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Reinstatement of injured worker

Speirs v Industrial Relations Commission of New South Wales & Anor [2011] NSWCA 206. Giles JA, Allsop P & Hodgson JA agreeing. 29.07.11.


15 Before any question of reinstatement arises, a worker who has been injured and the worker's employer have rights and obligations in relation to return to work.

16 One of the objectives of the WIM Act, with which the WC Act is to be construed as if it formed part (WC Act, s 2A(2); WIM Act, s 60(2)), is to provide treatment and management of injuries and rehabilitation following injuries in order to promote the return to work of injured workers as soon as possible (WIM Act, s 3(a)). Section 41(1) of the WIM Act provides that the object of Ch 3 of that Act is "to establish a system that seeks to achieve optimum results in terms of the timely, safe and durable return to work following workplace injuries". By s 41A, the requirements of Ch 3 "apply even where there is a dispute as to liability".

17 Within Ch 3, s 48 provides

" 48 Injured worker's obligation to return to work

An injured worker must make all reasonable efforts to return to work with his or her pre-injury employer (that is, the employer liable to pay compensation to the worker) as soon as possible, having regard to the nature of the injury."

18 Section 49(1) correspondingly provides " 49 Employer must provide suitable work (1) If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker."

19 The provisions as to reinstatement are found in Pt 8 of the WC Act. It is headed "Protection of injured workers from dismissal".

20 By s 241, an "injured worker" who is dismissed because he or she is not fit for employment as a result of the injury received may apply to the employer for reinstatement to employment of the kind specified in the application. The employment can not be more advantageous to the worker than that in which the worker was engaged when he or she first became unfit for employment because of the injury, and the employer must be provided with a medical certificate to the effect that the worker is fit for employment of the kind for which he or she applies.

21 Section 240(2) contains the critical definition of "injured worker"

-"(2) For the purposes of this Part, an injured worker is a worker who receives an injury for which the worker is entitled to receive compensation under this Act or the Workers' Compensation (Dust Diseases) Act 1942 ."

22 Section 240(3) provides that a person is the employer of an injured worker for the purposes of Pt 8 "only if the injury arose (either wholly or partly) out of or in the course of employment with that person". The injury bringing dismissal as referred to in s 241 therefore must have been in the employment of the dismissing employer, and the entitlement to receive compensation must be an entitlement to receive compensation from the dismissing employer.

23 Section 242 then provides -" 242 Application to Industrial Relations Commission for reinstatement order if employer does not reinstate(1) If an employer does not reinstate the worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for a reinstatement order.(2) An industrial organisation of employees may make the application on behalf of the worker.(3) The Industrial Relations Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured worker was dismissed."

24 Application to the employer in accordance with s 241 is a necessary prior step to an application to the Commission for reinstatement: as earlier noted, the applicant applied unsuccessfully to the respondent in early 2009. When s 242 speaks of "the worker" it means the injured worker to whom s 241 refers. The two sections must be read together. The definition of an injured worker is brought into the operation of s 242, and "the employer" in s 242 is the dismissing employer from whom the injured worker is entitled to receive compensation.

25 Section 243 then provides that the Commission may order the employer to reinstate the worker. The reinstatement may be to employment of the kind for which the worker has applied or any other kind of employment that is no less advantageous to the worker, provided the Commission is satisfied that the worker is fit for that kind of employment; or if the employer does not have employment of that kind available, it may be to another kind of employment for which the worker is fit as further described in the section. An order may also be made for payment of remuneration from when the application was made to the employer until reinstatement in accordance with the order of the Commission.

26 It is appropriate at this point to note the history of the Commission's power to order reinstatement now found in Pt 8 of the WC Act. The history was fully and helpfully considered by the Commission at [112]-[127], and I will not repeat what is there described. The following is a brief outline, at the expense of accuracy in detail.

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