Lorelle Hillman v NSW Trains [2017] NSWIRComm 1056

Lorelle Hillman v NSW Trains [2017] NSWIRComm 1056

On the unrebutted medical evidence, particularly the evidence of Dr Jones, the applicant was medically fit for part-time customer service, clerical administrative, general administrative station based, Central Station concourse or repeater work, although not for her former PSS or PSA roles. Employment of that kind was available or could reasonably be made available within the respondent's large operations, and an RC2 or otherwise agreed role was not shown to be more advantageous than her former employment. The respondent could not defeat the beneficial reinstatement regime by treating the applicant as an external recruitment candidate and requiring formal recruitment testing; any...

Jurisdiction
Australia
Judgment Date
29 August 2017
Procedural Posture
Application for Reinstatement of Dismissed Injured Worker Under S.241 of the Workers Compensation Act 1987 / Principal Judgment
Outcome
Application granted; reinstatement and lost remuneration orders made.
Legal Topics
['reinstatement of Injured Worker' 'medical Fitness for Employment' 'rail Worker' 'availability of Suitable Employment' 'lost Remuneration']
['industrial Law' 'workers Compensation' 'employment Law'] ['reinstatement of Injured Worker' 'medical Fitness for Employment' 'rail Worker' 'availability of Suitable Employment' 'lost Remuneration']

Case Brief

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Procedural Posture

Application for Reinstatement of Dismissed Injured Worker Under S.241 of the Workers Compensation Act 1987 / Principal Judgment

Legal Issues

  1. 1 ['Whether the applicant was fit for employment in a part-time customer service role, an alternative administrative role, a general administrative station based role, or as a repeater.' 'Whether employment of the kind sought by the applicant was available or could reasonably be made available by the respondent.' 'Whether the employment sought was more advantageous than the employment in which the applicant was engaged when she first became unfit.' "Whether a reinstatement application under Part 8 of the Workers Compensation Act 1987 could be subjected to the respondent's ordinary recruitment and testing process." "Whether a Jones v Dunkel inference should be drawn from the respondent's evidence being confined to particular parts of its operations."]

Ratio Decidendi

On the unrebutted medical evidence, particularly the evidence of Dr Jones, the applicant was medically fit for part-time customer service, clerical administrative, general administrative station based, Central Station concourse or repeater work, although not for her former PSS or PSA roles. Employment of that kind was available or could reasonably be made available within the respondent's large operations, and an RC2 or otherwise agreed role was not shown to be more advantageous than her former employment. The respondent could not defeat the beneficial reinstatement regime by treating the applicant as an external recruitment candidate and requiring formal recruitment testing; any...

Court Disposition

Application granted; reinstatement and lost remuneration orders made.

Orders

  • ['The respondent, NSW Trains, shall within 14 days from the date of this decision, reinstate the applicant as a part-time employee in a customer services or administrative role or in a general administrative station based role at the RC2 or otherwise agreed rate of pay. In the alternative, the respondent shall...