Australian Salaried Medical Officers' Federation (NSW) v Central Sydney Area Health Service

The application for reinstatement 13The applicant had reached the rank of Senior Constable. The respondent cited two reasons for the loss of confidence in the applicant, being that: (i) the applicant used unreasonable force upon Mr Orey Travalos on 10 June 2006. (ii) the applicant wilfully disobeyed a lawful direction. 14The respondent is empowered by s 181D(1) of the Police Act to remove a police officer from the NSW Police Force. Section 181D(1) provides: The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. 15The nature of the process and review provided by Div 1C of the Police Act of a decision of the Commissioner of Police by this Commission is now well settled: see Hosemans v Commissioner of Police [2004] NSWIRComm 253; (2004) 138 IR 159; Commissioner of Police v Dobbie [2006] NSWIRComm 285; (2006) 157 IR 44; Flanagan v Commissioner of Police [2008] NSWIRComm 138; (2008) 180 IR 85 at [21] - [22]; Commissioner of Police v Sewell [2008] NSWIRComm 147; (2008) 180 IR 91; Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 420; Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2; (2010) 192 IR 363. In the matter of Hosemans v Commissioner of Police (at [134]), the Full Bench stated that in undertaking a review, the correct approach is that the Commission is "to make a fresh and independent review decision itself, based on the material before the Commissioner as well as any new evidence admitted." 16Section 181F(1) requires me to consider three matters. It provides: In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. 17Section 181F(2) provides: The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. 18Section 181F(3) provides: Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)). 19The amended application sought:

1. Review of the Respondent's Order to terminate his employment pursuant to Section 181D(1).
2. In lieu of the Respondent's Order pursuant to section 181D, the Court order pursuant to section 72A of the Police Act that the Applicant be caused to be retired.
3. Reinstatement of the Applicant's employment with the New South Wales Police Force on the following terms and conditions: (i) The Applicant's employment be reinstated from the date of the Commissioner's Order on 19 November 2008. (ii) That the Respondent give effect to the Applicant's WorkCover Certificates provided to the Respondent or its agent since 25 July 2007.
4. An order pursuant to Section 181E that the order made by the Respondent pursuant to Section 181D was harsh, unreasonable or unjust.
5. Costs. 20Mr T Edwards of counsel appeared for the applicant. Both counsel acknowledged that the majority of facts were not in dispute. The differences were confined to the behaviour of Mr Travalos immediately prior to the use of the Oleoresin Capsicum Defensive spray ("OC spray") and in relation to one line of dialogue between the applicant and Ms Kristy Hawkins. 21In his statement of reasons, the respondent cited two grounds for the removal of the applicant from the NSW Police Force. The reasons for the Order were in the following terms: I am required to make a determination under section 181D(1) of the Police Act 1990 , in respect of whether I have confidence in you as a member of the New South Wales Police Force. In making the determination, and in accordance with the relevant legislation, I have taken into account the grounds set out in my Notice pursuant to section 181D(3)(a) of the Police Act 1990 , together with the evidence contained in the supporting documentation, which were served on you on 19 August 2008. The grounds set out in my Notice to you refer to your conduct. I have also taken into account your written submission in response to the grounds set out in my Notice which was provided to me by your legal representative. I have given careful consideration to all the material that has been presented to me in this matter, and I provide the following reasons for my determination: Ground 1: Unreasonable use of force upon Mr Orey Travalos on 10 June 2006 On 10 June 2006, a community event was held in Lemon Tree Passage. At about 8:30 pm, Mr Orey Travalos, a 17 year old, yelled abuse towards Senior Constable David Collier and Constable Ian Glew, who were performing highway patrol duties. He was arrested for offensive language. During the arrest, Mr Travalos was wrestled to the ground, handcuffed and put in the back of a police truck. You witnessed the struggle, and assisted the other officers in putting Mr Travalos into the truck. Mr Travalos had his hands handcuffed behind his back. Mr Travalos yelled and shouted and kicked inside the truck. He accepts that he was " pretty drunk ". He admits he had been " schitzing up ", " starting to mouth off ", and swearing. He says he was " flipping out a bit " in the truck and admits he " booted " the inside of the truck about four times. Constable Kelly Scott and Senior Constable Kristy Hawkins were also nearby. Constable Scott says that Mr Travalos was " banging his feet and yelling and screaming " inside the truck but says that he then " settled down a little