Consideration
62The primary consideration, as set out in the principles referred to above requires a review of the Order made by the respondent to remove the applicant pursuant to s 181D(1) of the Police Act because the respondent has lost confidence in the applicant. The review of the decision to remove the applicant is not confined to the question of whether the respondent in doing so was justified on objective grounds, but whether, having regard to all the relevant circumstances, the removal was harsh, unreasonable, or unjust, as that test has been developed and applied within the jurisprudence of this Commission over many years: see Hosemans v Commissioner of Police [101] - [104], and particularly at [134] where the Full Bench stated that the Commission's task is to make a fresh and independent decision based on all the material before the Commission and not merely a review of whether the respondent's decision was correct at the time it was made.
63The first ground relied upon by the respondent in losing confidence in the applicant related to his conduct at a community event at Lemon Tree Passage. The applicant was a Senior Constable and had been a police officer for over 11 years.
64Mr Skinner submitted that the question to be answered was did the applicant use force such that was reasonably necessary in respect of a 17 year old youth, who had been placed in the cage of a police vehicle? Magistrate Truscott found that the use of the OC spray by the applicant was not reasonably necessary. However, Frearson DCJ upheld an appeal by the applicant and quashed the conviction and orders of the Magistrate. His Honour observed:
The upshot is I am content to consider the matter on the basis of the crown being required to negate the reasonable possibility that the actions were lawful. The Magistrate, as I read it, seems to have relied upon the evidence of two witnesses, Scott and Hawkins, whom she generally accepted as credible and reliable, and in essence as I understand it, they establish that at the relevant time, (the time the spray was administered), the victim was not misbehaving. The Magistrate however did not accept that the victim had been quiet for as long as the minutes described by Scott and Hawkins, and she said that in her judgment.
The Magistrate rejected the evidence of another witness, Glew, and in my view, correctly, and I do not accept that credibility finding. She saw him and he was declared unfavourable and she rejected him. It was open to her to do that and I accept that credibility finding. The Magistrate also concluded that the appellant may well have believed that his actions would help control the people outside the truck. Now it seems to me that that is a significant finding, and whilst I am not bound to accept that conclusion, the fact is that on that view, the prosecution had not negated that belief. I am not bound to accept it, but my assessment happens to accord with it, so that is the conclusion I reach.
The remaining question is just the question of the reasonableness or otherwise of the actions, and I bear in mind the onus. It seems to me that the situation was disturbing and chaotic, and when one looks at it with clinical analysis later, that can be a little misleading because at the time of the events it is much more difficult to make an appropriate response. It seems from my reading of it, there was drunken misbehaviour inside the police truck and outside the police truck and a degree of chaos and a degree of irresponsibility by people who should know better. You can not stop people from misbehaving.
I am not satisfied as to the precision that the Magistrate seems to have read into the event, and in saying that I am in no way critical of the Magistrate and I have been much assisted by her very learned analysis. I have regard in particular to the interview of the victim and I agree that there was an element of cross-examination, but from my reading of it, it was by no means oppressive, and I think that the victim said essentially what he wanted to say.
I have considered all the evidence now and I have considered the reasoning of the Magistrate which I have been invited to read, and I realise I am not bound by that in a re-hearing.
I have considered the powerful submissions and able submissions by Mr Gibson on behalf of the DPP. I think he has put all the things that could have been put here. I have certainly been assisted by the submissions. I agree that there has been some degree of error of judgment on behalf of the appellant, but at the end of it, I am simply unable to conclude to the required standard that the actions were unreasonable. Accordingly I uphold the appeal.
65The respondent, however, proceeded to issue the Order prior to the applicant's appeal being determined.
66The evidence reveals that a special police operation was organised to monitor a community event at Lemon Tree Passage on 10 June 2006 because anti-social behaviour had occurred the previous year. A decision was made that in such circumstances, there was a potential for further anti-social behaviour at this event. The concerns were well founded. The evidence of both police officers and members of the community who attended the event agree that a potentially volatile situation developed. Two youths became aggressive and needed restraining. They were visited in a police van at the site. One of the youths, Mr Travalos, agreed in cross-examination that he was "jumping around in the van like a gorilla in a cage". At the time that the door of the cage to the van was opened, his evidence was that he " was sitting down probably 5 to 10 minutes before the door came open ." However, Mr Travalos conceded that he was "pretty drunk" when he was placed in the police van and that "no-one is perfect with timing when you don't have a clock on them."
