Industrial Relations Commission New South Wales

• Medium Neutral Citation: Richard Plunkett v Silverbrook Research Pty Limited [2011] NSWIRComm 1031
• Hearing dates: 1 June 2011, 2 June 2011 and 22 June 2011
• Decision date: 14 July 2011
• Jurisdiction: Industrial Relations Commission
• Before: Connor C

Decision

Application dismissed

• Catchwords: INJURED WORKER - dismissal of employee - workers compensation - allegation that dismissal was due to workers compensation injury not sustained - fitness to return to work - nature of injury considered and rejected as a substantial reason for the dismissal - friction in the workplace - other proceedings for a claim for damages unresolved - occupational health and safety concerns for a return to work- application rejected
• Legislation Cited: Industrial Relations Act 1996; Workers Compensation Act 1987; Australian Human Rights Commission Act 1986; Federal Disability Discrimination Act 1992
• Cases Cited: Bates v G James Safety Glass Pty Limited [2007] NSWIRComm 129; Board of Education v Rice (1911) AC 179; Cheron Transport Pty Limited v Toll Transport Pty Limited [2011] NSWIRComm 1021; Elwell v Cobar Mining Services Pty Limited [2004] NSWIRComm 32; Fox v The Spastic Centre [2010] NSWIRComm 1065; Henderson v Henderson (1843) 67 ER 313; Riley v WorkCover Authority of New South Wales (2006) 151 IR 396; Port of Melbourne Authority v Anshun Pty Limited (1980) 147 CLR 589; Jones v Dunkel (1959) 101 CLR 298; Yat Tung Investment Company Limited v Dao Heng Bank Limited (1975) AC 581
• Category: Principal judgment
• Parties: Richard Plunkett (applicant); Silverbrook Research Pty Limited (respondent)
• Representation: Kellie Edwards (applicant); Kate Eastman (respondent); Slater and Gordon (applicant); Truman Hoyle Lawyers (respondent)
• File Number(s): IRC 915 of 2010

DECISION

BACKGROUND

1 Dr Richard Plunkett holds a doctorate in computer science from the University of Sydney. He was employed as a senior software engineer with Silverbrook Research Pty Limited, commencing employment in early 2001, initially on a six months contract which was subsequently extended. He was offered, and accepted, a permanent position in the middle of 2002. He was at first suspended on pay and subsequently dismissed on Tuesday, 26 August, 2008.

2 Silverbrook was established in 1994. It is an advanced engineering, research and development organising which currently employs 460 employees. It performs research and development projects through teams with expertise in diverse disciplines - digital and analog design, software engineering, mechanical engineering, fluidics, organic and physical chemistry, micro-electromechanical systems, materials science, application specific circuit design, network architecture, test systems, industrial design, factory automation, optics, cryptography and imaging science.

3 Dr Plunkett suffered a work related injury firstly to his right forearm and subsequently to both his forearms. He described that injury as a repetitive strain injury but, in fact, it appears to be more accurately described as lateral epicondylitis (tennis elbow). In any event, his claim over that injury lodged in the middle of 2005 for workers compensation was accepted by Silverbrook's workers compensation insurer. He also apparently had some difficulties which he has claimed caused him stress and affected his mental state flowing partly, he alleged, out of his injury but also difficulties he had experienced with his work colleagues and supervisors. Those difficulties culminated in allegations he made against other staff members (Mr Mike Webb, Mr Simon Walmsley and Mr John Mackay - particularly, it would appear Mr Webb who generally supervised his work).

4 From Dr Plunkett's perspective, the catalyst for his emotional problems at work for Silverbrook appears to be his attempts to take recreational leave which were declined by Mr Webb, what he regarded as an excessive amount of (unpaid) overtime and difficulties he was experiencing in obtaining typing assistance for his work to overcome the problem he was experiencing with his injured forearms. But performance issues also arose in Dr Plunkett's employment. In the middle of 2005 Dr Plunkett's work performance was reviewed by Mr Webb as his supervisor at that time and shortcomings were identified in the areas of communication and interaction with other staff members - something I would regard as vital, having regard to the fact that the work of Silverbrook was conducted in multidisciplinary teams.

5 Silverbrook subsequently offered Dr Plunkett the opportunity to participate in a coaching programme for which Silverbrook paid ($24,000.00 approximately) over a period of six months. Silverbrook asserts that although Dr Plunkett initially participated in that programme he subsequently abandoned it, claiming that he did not need it. Dr Plunkett asserts that he remained in the programme until Silverbrook cancelled it. But by the middle of 2006 in a further review performance deficiencies were still identified, particularly in the area of communication and interaction with other staff.