bit ". Senior Constable Hawkins says she heard Mr Travalos kick violently once inside the truck. She says he thrashed around, but only for a couple of minutes. Constable Scott says that, after Mr Travalos had " settled down a little bit ", you asked her to open the door to the truck. She says that, prior to this, the inside of the truck was " pretty quiet... he settled right down. He wasn't making the same racket as what he was a few minutes earlier than that ". She says she does not recall any yelling or screaming after the door was opened. She says she saw you step forward, but then lost sight of you for a moment as she stepped back. She says she then saw you use your OC spray and saw the liquid hitting Mr Travalos in the face. She says that she thought the use of the spray was " unnecessary " and says that even though the juvenile was " kicking around initially and making noise and yelling, he'd actually stopped making that noise, he'd actually stopped ". Senior Constable Hawkins says that, at the time the truck door was opened, Mr Travalos had calmed down. Senior Constable Hawkins says that she saw you step towards the open door of the truck and saw Mr Travalos sitting on the seat at the rear of the truck, with his hands to his rear (apparently still handcuffed). She says she heard you say something to him but did not hear what was said. She says she saw you activate the spray and saw the spray hit Mr Travalos in the face. She says she does not believe it was necessary for you to have sprayed Mr Travalos because " he was handcuffed, he was confined in the truck and no longer a problem or a threat. " Mr Travalos says that, when you opened the door, he was " sitting there ". He says he had calmed down and that he knew he couldn't get out. He says that when you opened the truck door " you looked like you had a bit of a smile on your face and you just went, bang, just sprayed me right in the eyes ." You claim that Mr Travalos was banging violently inside the truck. I understand that you claim that you were concerned for Mr Travalos' welfare, since you knew he was handcuffed. However, you have stated that " that a means to protect his life and his wellbeing was to deploy spray " You claim that what happened was as follows: "I opened the door. And Travalos at that point was still carrying on in the back of the truck. I had an OC spray out its, [sic] carrier before I approached the, [sic] side of the truck, in preparation for, to reassess as I got there basically ...I've opened the door up ... I put myself into that opening and Travalos has kicked out with this thrashing like movement that he had been, I assume he'd been doing to make the sounds that l heard in the back of the truck. With that I pulled my canister out and I give him a short burst." You have also claimed that Mr Travalos kicked out " in my general direction ". You have also claimed that you used the spray " for my welfare as well as his own, for my protection and his protection ." You have also asserted that you used the spray to control Mr Travalos' behaviour, to stop him injuring himself and causing damage to the police vehicle. However, other witnesses state that Mr Travalos was not in a position that would allow him to kick at you: Senior Constable Hawkins says that, when the door opened, she saw Mr Travalos' legs stretched out in front of him. She says that, due to the angle he was sitting, it would have been a " very awkward manoeuvre " for him to kick at you, and says that she did not see Mr Travalos kick at you. Constable Scott denies that Mr Travalos kicked at you. She says she could see most of Mr Travalos' body throughout the time the door was open. She says that she did not see Mr Travalos move his legs or motion to kick you in any way. She says that he was sitting in the rear of the caged area. She saw his legs stretched out in front of him and his hands cuffed behind his back. She says that he did not manoeuvre himself to enable a kicking motion. Mr Travalos also denies that he kicked you. He says he did not say or do anything to you before you sprayed him. You accept you have received regular training on the use of OC spray and that you are aware of the directions and instructions on how to use it. On 11 February 2008 you were charged with Common Assault pursuant to section 61 of the Crimes Act 1900. On 12 August 2008 at Newcastle Local Court, Magistrate Truscott found the charge of `Common Assault' against you proven. On 18 September 2008 you were fined $300 and $73 court costs. In your response to my Notice, I note that you state you have lodged an appeal in the District Court against this conviction. Your actions are in breach the NSW Police Force Code of Conduct and Ethics, the NSW Police Force Handbook, the requirements of the School of Operational Safety & Tactics, Oleoresin Capsicum Defensive Spray and the Constables (Investigators) Pocket Guide. The NSW Police Force Code of Conduct and Ethics - Statement of Values (as in force at the relevant time) provided: Each member of the NSW Police is to act in a manner which: ... Upholds the rule of law Preserves the rights and freedoms of individuals ... Ensures authority is exercised responsibly. The NSW Police Force Code of Conduct and Ethics (as in force at the relevant time) also provided: If you fail to comply with this code or any other lawful directive, you will be asked to explain your actions. Should your conduct be contrary to the code's requirements, you might be subject to a range of managerial actions under the Employee Management Scheme, up to removal from the Service. The NSW Police Handbook and the Constables (Investigators) Pocket Guide (as in force at the relevant time) stated: Use defensive sprays only for: protection of human life a less than lethal option for controlling people where violent resistance or confrontation occurs (or is likely to occur) protection against animals. NB: OC defensive spray is only one of several options/courses of action available to you . Certain factors/situations might need another tactical option. Some situations could call for more than one option to be used at the same time. Duty of care When you spray someone with OC spray, seek medical assistance from ambulance or hospital casualty staff, as a matter of course. The Oleoresin Capsicum (OC) Defensive Spray, School of Operational Safety & Tactics booklet (as in force at the relevant time) stated: Use defensive sprays only for: protection of human life a less than lethal option for controlling people where violent resistance or confrontation occurs (or is likely to occur) protection against animals.

In your response to my Notice, I note that you were diagnosed with Post Traumatic Stress Disorder in 2003 and still suffer from this disorder. I have taken this into consideration and have read the medical reports in support of this. Ground 2: Wilfully disobey a lawful direction You have admitted that, on 10 June 2006, and following the incident involving Mr Travalos, you were directed by Chief Inspector McPhee not to discuss the matter with any of the witnesses or persons involved. Senior Constable Hawkins states that, later on 10 June 2006, you called her mobile phone several times. She says she did not answer. She says that you then approached her at Raymond Terrace Police station and said words to the effect of " Can I just have a chat? ... I just want to make sure you're OK with that job up there ". She says that she told you that she had been directed not to speak about the incident. She says you continued to press her to answer. You have admitted that you spoke with Senior Constable Hawkins about the incident to find out what had happened to Mr Travalos, although you assert that Senior Constable Hawkins refused to speak with you. Senior Constable Hawkins says that, on 13 June 2006, you again approached her at Maitland police station and asked to speak outside about a separate matter. She says that, once outside, you said " Just want to make sure you're cool with what happened the other night ." She says she repeated that she could not talk about the incident. She alleges that you then said " You just have to say what you saw ... as a team we must have a degree of trust... I just want to make sure it's nothing personal ." She says she assured you it was nothing personal and walked back inside the station. It appears that she made contemporaneous notes in her notebook of the conversation. You have admitted that you spoke to Senior Constable Hawkins on 13 June 2006, but claim that it was not about " the dealings with Travalos ". I note that you state, in your response to my Notice, that you were unaware that Senior Constable Hawkins was the complainant and that you were enquiring to her welfare, more so than any potential complaint. I also note that again you state your psychological state contributed to your actions, in that you needed to talk to another officer concerning the incident. In your response to my Notice you state you are remorseful of your actions and again, can put it only down to the paranoia and anxiety associated with your Post Traumatic Stress Disorder, however, I note that this remorse only appears to have been expressed after the conclusion of the investigation. Regardless of these reasons, in the circumstances, your actions still indicate that you wilfully disobeyed a lawful direction from Chief Inspector McPhee. Your actions have breached the NSW Police Force Code of Conduct and Ethics and the Police Regulation 2000 . The NSW Police Force Code of Conduct and Ethics - Statement of Values (as in force at the relevant time) provided: Each member of the NSW Police is to act in a manner which: ... Places integrity above all The NSW Police Force Code of Conduct and Ethics (as in force at the relevant time) also provided: If you fail to comply with this code or any other lawful directive, you will be asked to explain your actions. Should your conduct be contrary to the code's requirements, you might be subject to a range of managerial actions under the Employee Management Scheme, up to removal from the Service. Regulation 9(1) of the Police Regulation 2000 (as in force at the relevant time) also provides: Police officers are to ... promptly comply with all lawful orders from those in authority over them.

