 91(1)

(2) The employment of such a person must have been terminated by the employer "because" (that is, for the reason that) the person was not fit for employment and such unfitness for employment must in turn have resulted from the relevant injury: s 92(1). A person is the "employer", and hence liable to meet an order for reinstatement, only if the injury arose (either wholly or partly) out of or in the course of employment with that person: s 91(2).

(3) Such a person may apply to the employer who dismissed him or her for reinstatement to "employment of a kind" which the person must specify when making the application: s 92(1).

(4) Questions may arise as to what is meant by the expression "fit for employment" in s 92(1) in the context of a person undergoing rehabilitation. Presumably, "employment" where used in the subsection has the same meaning as where used in the remainder of Pt 7 of Ch 2. This raises the question as to whether fitness for employment where used in s 92(1) refers to unfitness for employment of any kind or unfitness for the pre-injury employment. It is not necessary to address those issues in the circumstances of the present matter.

(5) Prima facie, the word "reinstatement" imports a notion of becoming re-employed in the work which the person was undertaking at the time of termination of employment: see the discussion of the concept in Deltec International Courier Pty Limited v. Transport Workers' Union of Australia, New South Wales Branch [1993] 50 IR341 at 350-354; in any event, s 91 (3) defines "reinstatement" to include "re-employment". But, such a notion is displaced because the reinstatement is said to be available to employment of a kind specified in the application which, necessarily, imports the possibility of employment to something other than the precise pre-dismissal employment.

(6) "Employment of a kind" refers to the work as specified in the application. The kind of employment applied for cannot be "more advantageous to the employee" than the work in which the person was engaged when he or she first became unfit for employment because of the injury: s 92(2). What is "more advantageous" may be open to debate having regard to remuneration, general working conditions, status and the like; such debate does not arise in these proceedings. However, the kind of employment for which the employee applies for reinstatement may indeed, at his or her election, be less advantageous to the employee than the pre-injury employment, so long as it is not more advantageous.

(7) It is necessary for the person to "produce" (that is, show) to the former employer a certificate from a medical practitioner. The effect of the certificate, that is its general thrust, must be that the employee is fit to undertake the work as described by the employee when making application for reinstatement: s 92(3).

(8) The person may apply to this Commission for a reinstatement order if he or she is not "immediately" reinstated to employment of the kind for which the person applied or to any other kind of employment that is no less advantageous to that person: s 93(1).

(9) An application may be made on behalf of the employee by an industrial organisation of employees: s 93(2); and a reinstatement order may not be made, except in special circumstances, if the application was made more than two years after the dismissal: s 93(3).

(10) Provided all of the pre-conditions outlined above are fulfilled this Commission is empowered to make orders of the kind and in the circumstances described in s 94, and in particular subss (2) and (3) thereof.

(11) An order may be made reinstating the employee to either employment of the kind for which the employee has applied (which may be as or less advantageous than the pre-injury employment) or employment of any other kind that is no less advantageous to the employee than that applied for. In either case, and importantly, any such order can only be made if the Commission is satisfied the employee is fit for that kind of employment: s 94(2).

(12) Whether and to what extent any such order is made under s 94 is discretionary and the section should not be construed as imposing a mandatory requirement upon the Commission to make such an order, subject, of course, to the discretion being exercised in a proper manner. So much is clear from the repeated use in the section of the word "may".

(13) If the Commission is satisfied it is appropriate to make an order under s 94(2), the discretion reposes in the Commission as to which of the alternative courses it should adopt. In exercising discretion it would be necessary to do so on the evidence put before the Commission by the parties.

(14) Because of the provisions of s 94(3), it is apparent that any order made under s 94(2) must be referable to the situation where the employer has "available" employment of the kind to which the employee has applied for reinstatement. As well, any other kind of employment that is no less advantageous to the employee than that applied for may only be the subject of an order under s 94(2) if the Commission has determined that employment of that kind for which the employee has applied for reinstatement is available. This must follow, it seems, from the fact that s 94(3) in permitting an order in respect of employment of a kind that is available but which is less advantageous to the employee as opposed to employment which is no less advantageous to the employee than that applied for may only be made where "the employer does not have employment of that kind available."