6 A series of incidents and issues involving Dr Plunkett had also occurred which caused Silverbrook management concerns, viz:

* in the night of Monday, 24 July, 2006 Dr Plunkett had kicked a glass door and broken the glass apparently in some frustration over the performance review process in place for him;

* allegedly informing other staff members that on one occasion he had smashed a window with his fist;

* refusing to communicate in anything but handwritten notes - what Dr Plunkett referred to as "selective mutism", ie a medical/psychiatric condition which denies him the ability to speak at times, particularly in social situations: for instance, on Wednesday, 2 May, 2007 the conduct of Dr Plunkett - acting strangely, not talking but communicating with notes or pointing - was reported by a colleague to Silverbrook management;

* walking aimlessly around the office areas for extended periods of time and staring at some other employees - an allegation that Dr Plunkett denies;

* admitting anger to Mr Webb and indicating that he wanted "...something bad to happen..." to him - also denied by Dr Plunkett;

* conceding that he had a "phobic response" to persons whose first name was "Mike" or who had a black beard;

* attending work after hours at a time when he was suspended and his medical practitioners had certified him unfit for work and continuing to do so, inspecting confidential files in the process, in spite of directions he received not to attend work (ultimately leading Silverbrook management to temporarily deactivate his tag giving him access to the Silverbrook premises); and

* in the view of Silverbrook management, generally acting in a threatening and harassing manner with other staff members: concerns that he would "...go postal..." (which I understand is a reference to incidents in the United States of America where disgruntled and emotionally disturbed employees had caused harm to themselves and others in the workplace).

7 Dr Plunkett admitted that at times he had "...suicidal urges...". He had been referred to a psychiatrist by his attending physician and since late in 2005 he had been treated by him. (He claimed that his emotional problems arose from his work environment and some of the expenses for the treatment was paid under workers compensation.)

8 Ultimately, in the light of concerns by Silverbrook management concerning Dr Plunkett's emotional state, it directed him to attend for psychiatric assessment to determine if he was able to carry out his work for Silverbrook without any risk to himself or other staff members. Dr Plunkett at first refused to attend for psychiatric assessment. He was suspended from employment, whilst remaining on the payroll. He took the matter up with the Association of Professional Engineers, Scientists and Managers [APESMA] whom he claimed advised him not to attend for the psychiatric assessment.

9 Silverbrook ultimately lodged a notification of an industrial dispute over the matter under s.130 of the Industrial Relations Act 1996 . The matter proceeded before Cambridge C and was resolved with an agreement reached between Silverbrook and the APESMA. It was apparently a term of that agreement reached in the s.130 proceedings that he be subject to psychiatric assessment and he ultimately attended Dr Robert Lewin for that psychiatric assessment.

10 In the report Dr Lewin provided on Tuesday, 8 July, 2008, he indicated:

"....In summary, my assessment was directed towards an evaluation of the future risk of dangerousness. Relevant factors from the history are that Dr Plunkett has a long term pattern of personality vulnerability. That pattern has been characterised by periods of reactive emotional lability and intense angry reactions. On occasions angry sentiment has been complicated by acute episodes of self harm. Dr Plunkett has undertaken an intense programme of psychological and psychiatric treatment and it appears that he has addressed these issues directly. There has been a positive response to the treatment intervention which has given rise to a partial resolution of Dr Plunkett's emotional difficulties.

Further treatment is required. It is likely that Dr Plunkett will continue to attend for at least several months, possibly one to two years longer. His position appears to be settling... I found no sign of mental illness. Specifically there was no sign of paranoid disorder. There was no evidence of increased risk upon that basis. Similarly there is no evidence of increased risk of harm to others when considering factors relating to recreational substance use. Dr Plunkett reported that he takes a narcotic type analgesic medication Tramal. He takes the slow release formulation. The total daily dose is 400mg per day. Narcotic analgesia can have sedating and disinhibiting effects. It is not wise to operate heavy machinery or to drive whilst using that medication. You might seek further information on the question of the effect of Tramal (tramadol) on the mental state of Dr Plunkett from a specialist in addiction medicine or from a pain specialist.

I conclude that it is not possible to predict the future behaviour of another individual. However when considering the available information, it is my opinion that the risk of violence in the workplace is low. Dr Plunkett has taken appropriate steps to deal with his emotional difficulties and he has learned appropriate techniques, consistent with evidence-based practice, to mitigate those risks. Apart from the partial reservations regarding tramadol, I do not consider his psychiatric condition a barrier to returning to work, from the perspective of the future risk to others. You asked me to comment upon your '...need to ensure that Dr Plunkett can carry out his work without any risk of harm to himself or to any other employee...'. No medical practitioner could give an absolute assurance on that question..."

11 Dr Plunkett was dismissed from employment, receiving a letter dated Tuesday, 26 August, 2008 from Mr Dilip Kharti, the chief operating officer of Silverbrook, confirming that dismissal, viz:

"....As you know you have been suspended on full pay since last year as the directors of Silverbrook Research had significant concerns about your conduct in the workplace and wanted to obtain an independent review of your fitness to return to work. This report has been provided to APESMA.

