Ballard v Redcliffe City Council [1994] QIRC 130 (1994) 145 QGIG 809

808 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ 15 April, 1994 15 April, 19941 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 809 #################################################### QUErNSLA'-ID INDUSTRIAL RELATIONS COMMISSION lnJustrial Relations 1\ct 1990 s. 175 - application fo,· reinstatement Daniel Ballard AND Redcliffe City Council (No. 8757 of 7993) ENGINEERING AWARD - STATE COMMISSION[R EDWARD5 18 March 1994 Reinstatement - Termination of Employment - Dismissal - Evidrrnce Injured during Employment Workers' Compensation - Return to Work - Work Assessment Scheme --- Medical Opinion - Work I rial - Workplace Health and Safety Act - Bes! Practices Not Reviewed - Duty of Care - Pust Injury Managen-1ent Poiicv - Disn1issal Harsh, Unj·.Jst and Unreasonable - Reinstatement Ordered from 17 December 1993 REPORT ON DECISION (as edited) In giving a decision from the Bench on 18 March 1994, Commissioner Edwards said:-- ' Rv application lodged in the Industrial Commission on 8 December 1993, the Automotive, Metals and Fngineering Industrial Union of Employees, Queensland sought the reinstatement of Mr Daniel BallanJ to his former pr,sition as Boilermaker with the Redcliffe City Council. Mr Ballard had been employed by the Redcliffe Citv Council a< a maintenance weldPr for approximately seven and a-half years. He was dismissed by the Courcil on 17 December 1993. The relief sought by the applicant was by WJY of the following orders, (aJ that the applicant be reinstated tu hi, iorme1 position, withc,ut prejudice to the applicant's former conditions of employment; (b) such further or other conditions as the Commission considers appropriate The applicant was injured during the course of his employment and wJs granted Workers' Compensation for a work related inju1y. For the purpose oi this matter, the period of interest i~ 20 September 1993 to 15 November 1993, a period of eight weeks. The Workers' Compensation Board ot Queensland, Redclitfc approved work assessment (Exhibit 1) with the employer, Rcdciiffe City Council, for the period of eight weeks trom 20 September to 15 November 1993. lv\s B. Couper, Occupational Therapist, prepared details of the work assessment scheme under the ,upe1vision of counsellor. Mr Vic Mellors. The general guidelines re return lo work program as outlined in Exhibit 1 were: week 1 - three hours rer day, light tabrication tasks for example, picnic tables; week 2 - three to tour hours per day, light fabrication tasks as above, with gradual introduction of heavier tasks; weeks 3 to 8 - gradual inr:rease in work hours and gradua! increase in heavy tasks. -- 1 of 2 -- 810 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE ll 5 April, 1994 This wd, to be achieved ;r a wav where increase In work time was staggered, in relation to heavier tasks, so rhat increases in working hours and the amount of heavier work, did not occur simultaneously. It was further recommended that thP program be graded so that an•: i nnease in ho:Jrs or incrmsre In he2vin0ss only lv, !'ltroduced on alternate days. The program comrnenced as scheduled, and Mr Cook, Supcrvi,or, advised that weeks 1 and 2 were uncJertdken in accordance with the recomrnendation Mr Cook ad\ ised that it was his opinion that Mr Ballard had not completed, in a satisfactory way, lhP remainder of the progr,im. Whilst Mr Ballard had not refused to carry out any tasks requested, there was one occasion on which Mr Balldrd conferred with the Workers' Compensation counsel,or dnd as a resJlt, 1t appears the request was not μroceeded with and Mr Ballard did n0t carrv out the wor,c As a result of the incident, Mr Cook formed the view that Mr Ballard was :1ot in a position to perform all dutiPs dnd for some r1:;ason r>t"lnrmed basicaliy light dut,es. Sn be ,I. Exhibit 15 re\'ml, that thrrP was contact between the Workers' Compensation Board, Redcl1ftc City Council and/or Mr B.illJrd on 24 SeptembPr, 1 October, 19 Onol.JPr, n OctobPr and othPr dates. On each occasion, the report states to the effect 'that the injured worker is progressi11g well on work assessment' In relying on Exhibit 17, the Commission has placed appropriate wei3ht 011 the fact that ,he tile document is very brict, is not a detailed summ:ir)' of all communication Jnd is only μart ot the file of the BcJcirJ In his evidence, Mr Ballard stdted that at no tinlP did he retuse to carry out any tasks. However, it appears he did not irePly avail himself of clauses 'i and 6 of thro assessment, which stated: 'Mr Bal1a1d ,, to ask tcJr assis:ance with any lift,ng task he cons,ders tc, be awkvva,rl or too hca,y tor him to perform saiely as a nr,P n~an irft He is to aμproach ,'vlr Bill Over rn the workshop for this assistance. • Ii lv1r Ball;ird Pxperrences on exacPrbation of his ,ymptoms, it is recommended that hP cease work until h" seeks further medical ;,dvice from rJ, Farmer. In this case, Mr Ballard ,s to notrfy both Mr Peter Cook and the WorkPrs' Compensdtio11 Board of Queensland.'