(15) The reference in s 94(2) to employment "that is no less advantageous to the employee" involves considerations of advantage and disadvantage not only by reference to remuneration and status but also by reference to any rehabilitation programme and the part that that other kind of employment played in that programme.

(16) A determination of fitness for employment as referred to in s 94(2) must necessarily be made on the basis of medical evidence.

(17) The alternative orders available under s 94(3) may only be made if the Commission is satisfied that the employer does not have employment "of that kind" (that is, the employment referred to in s 94(2)) available.

(18) The provisions of s 94(3) raise questions as to who bears the onus of establishing whether the employer has employment of the kind so specified in s 94(2) available. Given the nature of the orders which may be made under s 94(2) and the resultant burden of any order under s 94(3) being on the employer, it would seem logical that such onus should fall on the employer.

(19) Section 94(3) creates two further alternative bases for the exercise of discretion, but in either case the Commission is required to find that the employee is fit for the alternative employment which is the subject of the order. Again, fitness would appropriately be determined by reference to relevant medical evidence.

(20) The first alternative set out in para (a) of s 94(3) is employment of a kind that the employer has available but which is less advantageous to the employee. That raises the question of what is meant by employment of a kind that is so "available". Given the contrast with the words used in s 94(3)(b), this would appear to be a reference to work in the nature of particular tasks which can be undertaken in a structured manner consistent with the manner in which the employer deploys staff in the context of the operations of the employer's undertaking. If this be correct, as we think it is, then in determining whether employment of that kind is available one is to have regard to the employer's organisational structure and the way in which the employer operates. That is, one excludes, in considering what work is available for the purpose of s 94(3)(a), the possibility that the employer may have to rearrange the manner in which it operates and deploys its staff in order to accommodate any order made. That this is so must follow from the description of the kind of work which is the subject of an alternative order in s 94(3)(b).

(21) Section 94(3)(b) refers to employment of a kind which the Commission considers the employer can reasonably make available for the employee (including part-time employment or employment in which the employee may undergo rehabilitation). That accommodates employment of a kind not currently available and involves a consideration of the position of the employee in terms of physical capacity and underlying expertise, experience, qualifications etc, as well as the ability of the employer to make work of that kind available. In that latter regard, the use of the word "reasonably" would accommodate financial cost to the employer as well as any dislocation, interruption or interference with the manner in which the employer conducts its undertaking and the manner in which the employer deploys its staff; in addition, the usefulness to the employer of the work so arranged to be performed is a relevant consideration.

111 As the Full Bench observed in Cansino, the Commission may make an order reinstating the employee to:

(a) employment of the kind for which the employee has applied (which may be as or less advantageous than the pre-injury employment); or,

(b) employment of any other kind that is no less advantageous to the employee than that applied for; or

(c) employment of any other kind for which the employee is fit, being:

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

(ii) 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).

112 We shall look at each of these options in turn but we note that whatever kind of employment is to be considered for the purpose of reinstating the employee, the employee must be fit for the employment. As the Full Bench stated in Cansino, a determination of fitness for employment as referred to in s 94(2) and s 94(3), must necessarily be made on the basis of medical evidence. We also note that, except in relation to employment of a kind referred to in s 94(3)(b), not only must the employee be fit for the employment, but the employment must be "available".

Employment of the kind for which the employee has applied

113 In the present case, Mr Riley applied for reinstatement (noting that under Pt 7, reinstatement includes re-employment) to his former position as a Regional Inspector or another suitable position such as District Coordinator at Lismore. In the course of the proceedings at first instance it became evident that Mr Riley was also prepared to accept reinstatement as an Inspector at Gosford.

114 Dr Casolin of HealthQuest originally certified Mr Riley as fit for employment as a Regional Inspector but later decided, upon advice by the respondent, that Mr Riley was unable to perform the inherent requirements of the job of Regional Inspector. The respondent's advice to HealthQuest was that there was no position available that would not require Mr Riley travelling an additional four hours on three or more days per week.