67It was common ground that Mr Travalos repeatedly appeared to those outside the police van to be kicking the inside of the van with such force that it caused the police van to rock back and forward. The applicant was also of the belief that Mr Travalos was hitting his head against the inside of the van. There was a dispute between the applicant and Ms Hawkins and Senior Constable Scott in respect of whether Mr Travalos had ceased thrashing around inside the van shortly before the cage door of the van was opened. The applicant contended that the noise from inside the van continued up to the time when the door was opened. The evidence of Ms Hawkins and Senior Constable Scott was that the noise had ceased shortly before the door was opened. I formed the view that each of the witnesses was endeavouring to accurately recall the events of 10 June 2006. In my view, it was quite possible that either Ms Hawkins, Senior Constable Scott, or the applicant, were mistaken in respect of this aspect of the incident, bearing in mind the circumstances of the night. As I will discuss shortly, the difference in the evidence is not decisive to the outcome of this review.
68It is appropriate to deal briefly with one other conflict in the evidence of the applicant and that of Ms Hawkins and Senior Constable Scott. The applicant's evidence was that when he opened the door of the police van, Mr Travalos kicked out at him. The evidence of both Ms Hawkins and Senior Constable Scott was that they did not see Mr Travalos kick out. However, both witnesses conceded that they lost sight of Mr Travalos for a moment when the door of the van was opened and the applicant stepped towards the van. Mr Edwards did not cross-examine Mr Travalos on this issue. Once again, in light of the ultimate conclusion that I have reached, it is unnecessary to resolve this conflict in the evidence.
69Mr Edwards submitted that the respondent inappropriately viewed the circumstances of the events of 10 June 2006 using the benefit of hindsight. Counsel referred to a decision of the Court of Appeal, in Woodley v Boyd [2001] NSWCA 35, where Heydon JA (Davies and Foster AJA concurring), observed at [1]:
... Any evaluation of police conduct must be made with "the pressure of the events and the agony of the moment" in mind and not by the application of hindsight. McIntosh v Webster (1980) 43 FLR 112 and R v Turner [1962] VR 30, ...
70Later (at [37]), Heydon JA agreed with what was said by Connor J in McIntosh v Webster (1980) 43 FLR 112:
... [Arrests] are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances.
71The applicant's evidence was that he pursued a course of action in an attempt to prevent Mr Travalos from injuring himself, inciting others and causing mob conduct on the night. These are matters that the respondent made no reference to in his reasons for the Order. As I have already observed, the respondent would also have been assisted by the decision of Frearson DCJ. To the extent that it was submitted by Mr Skinner that the judgment of Magistrate Truscott should be given some preference or precedent when considering the charges laid against the applicant, this submission is misconceived. Her decision was quashed. Having regard to all of the circumstances, I find the decision of the Magistrate is of no assistance. Whilst the decision of Frearson DCJ is not binding upon this Commission, the findings of his Honour, in my view, must be given appropriate weight. I find his Honour's reasons persuasive.
72The respondent, in his Order, also relied upon a purported breach of the NSW Police Handbook and Pocket Guide in respect of the use of OC spray, although the manner in which the applicant contravened the Pocket Guide was not particularised in evidence.
73Evidence was given by Mr Pimm, a former police weapons trainer, that the circumstances of a handcuffed person in a police van does not preclude the use of OC spray. Mr Pimm's evidence was that it was open to the applicant to form the view that it was appropriate to use OC spray. This was not challenged other than to the effect that Ms Hawkins was not necessarily wrong when she formed her view that the use of OC spray was inappropriate. The respondent did not call any evidence that contradicted the evidence of Mr Pimm that if the applicant formed the view, due to the circumstances, to use the OC spray, then it was an appropriate use of the spray. Senior Constable Scott, in cross-examination, conceded that if there was a belief held by an officer that a detained person in a van was liable to injure him or herself, then the use of OC spray was appropriate. She volunteered that she had used OC spray in a similar circumstance, although in a difference type of police van. Ms Hawkins also conceded that the use of OC spray was not inappropriate because a prisoner was confined in a police truck or van.