The next step in the grievance procedure has now been taken in an attempt to resolve the outstanding issues you have with Mr Webb, Mr Walmsley and Mr Mackay. Ms Janette Lee has undertaken a further investigation, the results of which have been supplied to you.

The directors of Silverbrook Research have considered your ongoing employment...and it has been decided that your employment will be terminated effective today. Silverbrook is required by clause 9.4 of your contract of employment...to give you one month's notice of termination of your employment. Silverbrook elects to pay you in lieu of notice. Your accrued leave entitlements will also be paid out.

In arriving at the decision to terminate your employment the following factors have been taken into account:

1. There have been a number of directions issued to you which you have failed to comply with. These include:

* continuing to attend the workplace after being directed not to and engaging in unacceptable conduct on at least one occasion when doing so (going through your supervisor's filing cabinet after hours);

* failure to complete the professional coaching program that Silverbrook Research arranged for you as you felt you didn't need it; and

* failing to attend the psychiatric examination initially arranged for October, 2007.

2. The report of Dr Lewin dated Tuesday, 8 July, 2008 does not give the directors of Silverbrook Research sufficient comfort that they would be able to discharge their statutory obligations to ensure the health and safety of all employees if you were to return to the workplace. A number of employees have expressed concerns about working with you as a result of your behaviour. Although Dr Lewin says that the risk of workplace violence is low, the directors of Silverbrook Research must take into account the overall impact of your behaviour on others in the workplace and consider that such impact would be a negative one.

3. Your current workers compensation certificate provides for one hour of keyboard work per day. Further, we have been advised by both APESMA and yourself that you experienced difficulties completing the latest document in the grievance procedure as keyboard work does cause you a great deal of stress to your injury. Whilst I understand you have found some utility with the voice recognition software we supplied you with in assisting you to perform computer work with limited typing, the use of such software in the workplace is not compatible with the open plan nature of Silverbrook's office environment. The operational requirements of the business are unfortunately not compatible with your work restrictions. Your workers compensation will, of course, continue with our insurer...

4. In relation to your complaint against Mr Webb, it appears that you are unable to accept the position that, having investigated the matter on now three occasions, it has been concluded that Mr Webb did not act in the manner you have alleged. Silverbrook understands that you sincerely believe Mr Webb treated you badly and that belief, as well as your concerns regarding the investigations into your complaint, has caused you significant distress. However, it will be necessary for you to work with Mr Webb, Mr Warmsley and Mr Mackay from time to time. The directors are concerned that your apparent inability to accept the outcome of the investigations will make it impossible for you to work in a satisfactory manner with these people. We note that APESMA on your behalf acknowledged in correspondence in January, 2008 that relations between yourself (and other Silverbrook Research employees) have deteriorated and based on your e-mail of Friday, 15 August, 2008 we are of the view that deterioration is not repairable.

In order to assist you to seek alternative employment Silverbrook Research would be happy to refer you to an appropriate recruitment agent who may be able to provide specialist advice relevant to your skills and experience. Please let me know if you are interested and I will provide you with contact details..."

12 It was, in fact, Ms Janette Lee, a Silverbrook director, whose decision it was to dismiss Dr Plunkett, albeit it was Mr Kharti who ultimately signed the letter confirming the termination of his services. Ms Lee gave three reasons for her decision to terminate Dr Plunkett's services: (i) an unreasonable failure on Dr Plunkett's part to accept the outcome of the investigations which Silverbrook had carried out with respect to his complaint; (ii) his attendance at the Silverbrook premises after hours contrary to directions made to him; and (iii) conduct towards his colleagues - nothing to do with the injury to his forearms, although that was subsequently mentioned in Mr Kharti's letter.

13 In late 2009 Dr Plunkett made a complaint to the Australian Human Rights Commission [AHRC] alleging discrimination by Silverbrook management, Mr Webb and Mr Mackay under the federal Disability Discrimination Act 1992 . The complaint was dismissed by the AHRCon Thursday, 28 May, 2010. A letter on that date was forwarded to Dr Plunkett's solicitor, viz:

"....Under the Australian Human Rights Commission Act 1986 (AHRCA) the President may decide to terminate a complaint if she is satisfied that the complaint was lodged more than 12 months after the alleged unlawful discrimination took place or that there is no reasonable prospect of the matter being settled by conciliation...