. Bv Exh1b1t 6, Ur Farmer stated rn his ar!idavi1: 'With my dpproval, Mr Ballard undertook a graduated return tn work unrlr'r the supervision of the \Norkers' Compensation Hnard of Qur-ensiand. He was 2b!e to do this withuL, sr 6nrficant :ecurrence ot symptoms, and t11ereiore u11 .:i ,ymptomat1c. basis, w..is quite able to return to his norrnai duties.' As he had been Jblc to retvn to iuil-time work iii a 0 raduated l.,as" i; se<>rP, qurte dDf'rop:iate tCJ n1e to ?llm•' him to rPturn-',o h1< norma, fo·m or ocrupJtIon, v-,h'ch incidentally, is the only one in which he is skilled. TliP Commission hc1s formed the viPw th..it Dr Fdrri1er arrrved dt this opinior1 as a re,ult ui an undPrstanding that the work assessment u·i.;I was completed succe,sfu!ly, as ind'c2ted bv hhibi'. 15, Tc all intents and purposes, the Council w:1s s;itisfied wrth the assessrnent program and therE" was no evidence produced :o the C:onirniss:on to rndicate thJt the Councd .:idvrsed :he \Yorkers' Compen_sation Board or ,\-1, Ballard tlia, in any \hl), thPy were d"satistied with the prop,rarn or its completion. So be it, the Council advi,ed Dr Lim by letter of 11 November 1993, and I quote: The Counc,i arra'lg,c,ci ior /V,r Railaro to undertake ,J work lrial nr[;ani,ed t,y lhe v\'r1 r~ers' Compensation Board, commencing on 20 September 1993. Ur1der this program, /\~r B.iliJrd has brcer1 gradu.illy regaining titness and uurlding up tu a full wnrkin~ day. However, hrs out,es nave beer restrictea to lighter tasks tnan Mr Ballad wouid perior-rn as part ol his norr.1al duties.' This view oi the Council w,1 s not ba,ec! on iacts but 0,1 rumoucs and hearsa1 follow1r1g d1scuss10:1s betv.een ,\-1: Co,ik and /'.\r Shaw. the HJrna,: Relations /'.\anager. On 1(, NovPrnuer 1993, Dr Chen, Lxliibit 2, reported, inter Jlia, 'I think Mr Ballard Is a high risk to injuring his lumbar spine, ii hP returns to his original heavy work.' In evidence, Dr Chen advised that his report was his professional opinion and he expressed no opinion on whether Mr Ballard should be dismissed or remain in the employ of the Councrl. In this regard, I've no doubt that the Workers' Comμensatron program was prepared with all aspects of the employer responsibility, well considered, and having regard to the duty of care provisions of the Workplace, Health and Safety Act In this regard, Mr Ballard suffered the injury at work and further, the question of employer liability is subject to deterrnindtion, if necessary, by the Worker·s' Compensation Board or another place. It is not on this occasion for the Commission to question the professional capacity of lJr Chen and I note his opinion As a result of the report, Exhibit 2, a meeting was convened between Messrs Barton, Shaw, Cook, Francis, Ballard and Lofthouse. This repor·t is the opinion of Mr Shdw and is not a confirmed report. In this regard, Mr Cook advised in his evidence. that certain parts of the summary are inaccurate. In evrdencP, Mr Shaw, Human Relations Man;iger, informed the Commission he was not aware that the assessment procedures, Exhibn 1 had not be followed by the Council, even though as Human Resources Manager, he was the person who was aware 01 the program being μut into place and had the overJII responsibility for rts imμlementdtion. In evidence. Mr Shaw advised he did not know why tf1<> Council had proceeded to thP next steps without followmg thP assessn1Pnt program. Having received the rPport, Exhibit 2, and on initiating the meeting, Exhibit 3, Mr Shaw had discussions with Mr Cook regarding Mr Ballard's en1plovrnent in the workshop. In thrs regard, it seen1s a thurough dUdit of be;t practices was not undertaken, even though Exhiuit 17 made reference to a report of the National Safety Council of 10 October 1993. ThPre had bePn no thorough review of best practices in the past three years, even though Mr Ballard was injurPo at the workplace. I recogn,se i1 limited review was undertaken b\' Mr Cook and Mr Shaw, however, the Commission was not' provided with aI1y report. Fly Exhibit 18, the Cornmissron WdS provided with Redcliffe City Council post injury management policy, whrrh provided, inter alra: '4.4 Pension -- When the inJury rs such that a return to productive work within the Redclrffe City Council is impossible, the possibility of a peI1sIon through the superannuation scheme or government