115 On 10 November 2003 Dr Earp provided the appellant with a medical certificate that stated, amongst other things:

1) He Mr Riley is fit to commute to Sydney no more than 2 (two) days a week on a permanent basis. That is, he should not be required to commute more than an average of 2 hours each way, on no more than 2 days a week on a monthly average. He is able to cope with some flexibility, with increases in some weeks to be matched by decreases in other weeks.

2) He is fit and able to perform all of the inherent duties of a regional Inspector, including the travel component incurred performing these duties.

3) He is capable of performing investigation of a fatality provided the deceased is removed prior to investigation.

4) I regard the above conditions as permanent.

116 Given the reservations we earlier expressed regarding Dr Earp's evidence, it is inappropriate to place any reliance on the certificate of 10 November 2003, the terms of which had been written by Mr Riley. There is, however, no impediment to relying on the opinion of Dr Casolin. That opinion amounts to this: Mr Riley was fit to undertake the work of Regional Inspector except to the extent he should not be required to travel an additional four hours on three or more days per week because of the risk of a depressive condition re-occurring.

117 We consider it follows that if there was no requirement to travel an additional four hours on three or more days per week, Mr Riley was fit to undertake the work of Regional Inspector based at Gosford and, for that matter, the work of Inspector based at Gosford. As we understand the evidence, there would not be a requirement for Mr Riley to travel an additional four hours on three or more days per week if he were based at Gosford. Accordingly, if there were a position of Regional Inspector or Inspector available at Gosford, it would have been open to Ritchie C to order reinstatement into either of those positions pursuant to s 94(2). In light of our earlier conclusions, however, regarding the unfair dismissal application, we accept there was no Regional Inspector's position available at Gosford.

118 The other position that Mr Riley had applied for was the District Coordinator's position at Lismore. On 15 February 2003 the appellant was advised that his application for that position he had been unsuccessful. Mr Riley had made the application three years previously. The same position was re-advertised and the applicant applied again and was interviewed for the position on 17 March 2003. On 2 July 2003 the appellant applied for a position of Safety Coordinator with the Department of Commerce based at Lismore. The applicant was interviewed and subsequently advised verbally that he had been successful in relation to this position. He was later advised that written confirmation of the offer would not be forthcoming until his appeal with the Medical Appeal Panel had been resolved. On 5 September 2003 the appellant was advised that he had been unsuccessful for the position of Safety Coordinator at the Department of Commerce office at Lismore. On 8 September he received a similar letter from the respondent with respect to a position in Lismore as the District Coordinator.

119 It may be readily inferred that the reason Mr Riley was unsuccessful in his applications for the positions at Lismore was because by the time he received that advice he had been informed he would be medically retired. That is to say, Mr Riley was unsuccessful because based on the advice of HealthQuest, namely, that Mr Riley was "suffering from a health condition that will in all likelihood prove permanent and, as a result you are unable to perform the inherent requirements and job demands of a Regional Inspector and it is likely this will continue for the foreseeable future", it was apparently considered that the appellant was not fit to perform the work of District Coordinator or Safety Coordinator at Lismore.

120 The reason Mr Riley was considered not fit to perform the work of a Regional Inspector was because he should not be required "to travel an additional four hours on three or more days per week". There was evidence from Mr Blake regarding the amount of travel required of District Coordinators to the effect that:

In some instances this can involve travel up to six hours a day when the person has to respond to incidents, undertake investigations or attend meetings.

121 In cross-examination, Mr Blake conceded that it was not necessarily the case that a District Coordinator would be required to travel "six hours a day on top of your normal working hours", but that "it may".

122 Mr Watson gave some evidence about the travel demands on Country Inspectors but not specifically District Coordinators or Safety Coordinators (indeed, there was no evidence about the travel demands on Safety Coordinators based at Lismore). Assuming, however, that Coordinators are required to travel as much as Country Inspectors, Mr Watson's evidence was that Inspectors travel very considerable distances and that it was considered that Mr Riley was not fit for such work because on medical advice Mr Riley's health would be endangered.