I have carefully considered all the information that has been provided and I have decided to terminate the complaint against Mr Webb as it was lodged more than 12 months after the alleged unlawful discrimination took place. Dr Plunkett was transferred to a different team with a new supervisor in July 2005 and he appears to have had little or no direct contact with Mr Webb after that time. In reaching this decision I took into account the length of the delay in lodging the complaint and the difficulties in accurately recalling events and conversations that took place more than five years ago. I also note that issues related to Mr Webb's supervision of Dr Plunkett have already been the subject of a workers compensation claim. Therefore, I have terminated the complaint against Mr Webb under s.46PH(1)(b) of the AHRCA.

In relation to the allegations against Silverbrook and Mr Mackay, I am advised that the parties attended a conciliation conference on Wednesday, 10 March, 2010. The complaint was unable to be resolved on the day and has not been resolved since this time. Accordingly, I am satisfied that there is no reasonable prospect of the matter being resolved by conciliation and I have terminated the complaint under s.46PH(1)(i) of the AHRCA..."

14 The AHRC indicated in its letter other possible action that may have been available to Dr Plunkett, viz:

"...The AHRCA says that after a complaint is terminated, the complainant may apply to the Federal Magistrates Court or the Federal Court of Australia to have the allegations decided by the court. Information about the court process is available from a court registry..."

15 And Dr Plunkett is presently pursuing a claim for damages before the Federal Magistrates Court. Also Dr Plunkett has pursued a remedy under s.242 of the Workers Compensation Act 1987 . A medical certificate dated Monday, 5 July, 2010 now confirms to Dr Plunkett's satisfaction that he is fit to return to his pre-injury duties. He request by e-mail on Friday, 9 July, 2010 to resume work. That e-mail read as follows:

"....I wish to update you on a development regarding the injuries I sustained working for your company, and embodied in the workers compensation claim I lodged some time ago. My fitness to work has recently been upgraded to being fit for pre-injury duties.

Pursuant to s.241 of the Workers Compensation Act, 1987, I hereby request reinstatement to my former role as a senior software engineer, as I held prior to my dismissal. I would be content to resume work with the print-imaging section or its current nearest embodiment. I would also consider an alternate placement to a role not less advantageous than the role I had prior to my dismissal.

For your convenience, I have accompanied this letter with a copy of my latest workers compensation certificate. I would appreciate your prompt response on this matter..."

16 That request was rejected by Silverbrook Research in a letter dated Monday, 23 August, 2010, viz:

"....Thank you for your e-mail and letter of Friday, 9 July, 2010. We do not have a position available for you..."

THE PROCEEDINGS

17 Dr Plunkett lodged his application under s.242 of the WC Act on Wednesday, 25 August, 2010 seeking his reinstatement in employment. The matter was allocated to me and I set it down for a preliminary hearing in the nature of conciliation on Thursday, 16 September, 2010 but adjourned it at the request of Dr Plunkett until Thursday, 23 September, 2010 and Wednesday, 3 November, 2010.

18 Ultimately, I made directions for filing and serving evidentiary material for the hearing of the matter which was scheduled on Thursday, 24 February, 2011 and Friday, 25 February, 2011. Dr Plunkett was to file and serve his evidentiary material by Thursday, 23 December, 2010, which he did. Silverbrook was to file and serve its evidentiary material in response by Friday, 28 January, 2011. It had not done so by Friday, 11 February, 2011 when its representative in the hearing wrote to me seeking an extension of the time to file its evidentiary material. It proposed that it would be in a position to file that material by Monday, 28 February, 2011 and that Dr Plunkett would have until Monday, 7 March, 2011 for anything he wished to put in reply (instead of my original directions of Friday, 4 February, 2011). Of course, that would mean that the hearing set down for Thursday, 24 February, 2011 and Friday, 25 February, 2011 would have to be vacated.

19 I understood that Dr Plunkett was opposed to the adjournment of the hearing already set down. I set the matter down for a mention and programming on Thursday, 17 February, 2011 to hear arguments from the parties over the programming of the matter but, ultimately, the parties reached an agreement over a timetable for the proceedings. I vacated the hearing on Thursday, 24 February, 2011 and Friday, 25 February, 2011 but instead set the matter down for a mention and further programming on Thursday, 24 February, 2011 and then for arbitration in a hearing on Wednesday, 1 June, 2011, Thursday, 2 June, 2011 and Wednesday, 22 June, 2011.

20 Ms Edwards represented Dr Plunkett in the hearing, calling him to give evidence. Ms Edwards argued for Dr Plunkett's reinstatement in employment with Silverbrook to his former position [s.243(1)] or to a comparable position [s.243(2)]. She also pressed a claim for him to be compensated for loss of earnings since the termination of his services [s.243(4)] but Ms Eastman , representing Silverbrook in the proceedings, opposed that claim for loss of earnings, arguing that it had not been raised earlier in the pleadings. I propose to address only the question of reinstatement at this time in this hearing and reserve the position of the parties on the question of monetary compensation for later hearing, if necessary. Ms Eastman called Ms Lee to give evidence in the hearing.