agenq· will be ur.dertaken.', On consideration ot Exhibit 3 abovementioned the Commission i:, not satisfied that the Council attempted to r•npiement its policies; Also, the Commission is unaware of thp Council cleariy cornm,ttinr itself to [WO post injury mJnc1gernc'lt ·et.1uirements arm reviewing of po;,t injury 111,111ageme11t μrograms. Furthermore, rtem 4.1 of the policy state<: 'Where succPssful rehabilitation ocrurs and the risk of rurther injury is removed 01 minimise<i, the employPe shall return to his normal dutie, as soon as possible.' As previously stated, no detailed order of best practice was implemented. Accordingly, there was 011ly a minimal efiort to remove thP risk oi further injury, esμeciallv the cramped working conditions described in ev,dence. In thrs regard, the Commission expresses no view on whethPr the conditions could be improved or not, but is expressing a , iew on \\ hat invest:gations could have been implemented. The Cornrn1s;,iori records that whilst Exhibit 16 was submitted, the CCJmmission has not given consideration at all to thdt, document in this decision. I recosnise that the Counrn, under the Workplace, Health and Satety Act, has a respons1brlrty tor duty 01 care, as well as maintaining and teelrng compassion tor rts employees who have suffered mjury, especially work rclatP.d injuries So lJe 1t, the Council would aIso be: conscious of rts resoun,ibilities wi1P1J drafting rts post rnjury management pot icy. In the examination of the sui:Jmissions, I also acknowledged thJt the Councii madp eftorts in Exhibit 12 to find an altPrnative positior1, at whic'i tirnP 'vlr Ballard was 15 April, 1994 l QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE transicrrPd to the lrbrary. As a result of the factors outlined, as well dS consid<>r;ition of all the submissions, evidence and exhibits. 1he Cor,rnission made its dec:sion on 16 March 1994 at page 1UO of the transcript. The Commission wi1I now be available lo proceed to hear argument, if the p<1rties so desire, in relation to relief dvailable under the prnvi,ions o1 the Act.". Following those submissions Commissioner [-awards made a further decision from thr: Hench:- "Ha\'ing decided tr0 dismissal was h2°sn, unjust and unreasonJbre the Commis,1on gave the parties the oppo1tunity to n1ake submr,sior,s on t,1,.: 1el1et .i,ai:abie. Brief submissions were made. The Commission hereby orders that M1· Daniel Ballard be reinstatPd to his Pmpioymer,t witb tne Rerklitfe City Counc,I as froni 17 DecernbrH 1993 without loss of wages, applicable allowances if any, and with continuity of servicr. If necess.iry the parties are directed to negotic1te the fina11cial arrangeme11ts nen,ssary to irnμlement thi, dPcision, In this regard the Corrn·ris,ion recogn,ses thar cenaIn moI1ey~ may have been paid to Mr Bailard at the trme of nis drsmissal. Whilst the Commission was i11formed that Mr Balldrd can carry out normal duties the mrdical evidence produced was based on materizli a\·ailable to Dr Farrr.er ;it the t'me he undertook the medical examir:ation. The Co1mcil is to notify the Workers' Cornμensation Board of Queensland to ascertain v.hether the Board wishes to reopen their iriP on l\1r Ballard. In th1, regard the Board should be informed that at the r:rn1:; the procedures outlinPd in the dSSPssment h,1d not been completed to the satisfaction of the Redcliffe Crty Council. l'hc Workers' Compensation Bo:.ird should then determine whether the tinal medicJI certificate issued on 2 November 1993 and thP report of Dr Fanner should be reterred back to those doctors !'or further consideration if those doctors deem J review is appropriate. Prior to Mr Bailard rPsuming normal duties the Workers' Cornpensation Roard s'7ould advise Mr Ballard and the Redcliffp Citv Councii of the status of the e:<isting medic:il ccrtiticates or if it is nec.e:,sary tor further clcar..irice to be giw11 by tilr, [3oaro for Mr Ballard to be empio,'ed on such dlities. ·1 he Commission will tRIPphone the Manager, Workers' Cornper.satio1' Hoard, Red<..liffe to dOvise of this decision ;,nd requRst that the matter bn deait w;th exped,tiriu,ly by his office. rhe Cornrn:ssion wii! rosue forn,a: orders, rf necessary, o, if a request is received ironi the μa1tics Dated this e,gh;,:enth dJy ot Mdrch, 19'l4 By the C:ommissror, [LS] M.J. CALI['-!, lndu;,t,:al RegistrJr. AppPdfdnces:- Ms k. lngiis with her Mr R. Veltmeyer of the Automotive, Metal; and Fngineerrng lndu,trial Union of EmployeRs, QuernslJnd. M: C. DJvrs w1t:1 him Mr D. Swari for t',e local Guverr.11"1cn: Associa;ion of Quecn,iand lir,ctJrporated). Operative Date: 1 7 Decernber 1993 Decision ~ Reinstatemen'. Re'eased: 11 March 1094 811 -- 2 of 2 --