123 There were two problems with Mr Watson's evidence. Firstly, Mr Riley had sought to be re-located to Lismore, knowing the travel demands that would be placed on him and despite the medical advice regarding travel restrictions. Secondly, Mr Riley's travel restrictions were in the context of regular commuting from Gosford to Sydney, not the intermittent travel engaged in by Country Inspectors some of which was done outside their normal working hours and some of which was done during their normal hours. We do not have the impression from the evidence that the travel burden on Country Inspectors is of the same character as regular daily commuting from Gosford to Sydney, all of which is to be done before and after the daily span of normal hours.

124 We are not satisfied, and we do not consider Ritchie C could have been on the evidence before him, that Mr Riley was not fit to undertake the work of District Coordinator or Safety Coordinator at Lismore, both positions obviously being available at the time of Mr Riley's medical retirement because WorkCover had advertised for those positions to be filled.

125 The question then becomes whether the position of Inspector was available at Gosford. In the context of our consideration of the unfair dismissal application, we were not satisfied that suitable employment for Mr Riley was not available. Before we can reach any conclusion in the context of Pt 7 of Ch 2 about whether the position of Inspector was or was not available at Gosford, we need to consider the meaning of the word "available" as it is used in s 94 - firstly as it is used in the preamble in s 94(3), which refers to whether the employer has available 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). We consider the meaning of the word "available" used in the preamble must bear the same meaning as the same word in s 94(3)(a), there being no basis to believe that the word should have different meanings. The decision in Cansino does not suggest otherwise, indeed quite the opposite.

126 As we have already noted, the Full Bench in Cansino said of the word "available" as it is used in s 94(3)(a) and (b) that:

Given the contrast with the words used in s 94(3)(b), this would appear to be a reference to work in the nature of particular tasks which can be undertaken in a structured manner consistent with the manner in which the employer deploys staff in the context of the operations of the employer's undertaking. If this be correct, as we think it is, then in determining whether employment of that kind is available one is to have regard to the employer's organisational structure and the way in which the employer operates. That is, one excludes, in considering what work is available for the purpose of s 94(3)(a), the possibility that the employer may have to rearrange the manner in which it operates and deploys its staff in order to accommodate any order made (our emphasis).

(21) Section 94(3)(b) refers to employment of a kind which the Commission considers the employer can reasonably make available for the employee (including part-time employment or employment in which the employee may undergo rehabilitation). That accommodates employment of a kind not currently available and involves a consideration of the position of the employee in terms of physical capacity and underlying expertise, experience, qualifications etc, as well as the ability of the employer to make work of that kind available. In that latter regard, the use of the word "reasonably" would accommodate financial cost to the employer as well as any dislocation, interruption or interference with the manner in which the employer conducts its undertaking and the manner in which the employer deploys its staff; in addition, the usefulness to the employer of the work so arranged to be performed is a relevant consideration.

127 In considering the merits of the application for reinstatement in Cansino, the Full Bench relevantly stated, later in its decision:

We are quite unable to construe the relevant provisions [of s 94(2)] as requiring the respondent in some way to create or fashion a job or position to accommodate the circumstances of the appellant. If there be no employment of the kind for which the employee has made application for reinstatement as supported by appropriate medical evidence then, in our view, the Commission is required to embark upon the inquiries inherent in considering the matters referred to in s 94(3), the nature of which we have earlier referred to. As we have indicated, this requires an examination of the kind of employment available or which can reasonably be made available by the employer (our emphasis).

128 It is difficult to avoid the conclusion that the Full Bench in Cansino took the view that s 94(3) required a position to be vacant if it was to be regarded as being available. It is not easy to reconcile that apparent conclusion with what was the obvious intention of the Legislature in framing Pt 7 of Ch 2. As the Full Bench itself in Cansino noted, in the second reading speech of the Attorney-General and Minister for Industrial Relations in moving for the enactment of the 1996 legislation (Hansard, Legislative Council, 23 November 1995 at 3849), the Minister stated in relation to the Legislature's intention in respect of Pt 7 of Ch 2:

The bill adopts a more flexible approach to the kind of employment to which an employee can be reinstated. This will facilitate the laudable aim of the return to work of injured employees - but it will be balanced against employer interests as it must be employment which is available and for which the employee is fit. It is not intended that orders would be made for employment that is merely of a token nature and does not involve useful work having regard to the employer's operations; or employment that is demeaning in nature, having regard to the nature of the worker's incapacity, education, skills and work experience. It is intended that the meaning of "available" reflect the approach taken by the commission in Commonwealth Steel Company Limited v Ward, Unreported - Matter No. IRC 3144 of 1993. Before leaving the topic of injured workers, I should mention that it is intended that the references to "dismissal" in this part of the bill dealing with the protection of injured workers be capable of applying to instances of "constructive dismissal".