21 The hearing on Wednesday, 1 June, 2011 was devoted entirely to a further effort on my part to conciliate the matter and an offer made by Silverbrook was left for Dr Plunkett to consider overnight. That offer involved a resumption of work with Silverbrook on a limited, temporary basis working from home (and thereby avoiding any contact with other staff members with whom Dr Plunkett has had difficulties). It was intended to cover both these proceedings before me under the WC Act and the unresolved proceedings in the Federal Magistrates Court. Dr Plunkett had rejected that offer. It appears that he is reluctant to abandon the proceedings in the Federal Magistrates Court. The matter proceeded into hearing on Thursday, 2 June, 2011 and Wednesday, 22 June, 2011.

22 The fact that Dr Plunkett is pursuing both a remedy - substantial damages - before the Federal Magistrates Court (which is presently unresolved) and the proceedings under s.241 of the WC Act - for his reinstatement raises certain problems to my mind which I raised with the parties in the hearing on Wednesday, 1 June, 2011. It would seem to me that from a practical point of view it would be difficult to re-establish an effective employer/employee relationship between Dr Plunkett and Silverbrook with at the same time an unresolved claim for damages against it and its employees by him. I can think of no more destructive issue to re-establish an employment relationship between Dr Plunkett and Silverbrook and the fact that Dr Plunkett remains committed to the other proceedings must give rise to suspicions concerning his motives for instituting these current proceedings before me, ie whether he is genuinely seeking to return to work with Silverbrook or whether the proceedings he has instituted are a vendetta against his former employer.

23 I explored those issues of concern in my decision of Thursday, 28 April, 2011 in Cheron Transport Pty Limited v Toll Transport Pty Limited [2011] NSWIRComm 1021 at paras 7 and 8, viz:

"....If any matter in dispute is resolved or dealt with in earlier proceedings and raised again in subsequent proceedings, not only does that raise the question of res judicata but it may, in fact, become an abuse of process. A party may indeed be estopped from doing so [ Port of Melbourne Authority v Anshun Pty Limited (1980) 147 CLR 589]. So the outcome of the (earlier) proceedings...may leave the (applicant) little to effectively argue in the subsequent...proceedings. In Yat Tung Investment Company Limited v Dao Heng Bank Limited (1975) AC 581 at p.590, for instance, the Privy Council commented that: '...there is a wider sense in which the doctrine of res judicata may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings...'

Where a matter becomes the subject of litigation, it is required that the parties to that litigation bring forward the whole of their case and it is not, except in special circumstances, permissible to later open up the same subject matter, or matters which properly could have been brought forward in the earlier proceedings, in subsequent proceedings. Pleas of res judicata apply not only to points upon which a court forms an opinion but to every point which properly belonged to the subject of the litigation and which the parties, exercising reasonable diligence, might have brought forward at the time [ Henderson v Henderson (1843) 67 ER 313 at p.319]..."

24 It was in that light that at the commencement of the hearing on Thursday, 2 June, 2011 Ms Edwards announced that she would be seeking an adjournment of the matter before me. That course was opposed by Ms Eastman . I indicated that I was not prepared to adjourn these proceedings. I am aware that it was agreed by the parties that the proceeding in the Federal Magistrates Court would be stood over to await the outcome of these proceedings before me. That means that a classic Mexican standoff would occur if I similarly adjourned these proceedings.

25 Whilst it may be the position that some of the issues raised in these proceedings before me would also be ventilated in the Federal Magistrates Court, I see my role as confined essentially to the discrete issues which flows from the relevant provisions of the WC Act, ie whether Dr Plunkett's dismissal arose from his workers compensation injury and whether he is fit to return to work for Silverbrook. Nevertheless, in answering those questions it is, of course, likely that my decision may touch on issues to be ventilated later in the Federal Magistrates Court. For instance, his reinstatement in employment with Silverbrook, which is what he is seeking in this hearing, seems to suggest that he is prepared to resume the working relationships he had before his dismissal which caused him such concern and stress in the first place. That may undermine his claims in the Federal Magistrates Court. But that was explained to him and he understands it and still wishes to proceed with the current proceedings before me.

LEGISLATION

26 That having been said, I now turn to examine the relevant legislative provisions on which my decision in this matter must turn. Ms Edwards described that legislation as beneficial to the injured worker. I agree. In terms of s.241 of the WC Act:

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

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

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

27 It is Ms Eastman's argument that, in fact, at the time Dr Plunkett was dismissed he was fit for employment, albeit on a limited basis, having regard to the injury to his arm. She recorded in written submissions that:

"....the applicant has not established that he was unfit for employment at the time of his termination. There is no evidence which allows the Commission to make such a finding. The WorkCover medical certificate forms refer to a range of options from '... fit, unfit, fit with suitable duties or fit with permanently modified duties ...'. Immediately before his termination, the medical certificates did not state that the applicant was unfit for employment. Rather, it provided that he was fit for suitable duties:

(a) certificate dated Friday, 20 June, 2008... covered the period from Monday, 16 June, 2008 to Wednesday, 20 August, 2008...: 'Is fit for suitable duties - 20 hours per week - keyboarding 1 hour per day'.