74The applicant also relied on his state of mind on 10 June 2006 in believing that the use of OC spray was reasonable. The applicant provided the respondent with a number of medical reports that diagnosed that the applicant was suffering from PTSD prior to the incident and subsequent to it. Dr Wade, in his report dated 30 October 2007, stated:
... the events of 10th June 2006 - his reactions and over-reactions - are highly consistent with suffering Post Traumatic Stress Disorder, in particular, where depressive symptoms would also add to blurred judgment. ... He can be exceedingly anxious, his mind is over-active with negatives, seeing danger, being very scared of what might happen next and also in this state increasingly going into a dissociative state - ...
75Dr Wade, in his report dated 22 October 2008, stated:
The PTSD has worn him down and as is often the case, the PTSD is often a dance of fear and aggression, much like the two chase one another's tails, ...
76The respondent concluded that after carefully reviewing all of the material associated with the matter, he could see no additional mitigation or reasons for the applicant's conduct that would provide him with any basis not to lose confidence in his suitability to remain as a police officer.
77Curiously, the respondent referred the applicant to HealthQuest on 11 March 2008 to determine the applicant's medical condition and fitness for duty. An inference may therefore be drawn that the respondent, prior to issuing the Notice pursuant to s 181D(1) of the Police Act , had given consideration to the fact that the applicant was, as a result of injuries sustained during the course of his employment, possibly no longer able to fulfil his duties of office. The respondent proceeded to determine the complaint pursuant to s 181D prior to a decision being made by HealthQuest which found the applicant unfit.
78Mr Skinner did not seek to challenge the medical evidence relied upon by the applicant. However, counsel submitted that there was competing medical evidence as to whether the applicant suffered from PTSD. Mr Skinner pointed to a report by Dr R Kaplan of HealthQuest, who was retained by NSW Police, that diagnosed the applicant with an adjustment disorder, but rejected that he was suffering from PTSD. However, an appeal of the HealthQuest decision by the applicant was successful. The finding of the Workers Compensation Commission was that the applicant was suffering from PTSD. Mr Skinner submitted that the respondent was not omnipotent and that he was not aware of the HealthQuest process. However, in my view, it is incumbent upon the respondent to consider all relevant material before he makes a decision that he no longer has confidence in an officer which results in the termination of employment.
79It is clear from the medical evidence that the applicant had a pre-established injury. This is not a case where the applicant's PTSD manifested itself as a result of the Notice pursuant s 181D(1) of the Police Act . His cessation of work in 2007 was unrelated to the events on 10 June 2006. However, in my view and I find, his condition may well have played some part in how he perceived the intensity or severity of what was occurring on that particular night. The applicant's evidence was that he was fearful and overwhelmed by the events of that evening and came to a conscious decision to use the OC spray. It was never put to the applicant that his understanding of the circumstances at the particular time he used the spray was wrong, nor was it said that his intention was wrong, or that he had any other motive in respect of Mr Travalos, who was unknown to him. The applicant's description of his mental process and his thoughts on the evening of 10 June 2006 were never challenged.
80Mr Skinner submitted that there was an inconsistency in the case mounted by the applicant. Counsel submitted that, on the one hand, the applicant contended that he acted completely reasonably on 10 June 2006, which was the finding made by Frearson DCJ. However, on the other hand, the applicant contended that his judgment at the time was impaired. I do not share counsel's concern. The applicant has always contended that he acted reasonably, but points to his medical condition at the time as a mitigating factor in circumstances where the respondent has concluded that he has lost confidence in the applicant.
81Turning to the second ground relied upon by the respondent, the applicant has, at all times, conceded that he erred in approaching and speaking to Ms Hawkins after being directed not to contact any officers involved in the incident. Mr Edwards submitted that the applicant was in breach of the directive given to him in a technical sense. Counsel contended that the applicant had spoken to Ms Hawkins, but not about the event itself. The evidence of the applicant and Ms Hawkins was, broadly speaking, consistent. They were personal friends before the incident. Upon a proper analysis of the evidence, broadly speaking, there was no oral discussion of the actual event in such a way as to impugn either Ms Hawkins or the applicant. Ms Hawkins' evidence was that the applicant said "to tell the truth ...". In my view, the evidence is clear. I find that the applicant did not have an improper motive in speaking to Ms Hawkins. His motive was that he "just want to make sure it's nothing personal."