129 In Commonwealth Steel, it will be recalled, the Full Bench took the word "available" in s 89(2) to mean "that another position was of avail to, capable of being used by, or at the disposal or within the reach of, the employer - whether or not it was vacant at the time." Consistent with the view expressed Commonwealth Steel and Moses (No 2), we consider that to equate "available" in s 94(3) with "vacant", is "unduly restrictive". We take that view notwithstanding that Commonwealth Steel and Moses (No 2) were cases concerned with s 89(2) of the Act and we are here concerned with s 94(3). The word "available" is used in the context of re-employment in another position that the employer has available (s 89(2)), or reinstatement to employment of the kind for which the employee has so applied for reinstatement if employment of that kind is available (s 94(2)), or reinstatement in employment of a kind that is available but that is less advantageous to the employee (s 94(3)(a)), or reinstatement in employment of a kind that the Commission considers that the employer can reasonably make available for the employee (s 94(3)(b)). There is no basis, in our view, to construe the word "available" in those contexts as having different meanings, so that in s 89(2) the word is considered to mean something different to "vacant" but in s 94(3) it is considered to mean "vacant".

130 In respect of the reinstatement of Mr Riley in the kind of employment he applied for, namely, Inspector at Gosford, it should be clear from our findings in relation to the unfair dismissal application that the consideration at first instance of whether an Inspector's position was available at Gosford was not adequate.

131 Ritchie C found at [191]:

Witnesses for the respondent stated that prior to medical retirement that alternative positions were investigated but no employment was available with duties consistent with those to which the applicant was restricted. Mr. Watson for the respondent stated that he was unaware of any vacant Inspector's position at Gosford. As I have noted previously there were only two Inspector positions at Gosford. It is my finding that the respondent had discharged their onus with respect to the availability of an alternative position. I also do not believe that the respondent is obliged to create a new position to accommodate the applicant where a suitable position in accord with any medical restrictions does not exist.

132 Whilst the Commissioner found that "alternative positions were investigated but no employment was available with duties consistent with those to which the applicant was restricted", the basis of this finding was essentially the evidence of Mr Watson who stated that the Inspector positions were not available because there were no vacancies at Gosford.

133 Pursuant to s 94(2) the issue to be determined is whether employment of the kind applied for is available and, if so, that the Commission is satisfied the employee is fit for that kind of employment. We have already expressed the view that the appellant was fit to perform the work of Inspector at Gosford. We have also determined that the question is not whether the employment applied for is vacant but rather whether it is available. Accordingly, we consider the Commissioner erred in relation to the application of s 94(2) in holding that employment as an Inspector at Gosford was not available because there were no vacancies.

Employment of any other kind that is no less advantageous to the employee than that applied for

134 It is not entirely clear from the evidence what other kind of employment the respondent considered for Mr Riley that he was fit to perform, that was available, and that was no less advantageous to Mr Riley than that applied for (being the Regional Inspector and Inspector positions at Gosford and the Lismore position). Certainly, it is not clear from what the Commissioner stated at [191] that:

Witnesses for the respondent stated that prior to medical retirement that alternative positions were investigated but no employment was available with duties consistent with those to which the applicant was restricted.

135 It appears, however, a number of Country Inspector positions were considered but it was deemed that Mr Riley was not fit for those positions because of his travel restriction. It is not clear on the evidence whether or not these Country Inspector positions were no less advantageous to the appellant (there was evidence that if Mr Riley was transferred to Lismore, for example he would retain the terms and conditions of a Regional Inspector even if the position he filled was at a lower grade). Nonetheless, we note that we have already dealt with Mr Riley's capacity to perform the work of District or Safety Coordinator at Lismore on the basis of the travel requirements for Country Inspectors and concluded that we could not be satisfied the appellant was not fit for those positions on the ground of his travel restriction. It must follow that we would reach the same conclusion in respect of employment as a Country Inspector.