(b) certificate dated Monday, 25 August, 2008...covered the period from Wednesday, 20 August, 2008 to Friday, 24 October, 2008...: 'Is fit for suitable duties - 20 hours per week - keyboarding 1 hour per day.","

28 As I understand the position, the word "reinstatement" in s.241 has a wider meaning than is given it in proceedings initiated under Part 6, Unfair Dismissals [ss.83 to 90] of the Industrial Relations Act 1996 . By virtue of s.240(1) of the WC Act a "reinstatement" is expanded to include "re-employment" (provided that, in terms of s.241(2), the position for which the injured worker applies is not more advantageous than the position he had formerly occupied).

29 Ms Eastman asserted that the position which Dr Plunkett formerly occupied with Silverbrook no longer exists. Ms Edwards has asserted that Silverbrook is a large organisation which would have other suitable work available for Dr Plunkett which did not necessarily fall under the supervision of Mr Webb, against whom Dr Plunkett clearly still retains some animosity. That is disputed by Ms Eastman who asserted that any alternative work for Dr Plunkett would still place him under the direct, or at least remote, control and supervision of persons, especially Mr Webb, with whom he clearly had difficulties, which caused him such emotional distress in the first place and with whom he is still pursuing a remedy in the Federal Magistrates Court, alleging human rights violations and seeking damages - not a particularly sound basis for the restoration of any effective employment relationship, I would think.

30 Further, s.242 provides as follows:

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

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

(3) The Commission may not make a reinstatement order, except in special circumstances, if the application was made more than two years after the injured employee was dismissed."

31 And in terms of s.243:

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

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

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

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

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

(4) If the Commission orders the employee to be reinstated, it may order the employer to pay to the employee an amount stated in the order that does not exceed the remuneration the employee would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission."

32 Ms Edwards relied on the decision of the Full Bench of the Commission (Wright J - President, Boland J and Connor C) in Riley v WorkCover Authority of New South Wales (2006) 151 IR 396 and, in particular, the conclusion by the Full Bench (at p.420) that to establish whether there was a position available that was suitable for the employee it was not necessary to establish that there was a vacant position - merely a position "...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...". Together with a claim made as an injured worker, an application alleging unfair dismissal was before the Full Bench in Riley v WorkCover Authority of New South Wales : an unfair dismissal application is not before me in this hearing. The comments in Riley v. WorkCover Authority of New South Wales were directed primarily to the unfair dismissal regime, and in particular, s.89(2) of the State IR Act. The regime for injured workers in the WC Act is expressed slightly differently. The language of s.243(2) - "...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 ..." and s.243(3) - "...employment of that kind available ..." - most likely mean virtually the same thing but I believe that care should be exercised in applying the reasoning from Riley v WorkCover Authority of New South Wales to the current proceedings.

33 In any event, the onus of proof that the dismissal was caused by the injury is reversed under s.244, ie it is for Ms Eastman to satisfy me that Dr Plunkett's dismissal did not flow, either in whole or in a substantial part, from his injury, viz:

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

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

34 Neither Mr Kharti (who wrote the letter terminating Dr Plunkett's services), Mr Webb or Mr Mackay (with whom Dr Plunkett appears to have the most difficulties) or any other staff members (who were allegedly concerned for their safety or the safety of Dr Plunkett at work) were called to give evidence in the hearing. Ms Edwards raised the fact that the evidence for Silverbrook was restricted to Ms Lee alone as supporting an inference that the evidence of those other persons would not have assisted Ms Eastman's position in the hearing [ Jones v Dunkel (1959) 101 CLR 298]. However, the Commission must ultimately rely on that evidence that is actually adduced in hearings by the parties and all that is required in that respect is sufficient evidence to support the submissions made. As Ms Eastman pointed out in her submissions, it was Ms Lee whose decision it was to terminate Dr Plunkett's services.

ISSUES IN DISPUTE

35 Ms Edwards has suggested flaws in the investigation carried out by Silverbrook concerning Dr Plunkett's complaints and the circumstances which led to Dr Plunkett's dismissal. In her written submissions, Ms Edwards commented:

"....It is the case that Dr Plunkett did not agree with the outcome of the complaint he made about Mr Webb to Mr Warmsley in or about November 2005. It is also the case that when Mr Warmsley suggested Dr Plunkett might wish to take the complaint to Mr Whitely or Mr Khatri, Dr Plunkett did so in or about March, 2007 (and after receiving a revised complaints handling procedure). It is true that Dr Plunkett did not agree the investigation was properly handled and he sought to appeal the complaint. An appeal (was) ultimately determined by Ms Lee on Friday, 22 August, 2008. That appeal is not the subject of any complaint to the AHRC.