82Mr Skinner submitted that the disobeying of a reasonable direction by a police officer is a serious matter. I agree with this characterisation. In my view, internal police investigations are sensitive matters and it is important to quarantine information and key witnesses from discussing their evidence. Needless to say, the leaking of information could destroy an investigation at an early stage. However, the question that needs to be determined is whether, in the circumstances of this case, the failure by the applicant to strictly follow a directive should result in a finding of loss of confidence leading to dismissal.
83In determining this review, the Commission is required to have regard to not only the conduct seen by the respondent to justify removal of the applicant, but also the public interest, which is to be taken to include the interest of maintaining the integrity of the NSW Police Force. This includes the fact that the respondent made the Order pursuant to s 181D(1) of the Police Act . As I have already observed, significant weight must be accorded to the findings of Frearson DCJ that the actions of the applicant were not unreasonable. This was a matter that the respondent did not take into account and may have resulted in a significant injustice being placed upon the applicant. It may be said that the respondent could have stayed his hand and come to a similar decision on a different basis. However, it is fruitless to pursue this as the respondent did not do that and it would be purely speculative as to what he may have done had he taken that step.
84The Commission is also required to have regard to the interests of the applicant. The applicant had previously served as a police officer for over 11 years without adverse notice. The Order pursuant to s 181D(1) of the Police Act was made two years and five months after the event. During this time, the applicant was promoted. In 2007, the applicant was appointed to "A" List duties.
85Mr Edwards submitted that such an appointment falls within s 66A and s 67 of the Police Act. These sections are found in Pt 6 Non-executive police officers, Division 2 - Appointments to non-executive police officers. These sections infer that for the applicant to be appointed to an "A" List designation, either permanently or temporarily, he must be of sufficient merit and have the confidence of the respondent. During the relevant period of time, and subsequent to the incident, the applicant relieved as a Sergeant. In the period between the incident and receiving the Order, the applicant received a unit citation.
86The applicant has become incapacitated for further police work and carrying out his normal duties as a result of an injury sustained in the course of his employment. The injury first occurred prior to and independently of any circumstance related to the Notice under s 181D(1) of the Police Act . There were therefore, on the medical evidence, mitigating circumstances with respect to the applicant's actions on 10 June 2006. This included his state of mind by which he sought to explain his conduct.
87The respondent did not put in issue either the medical condition or the effect of the medical condition upon the applicant. The applicant's medical evidence was served in accordance with the Uniform Civil Procedure Rules 2005. The medical evidence was untested by the respondent. However, the respondent did not address the question of the unjustness that may arise in circumstances where the termination of an officer for conduct that was effected by, or caused by a medical condition brought about by the duties required by his service and not through any act of misconduct. In Hessenberger v Commissioner of Police [2010] NSWIRComm 24; (2010) 191 IR 468 at [31] - [33], the Full Bench determined that the respondent ought to take into account as a significant factor the medical evidence relied upon by the applicant to explain or excuse his conduct the subject of the complaint.
88Although the applicant advances the proposition that he was permanently unfit to discharge his duties and remains so, Mr Edwards contends an order of reinstatement under s 89(1) of the Industrial Relations Act 1996 (" IR Act ") would adequately deal with the applicant's medical condition if the applicant was returned to duties undertaken by him at the time of his dismissal, and the respondent was ordered to give effect to the workers' compensation certificates provided to him prior to the applicant's termination.
89Mr Skinner submitted that in the circumstances of this case, where the applicant himself advances the proposition that he is permanently unfit to discharge his duties, the Commission cannot order reinstatement. I will return to deal with this submission after determining the question of harshness.