136 As to the question of availability, an inference can be drawn from the respondent's evidence, particularly that of Mr Watson, that the respondent equated "available" with "vacant". We consider Ritchie C failed to satisfy himself about whether the respondent meant "available" as distinct from "vacant" when it contended there were no Country Inspector positions available.

Employment of a kind that is available but that is less advantageous to the employee

137 Again, apart from the reference to "alternative positions" being investigated and having been found to be not available, it was not evident that the alternative positions included employment of a kind that was less advantageous to the employee.

138 Ritchie C could not have been satisfied on the evidence that the respondent had given adequate consideration as to whether there was available employment of a kind that was less advantageous to Mr Riley in accordance with s 94(3)(a). Indeed, there does not appear to be any reference in the evidence to such employment being considered and there is no reference to it, in terms, in the Commissioner's decision.

Employment of a kind that the Commission considers that the employer can reasonably make available for the employee

139 In Cansino the Full Bench considered that s 94(3)(b) encompassed:

[E]mployment of a kind which the Commission considers the employer can reasonably make available for the employee (including part-time employment or employment in which the employee may undergo rehabilitation). That accommodates employment of a kind not currently available and involves a consideration of the position of the employee in terms of physical capacity and underlying expertise, experience, qualifications etc, as well as the ability of the employer to make work of that kind available. In that latter regard, the use of the word "reasonably" would accommodate financial cost to the employer as well as any dislocation, interruption or interference with the manner in which the employer conducts its undertaking and the manner in which the employer deploys its staff; in addition, the usefulness to the employer of the work so arranged to be performed is a relevant consideration.

140 There was no evidence that WorkCover considered whether there was employment of a kind that it could reasonably make available to the appellant as distinct from employment that was available. The Commissioner stated at [191]:

I also do not believe that the respondent is obliged to create a new position to accommodate the applicant where a suitable position in accord with any medical restrictions does not exist.

141 The Commissioner, however, was obliged to consider whether there was employment of a kind that the employer could reasonably make available (including part-time employment or employment in which the employee may undergo rehabilitation) subject to Mr Riley being fit for that employment. Ritchie C gave no, or no adequate, consideration to the requirements of s 94(3)(b). Accordingly, in this respect we find that the Commissioner erred.

Conclusions and orders

142 It will be evident from our analysis of the proceedings at first instance and the Commissioner's decision that there were a number of errors on the Commissioner's part and his decision cannot be allowed to stand.

143 This Full Bench, however, is not in a position on appeal to make the determination whether the medical retirement of Mr Riley was harsh, unjust or unreasonable because we are unable to reach the necessary conclusion as to whether there was another position that the employer had available and which was suitable such that an order could or should have been made re-employing the appellant pursuant to s 89(2) of the Act. Nor is the Full Bench in a position to determine whether a reinstatement order was appropriate either under s 94(2) or (3) because we do not know whether employment of the relevant kind was available or could reasonably have been made available, as the case may be.

144 Accordingly, pursuant to s 192, we consider the appropriate course is to remit the matter to Ritchie C to further hear and determine the matter in accordance with the findings made, conclusions reached and opinions expressed in this decision. We would anticipate that such hearing would be within a relatively short compass.

145 In the event that, ultimately, the making of an order under s 89(2) or under s 94, as the case may be, is not open to the Commissioner on the evidence, it will be necessary for him to consider whether any remedy should be ordered pursuant to s 89(5) of the Act.

146 We make the following orders:

(1) Leave to appeal is granted.

(2) The appeal is upheld to the extent determined in this decision.

(3) The decision and orders of Ritchie C are set aside.

(4) The matter is remitted to Ritchie C to further hear and determine it in accordance with the findings made, conclusions reached and opinions expressed in this decision.

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LAST UPDATED: 31/03/2006