Regardless of the matters noted above, it is the case that Dr Plunkett accepts he holds a different view to Silverbrook about how Mr Webb treated him and how his complaints were addressed...He does not believe the findings impact on his ability to work for Silverbrook..."

36 There is nothing before me in this hearing which suggests that the investigations carried out by Silverbrook management was deficient, however. Nevertheless, it is opportune to outline what I believe is actually required of an employer in investigating complaints of this nature from employees.

37 I do not believe that an internal investigation by an employer - a purely administrative functions as far as I am concerned - does not necessarily require an employer to act judicially or quasi-judicially , only to act fairly and impartially. The issue is essentially one of natural justice. It is the duty of any employer - or indeed any person investigating an issue - to act in good faith and fairly listen to all sides in a dispute before reaching a decision on the matter but there is no obligation to treat such issues as though there was a trial. They can obtain information in whatever way they think best, provided they give a fair opportunity to all parties to be heard [ Board of Education v. Rice (1911) AC 179 at p.182].

38 Ms Lee recorded in the affidavit which formed the basis of her evidence before me in this hearing:

"...I believe Dr Plunkett did not and could not communicate on a professional level with his colleagues and that his demonstrated inability to accept Silverbrook's decision regarding the complaint was causing significant stress to senior employees, in particular Mr Webb and Mr Mackay.

Dr Plunkett's continued attempts to revisit his complaint were also occupying an increasing amount of management time. I held serious concerns that Dr Plunkett's behaviour would continue to cause disruption to the workplace and that his presence in the workplace, given his history of violent behaviour, placed other Silverbrook employees at an unreasonable risk of physical and/or psychological harm...

I decided to terminate Dr Plunkett's employment. While it was also of concern that Dr Plunkett had not returned to his pre-injury duties since the injury, this was not the reason for terminating Dr Plunkett's employment... Since the termination of Dr Plunkett's employment the duties and responsibilities of the temporary position that Dr Plunkett was performing whilst under medical restrictions have been absorbed by other Silverbrook staff.

39 This hearing turns on the wording of s.241(1), ie whether or not Dr Plunkett's dismissal was "...because he...is not fit for employment as a result of the injury received...". The evidence before me clearly indicates to my satisfaction that Dr Plunkett's dismissal did not actually flow from the injury he received but essentially from his relationship with other Silverbrook staff members and the issues raised in the letter terminating his services. Furthermore, the medical clearance Dr Plunkett has received concerns only the injury to his forearms he formerly had suffered. There is still the question of the alleged stress Dr Plunkett claimed to have suffered in his working relationship with Mr Webb, Mr Warmsley and Mr Mackay, who remain in employment with Silverbrook and, particularly in the case of Mr Webb, under whose supervision Dr Plunkett will return should be reinstated in employment. The psychiatric evaluation of Dr Plunkett does not conclusively support Dr Plunkett's return to work with Silverbrook, to my mind. And Dr Plunkett's application under s.242 of the WC Act has to be seen in the context of the history of his various claims. In particular, in the light of the complaint he has made to the AHRC and the difficulties he highlighted in that complaint, it is odd that he would in fact now seek to return to work at Silverbrook.

40 My task in this hearing is essentially to determine the reason for Dr Plunkett's dismissal by Silverbrook. If he was dismissed because he was not fit for employment as a result of the injury to his forearm [s.241(1)] or substantially because of that injury [s.244(2)] he would be entitled to the remedy of reinstatement prescribed in s.243. There is the presumption in s.244(1) that a dismissal of an injured worker was because of the injury but, in terms of s.244(2) that presumption may be rebutted by the employer - and the onus rests with it in that respect - that the injury was not "...a substantial and operative cause..." of the dismissal.

41 I discussed this issue in my decision of Thursday, 16 December, 2010 in Fox v The Spastic Centre [2010] NSWIRComm 1065 at paras.27 and 28], viz:

"....(The applicant's representative) asserted that to rebut the presumption in s.244(1) it was sufficient to show that the injury of the dismissed employee had an effect on the decision maker: it did not have to be the only reason or, in his view, even the predominant or major reason. To that extent, he took issue with unreported decisions of Sams DP - a decision on Friday, 5 March, 2004 in Elwell v Cobar Mining Services Pty Limited [2004] NSWIRComm 32 and a decision on Thursday, 31 May, 2007 in Bates v G James Safety Glass Pty Limited [2007] NSWIRComm 129 - which held otherwise. It appeared to (the applicant's representative) that (the dismissed employee's) fitness for work, and the difficulties that had emerged in her working relationship with (her former employer) as a result, was a contributing factor to her ultimate dismissal.