90The applicant was also remorseful in respect of his failure to comply with the directive, stating in cross-examination that looking back, he certainly should not have spoken to Ms Hawkins. His removal also resulted in the applicant forfeiting any rights he may have pursuant to the Crown Employees (Police Officers Death and Disability) Award 2005. He may have been entitled as a result of the injuries suffered by him, prior to the incident and in the course of his duties, a benefit pursuant to the Award. His removal also impacts upon his superannuation entitlements.
91At this review, the Commission was confronted with a situation where the key basis of the decision of the respondent had dissolved and the reasons for dismissal therefore rested on a much narrower foundation than the decision that was made which is the subject of these proceedings.
92I have considered each of the tripartite tests as to whether the applicant's removal was harsh, unreasonable, or unjust. Taking into account all of the relevant considerations I have identified in this decision, and in striking what I consider to be a proper balance between the competing interests embodied in s 181F(3) of the Police Act, I have concluded that the removal of the applicant from the NSW Police Force was harsh in its consequences for his personal and economic situation: Wells v Commissioner of Police [2000] NSWIRComm 157; (2000) 100 IR 106 at 118. If the removal was to stand, I consider that the applicant's future life would be severely affected. Removal in those circumstances, having regard to the applicant's conduct, would be too harsh a sanction.
93Having reached this conclusion, s 181G of the Police Act then applies the provisions of the IR Act "in the same way as they apply to an application under Pt 6, Unfair Dismissals in Ch 2 of that Act", subject to some minor modifications as set out in s 181G of the Police Act .
94Consequent upon a finding of harshness, the applicant seeks, in his amended application, as his remedy either:
(a) that the respondent order pursuant to s 72A of the Police Act that he be retired - i.e, applying that section, on the basis that he "is found on medical grounds to be unfit to discharge or incapable of discharging the duties of [his former] position"' or
(b) the Commission exercise its powers under s 89(1) of the IR Act to order the reinstatement of his employment on the following conditions:
(i) that the applicant's employment be reinstated from the date of the Order of the Commissioner of Police, being 19 November 2008; and
(ii) that the respondent give effect to the applicant's WorkCover certificates provided to the respondent or its agent since 25 July 2005.
95Section 72A of the Police Act provides:
72A Incapable non-executive police officer may be retired
If:
(a) a non-executive police officer is found on medical grounds to be unfit to discharge or incapable of discharging the duties of the officer's position, and
(b) the officer's unfitness or incapacity:
(i) appears likely to be of a permanent nature, and
(ii) has not arisen from actual misconduct on the part of the officer, or from causes within the officer's control,
the Commissioner may cause the officer to be retired.
96In the context of a consideration of the applicant's submissions as to remedy however, the starting point is that it is the applicant's own case that he meets the medical pre-condition for reinstatement under s 72A of the Police Act, that is, that on medical grounds he is "unfit to discharge or incapable of discharging the duties" of his former position as a sworn police officer, and that that unfitness or incapacity appears likely to be of a permanent nature.
97Mr Edwards submitted that the Commission was not confined to the orders provided for in s 89 of the IR Act . This section enables the Commission to make orders for reinstatement, re-employment, remuneration, and compensation. Counsel submitted that the position of the respondent in respect of the employment relationship with police officers was unique. It was contended that the respondent was empowered by the Police Act to exercise a discretion to terminate the services of a police officer in two ways:
(i) medical retirement pursuant to s 72A of the Police Act;
(ii) dismissal pursuant to s 181D.
98It was submitted that, taking into account the applicant's circumstances, the respondent could have exercised his discretion in either one of the means provided by the Police Act and he chose removal pursuant to s 181D.
99Mr Edwards contended that if this was a true merit review by the Commission, then it would be a review of the exercise of the discretion of the respondent to effect an end to the applicant's services, that is, not only those remedies under s 89, but to include a remedy to order that the "preferable or correct decision" was that the respondent should have exercised his discretion pursuant to s 72A of the Police Act.
100As developed by the applicant's counsel, it is clear that this application seeks that the Commission order firstly that the applicant be re-employed or reinstated to his former employment and then the respondent retire him under s 72A. It cannot realistically be pressed otherwise. This Commission, in my view, has no power under s 72A of the Police Act. Nor, in light of the Court of Appeal's decision in Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47; (2010) 193 IR 244, does s 89 of the IR Act enable such an order to be made for the reasons that I will shortly discuss. At most the respondent could form the view that that was the preferable or correct decision which should have been made in November 2006. However, for it to be re-made now, the applicant must first be reinstated.
101Understood in this way, it is apparent that this alternative remedy sought by the applicant is not an alternative at all. It is merely an extension of the primary remedy sought, that the applicant be reinstated to his former position as a police officer.
102It cannot be doubted that s 89 provides the statutory basis for the jurisdiction of this Commission to make any orders in these proceedings. There is nothing else in the statutory scheme underlining these proceedings to found any other power in this Commission to make orders in favour of the applicant.
103The meaning of condition (ii) in the amended application was explained by counsel for the applicant in his opening submissions, as seeking in effect that the applicant be restored to the employment of the respondent as a police officer on sick leave. It was made clear however, that if that were to happen, the applicant would seek to be medically discharged, not ever to return to work with the NSW Police Force.
104The powers to make orders in favour of the applicant in these proceedings must be found within s 89 of the IR Act.
105Section 89(1) provides:
89 Orders for reinstatement, re-employment, remuneration, compensation
(1) Reinstatement The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed.
(2) Re-employment If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable.
(3) Remuneration If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order.
(4) Continuity If the Commission orders reinstatement or re-employment, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal.
(5) Compensation If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave.
(6) When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment.
(7) T hreat of dismissal In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat.
(8) An order under this section may be made on such terms and conditions as the Commission determines.
106It was submitted by Mr Skinner that in the circumstances of this case, where the applicant himself advances the proposition that he is permanently unfit to discharge his duties, the Commission cannot order his reinstatement.
107Counsel relied upon a recent decision of the Court of Appeal in New South Wales Department of Health v Industrial Relations Commission of New South Wales as authority for the principle that the Industrial Relations Commission does not have the power to order re-employment of an employee under s 89(2) of the IR Act on the condition that he or she resigns.
108Mr Edwards' reply to this submission was that the applicant had not sought reinstatement with a supplementary order as to medical discharge. Counsel submitted that neither the High Court of Australia's decision in Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 nor the Court of Appeal's decision in New South Wales Department of Health were similar on a factual basis to this matter and as such can be distinguished. Mr Edwards submitted that the reasoning of the High Court in Blackadder was that the worker was to be reinstated in his former position. Counsel noted that McHugh J observed at [14]:
To construe the power "to reinstate" as confined to restoring contractual or other legal rights fails to give full effect to the term "reinstate". To reinstate means to put back in place. In this context, it means that the employment situation, as it existed immediately before the termination, must be restored. It requires restoration of the terms and conditions of the employment in the broadest sense of those terms. It empowers the Commission to do more than restore the contract of employment. So far as practicable, the employee is to be given back his "job" at the same place and with the same duties, remuneration and working conditions as existed before the termination. The Full Court of the Federal Court erred in the present case by holding that "the emphasis on appointing the employee to a 'position' demonstrates that it is the contractual position which is either to be restored in its earlier terms or in equivalent terms.
109The High Court's reference to "not merely the restoration of a contractual relationship or a mere title, or for some other symbolic effect" could not, so it was submitted, refer to the context in which the applicant found himself. It could not capture an injured worker seeking to obtain his entitlements under the provisions of the Workers Compensation Act . An employee on workers compensation benefits is still an employee and entitled to such rights and entitlements that continue to accrue to employees, for example, long service leave.
110In New South Wales Department of Health, Spigelman CJ, with whom Tobias JA and Handley AJA agreed, stated at [21]:
... The idea of "re-employment" necessarily requires a return to work. There is no power to order "re-employment" which involves no return to work at all. (Cf Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 esp at [13] - [15], [33] - [34], [43] - [44], [65], [69].
111New South Wales Department of Health considered the remedy of re-employment under s 89(2) of the IR Act as opposed to reinstatement under s 89(1). The wording of the particular section under review by the High Court in Blackadder, the then s 170CH(3) of the Workplace Relations Act 1996 (Cth), drew no distinction between the two concepts.