I accept that in cases of this nature it is not always possible to distinguish clearly between legitimate reasons for the termination of an employee, eg the employee's misconduct, poor work performance or behaviour, and those reasons which should not legally be open to the employer, eg the termination of an employee protected by the injured worker provisions of the WC Act. There are often a mixture of reasons for a dismissal. But I believe that (the applicant's representative) has raised the bar higher in that regard than is supported by the actual wording of s.244(2). It is a substantial and operative cause to which s.244(2) refers, ie something on which the employer was chiefly motivated in bringing an employee's contract of employment to an end..."

42 Ms Edwards argues in her submissions that the "injury" on which Dr Plunkett relies for his application before me is not only the injuries to his forearms but the emotional issues and psychiatric condition he suffered - partly, she suggested, as a result of the injury to his forearms. Ms Eastman rejected that assertion, claiming that the application Dr Plunkett makes under s.242 of the WC Act is confined to the injury to his forearms. That is the only matter which he referred to in his application and which was the subject of the treatment he received as part of his claim for workers compensation. Moreover, Ms Eastman added that, if Dr Plunkett's emotional issues and psychiatric condition were to be covered in the current proceedings, then there was no evidence of his fitness to resume duties on that account. All Silverbrook has is the certificate from Dr Plunkett's attending medical practitioner concerning his recovery from his injury to his forearms: nothing from his attending psychiatrist to confirm his psychological fitness to resume duties with Silverbrook. Ms Edwards cannot have it both ways: both rely on Dr Plunkett's psychiatric illness and yet provide no confirmation of his fitness on that account to resume duties.

CONCLUSION

43 Notwithstanding the views expressed by Ms Lee in her evidence, confining the reasons for Dr Plunkett's dismissal to matters relating to his work attitude and behaviour, it is Mr Kharti's letter of Tuesday, 26 August, 2008 terminating Dr Plunkett's services which, in my opinion, still provides the main evidence to establish the reasons Silverbrook terminated Dr Plunkett's services. I note that Mr Kharti speaks in his letter of Dr Plunkett's "...fitness to return to work..." but it appears to me that the question of Dr Plunkett's fitness to return to work has to do with his behavioural issues and conduct at work and not the workers compensation injury to his forearms.

44 However, I also note that Mr Kharti does speak in his letter of the injury to Dr Plunkett's forearms, viz:

"...Your current workers compensation certificate provides for one hour of keyboard work per day. Further, we have been advised by both APESMA and yourself that you experienced difficulties completing the latest document in the grievance procedure as keyboard work does cause you a great deal of stress to your injury. Whilst I understand you have found some utility with the voice recognition software we supplied you with in assisting you to perform computer work with limited typing, the use of such software in the workplace is not compatible with the open plan nature of Silverbrook's office environment. The operational requirements of the business are unfortunately not compatible with your work restrictions. Your workers compensation will, of course, continue with our insurer..."

45 That clearly suggests to me that the injury to Dr Plunkett's forearms may have been a factor in Mr Kharti's mind when he wrote to Dr Plunkett, even if it was not in Ms Lee's mind when she made the decision to terminate Dr Plunkett's services. But was it a substantial consideration on Mr Kharti's part? I do not believe so.

46 In this hearing I am satisfied that Ms Eastman has met the onus placed on her by s.244 and that Dr Plunkett's dismissal was not due - wholly or even substantially - because of his workers compensation injury. As Ms Eastman argued in the hearing, it is only the injury to Dr Plunkett's forearms which was referred for workers compensation and not the emotional problems which Dr Plunkett suffered whilst he worked with Silverbrook. The s.242 application is confined to the injury to his forearms alone.

47 I am certainly sympathetic to Dr Plunkett as he seeks to overcome the emotional difficulties which he has experienced and which, in my opinion, remain the central issue standing in the way of constructive work for him with Silverbrook. But, notwithstanding Ms Edwards submissions to the contrary, it would appear that those emotional difficulties are not workers compensation issues and not covered by the protection afforded by the WC Act. As Ms Eastman argued in her submissions, all that is required of her in discharging the onus placed on her by s.244 is to establish to my satisfaction that Dr Plunkett's injury was not the reason, or a substantial reason, for his dismissal. There is no obligation placed on her to show whether or not the reason for the dismissal was valid or even whether or not it was fair. But in any event it seems to me that Silverbrook had genuine concerns on occupational health and safety grounds, both on behalf of Dr Plunkett and the other staff with whom he would come into contact were he to resume work with it and that was the substantial reason for his dismissal (and its refusal for him to return to employment).

48 I therefore dismiss Dr Plunkett's application under s.242 of the WC Act.

P J CONNOR

Commissioner

Decision last updated: 14 July 2011