112The passages from the respective judgments in Blackadder of McHugh, Kirby, Hayne, and Callinan and Heydon JJ, cited by Spigelman CJ in New South Wales Department of Health at [21], emphasise that the term "reinstate" means to put back in place the substantive employment relationship including the provision and doing of real work, not merely the restoration of a contractual relationship or a mere title, or for some other symbolic effect.
113The Court of Appeal also commented upon the ambit of s 89(8) of the IR Act as follows, per Spigelman CJ, stated at [23]:
Pursuant to s 89(8) of the Act, the Commission can impose "terms and conditions" on "an order under this section". The conditions able to be imposed pursuant to this power must be attached to something capable of constituting an "order" within s 89(1) - (5). There was no such order. Section 89(8) is not a power enabling the Commission to do whatever it thinks is fair and/or reasonable. The "conditions" identified as 4(i) and (ii) are not conditions within s 89(8).
114The conditions referred to by the Chief Justice were found in Order 4 of the Full Bench decision which was challenged in the Court of Appeal. Order 4 was in these terms:
(4) The appellant is re-employed in his former position effective from the date of this decision on the following terms and conditions:
(i) the appellant will not return to work and he shall resign in writing effective from the day immediately following the date of this decision;
(ii) for the period from 30 July 2007 to the day immediately following the date of this decision the respondent shall pay to the appellant within 14 days the wages he would have received if he had not been summarily dismissed, together with any benefits, such as annual leave, long service leave and superannuation, that would have accrued to the appellant from 30 July 2007 if he had not been summarily dismissed.
115In Commissioner of Police v Eade-Smith [2010] NSWIRComm 162; (2010) 200 IR 424, the Full Bench (Walton J Vice-President and Staff J; Kavanagh J dissenting), upheld an appeal by the Commissioner of Police where Backman J had found the removal of Mr Eade-Smith from the NSW Police Force was harsh. Backman J made the following orders which were quashed by the majority:
(1) The applicant's removal under s 181D(1) of the Act was harsh.
(2) The applicant is reinstated to the NSW Police Force on and from the date of this Decision on the following terms and conditions:
(a) the applicant will not return to active duty in any capacity but is to take immediate steps to apply for a medical discharge
(b) the applicant shall not receive any back pay or compensation from the date of his removal until the date of this decision in recognition of the seriousness of the misconduct which formed the basis of his removal under s 181D(1) of the Police Act
(c) immediately upon his reinstatement the applicant will remain on suspension with pay
(d) should the applicant be unsuccessful in his application for a medical discharge he will resign forthwith from the NSW Police Force.
116Her Honour's orders were made prior to the decision of the Court of Appeal in New South Wales Department of Health . The majority noted that the orders were predicated upon a basis now unsustainable in the light of the judgment by the Court of Appeal in New South Wales Department of Health (at [6]).
117Mr Skinner submitted that the question for determination in this matter was exactly the same as that posed by the majority in Eade-Smith at [16] where the majority observed:
In this matter the question is whether an order to reinstate may be made in the light of Department of Health in circumstances in which Mr Smith may not be able to, wholly or partly, carry out the duties of his former position or may or may not be able to perform duties of 'another position' under an order for re-employment.
118I do not agree with counsel's submission that the same question arises here. It may be, as I observed in my Statement issued on 6 October 2010 that having regard to the medical reports relied upon by the parties during the proceedings, the applicant was not fit for employment in the NSW Police Force at the time of his dismissal. This was the basis that I sought an up-to-date medical assessment of the applicant's fitness (as at the date of hearing) because, for example, if the applicant had been assessed as fit for employment in the NSW Police Force, this would have limited any argument in respect of the impracticability of reinstatement. In light of the position adopted by the respective parties, I am required to proceed to determine this matter on the basis that the applicant is unfit, being the position that the respondent raised subsequent to the judgment in Eade-Smith . The relevant judgment in that matter is that of the majority which left this question open.
119In Blackadder , McHugh J in dealing with the question of what was required by an employer in circumstances where a reinstatement order had been made by the Australian Industrial Relations Commission, stated at [14]:
To construe the power "to reinstate" as confined to restoring contractual or other legal rights fails to give full effect to the term "reinstate". To reinstate means to put back in place. In this context, it means that the employment situation, as it existed immediately before the termination, must be restored. It requires restoration of the terms and conditions of the employment in the broadest sense of those terms. It empowers the Commission to do more than restore the contract of employment. So far as practicable, the employee is to be given back his "job" at the same place and with the same duties, remuneration and working conditions as existed before the termination. The Full Court of the Federal Court erred in the present case by holding that "the emphasis on appointing the employee to a `position' demonstrates that it is the contractual position which is either to be restored in its earlier terms or in equivalent terms".
120The majority in Eade-Smith observed at [20] that it was instructive to consider his Honour's observations in light of the particular issue that arose in Blackadder which McHugh J explained was (at [1]):
The point of principle involved in this appeal is whether an employer reinstates its employee "to the position in which the employee was employed immediately before the termination" within the meaning of s 170CH(3) of the Workplace Relations Act 1996 (Cth) when it: gives the employee the title of his former position; pays the employee the amount earned for ordinary time by persons in that position together with the average of the tally or bonus payments paid to employees in that position; but refuses to provide the employee with any duties until he undergoes a medical examination and satisfies the employer that he has the physical capacity to carry out his pre-termination duties.
121His Honour resolved the issue at [16]:
The Order of the Commissioner in the present case must be read against the circumstances of the pre-termination employment and the finding that the employee was not fit to do hot neck boning. When that is done, the direction to reinstate the employee "to the position in which he was employed prior to the termination of his employment" can only mean that the employee had to be given back the job that he had before termination, performing the same duties on the same terms and conditions. He was to be reinstated to do the general boning work and, in particular, the hindquarter boning work that he did before the termination. His reinstatement was not subject to any condition that he was fit to perform his pre-termination duties. An employer cannot evade the operation of a reinstatement order by making it subject to the employer's satisfaction concerning the fitness of the employee or some other condition formulated by the employer.
122Hayne J further observed in Blackadder :
"Position", when used in s 170CH(3)(a), refers to the place in the employer's commercial structure which the employee occupied before termination. It refers not only to the pay and other benefits which an employee may earn in a position, but also to the work which the person filling that position does. It follows that an employer, ordered to reinstate an employee by reappointing the employee to the position in which the employee was employed immediately before the termination, not only must recommence paying or providing the financial or other benefits attached to the position, but also must put the employee back to the performance of those duties which the employee was fulfilling before termination.
123In this case, in view of the agreement between the parties to act on the medical reports relied upon during the hearing, the question that is before the Commission for determination is whether the dismissal was harsh and although the applicant was unfit for employment in the NSW Police Force, that was the position when he was dismissed and that remains the current situation. Therefore, bearing in mind this situation, I do not consider that it is appropriate to find that it is impracticable to order reinstatement of the applicant. Although certain consequences may follow from this finding within the NSW Police Force including possible termination, because the applicant is not fit for employment, the provisions of Pt 8, Protection of injured workers from dismissal of the Workers Compensation Act may apply (see also Australian Salaried Medical Officers' Federation (NSW) v Central Sydney Area Health Service [2005] NSWIRComm 339; (2005) 147 IR 56 and the discussion of the majority, Wright J President and O'Neill C; Staunton J dissenting, of the definition of "injured worker"), or dismissal on some other basis, as Kirby J observed in Blackadder at [34]:
I agree with Callinan and Heydon JJ [43] that Moore J in the Full Court of the Federal Court gave the correct analysis of what might happen in the future if the appellant were unable, or unwilling, to perform the work of his former position as a boner in the chilled boning room (or such other work as was later assigned to him) [44]. The purpose of a reinstatement order is to ensure that the employee in question is placed in the status quo ante [45]. It is not to anticipate every eventuality that might thereafter arise; nor is it to provide the employee the subject of it with employment for life. What happens in the future, and what follows from what happens, depends on all the circumstances then obtaining.
124The status quo ante (position prior to the decision to terminate) should therefore prevail. The appropriate order is that the applicant is reinstated.
125I will hear the parties in respect of what orders, if any, should be made in respect of continuity of service (s 89(4)). If the parties are content to have this issue determined on the provision of written submissions, the parties have leave to approach my associate in this respect. Such leave should be exercised within seven days of the date of this decision.