In your response to my Notice, you state that suffering from Post Traumatic Stress Disorder has impacted on your actions, and as stated earlier, I have read and taken the supplied medical reports into consideration. In your response to my Notice you assert that during the court hearing several of your colleagues provide character references in support of you. You also state that on several occasions the Prosecution were required to make application to treat their own witnesses as hostile, as their evidence was very much in favour of you, your actions and character. I have read and reviewed the court transcripts of the hearing. However, on my analysis, contrary to your assertion, I note that only two of the officers, Senior Constable Bannister and Inspector McPhee, provide evidence of character upon questioning. Additionally, only two of the three applications by the Prosecution in regards to unfavourable evidence by two witnesses were successful, and on cross examination, one of these witnesses (Senior Constable Collier) conceded the kicking could have stopped prior to the spray being administered. I have carefully reviewed all of the material associated with this matter and see no additional mitigation or reason for your actions that would provide me with any basis not to lose confidence in your suitability to remain a police officer. I want you to understand that my finding of your actions when dealing with Mr Travalos, that being the use of your OC Spray upon him, while he was handcuffed in the rear of the police vehicle, was inappropriate and unreasonable. However, I find the second ground even more serious, where you disobeyed a reasonable direction to not discuss the matter with any of the witnesses or persons involved, but consciously attempted to speak to Senior Constable Hawkins on more than one occasion. I expect and the law demands that New South Wales police officers will uphold their Solemn Oath of Office at all times. Our Oath requires all New South Wales police officers will act: professionally at all times; with ethics and integrity; and in accordance with the law. This is our sworn duty. I want you to clearly understand; and I cannot stress too strongly, that I expect an appropriate standard of behaviour from all police officers and I expect them to adhere to the expectations of ethical and professional conduct, whether it is on or off duty. You have clearly breached the New South Wales Police Code of Conduct and Ethics. I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force. I therefore remove you from your position as a police officer.

Applicant's response to show cause notice 22The applicant's solicitors, Harris Wheeler Lawyers, forwarded a letter dated 28 October 2008 in response to the respondent's Show Cause Notice of 14 August 2008. This letter informed the respondent that an appeal had been lodged in the District Court of New South Wales appealing the conviction for common assault in the Local Court. The applicant disputed the classification of the event on 10 June 2008 as a community carnival. It was also contended that the Show Cause Notice had only considered evidence that favoured a conclusion that the applicant was unsuitable to continue performing his duties as a police officer. The applicant referred to the protocols regarding the use of OC spray. He contended that the Notice failed to take into account the applicant's psychological injury and that he had been diagnosed as suffering from Post Traumatic Stress Disorder ("PTSD"), prior to the incident which was supported by medical evidence provided to the respondent. In response to the second ground, the applicant also relied upon his medical condition, but admitted the misconduct.

Applicant's employment history 23Mr Edwards provided the Commission with a chronology of relevant events commencing in 1996 when the applicant was attested, and concluding with his conviction for common assault being quashed in the District Court in April 2009. 24Counsel read three affidavits of the applicant sworn 10 February 2010, 5 and 9 June 2010, together with affidavits of Brett Godfrey sworn 10 February 2010 and Joshua Pimm sworn 8 February 2010 . Counsel also tendered the following material: (i) the respondent's Order pursuant to s 181D(1) of the Police Act dated 19 November 2008; (ii) tender bundle; (iii) judgment of Frearson DCJ; (iv) letter and annexures from NSW Police Service HealthQuest Liaison to HealthQuest dated 11 March 2008; and (v) plan of police van. 25The applicant was attested as a Constable on 19 May 1996. He was promoted to Senior Constable on 10 August 2001. He also completed 552.5 hours relieving as a Target Action Group and General Duties Sergeant throughout 2006 and 2007. During 2007, the applicant spent six months performing "A" list duties in the Lower Hunter Local Area Command Detectives office as well as performing duties as a Street Level Operative for the Undercover Branch. 26In or around August 2001, the applicant completed his tenure in the Hunter Region Target Action Group and was then stationed at Beresfield Police Station within the Lower Hunter LAC. During his time at Beresfield Police Station, the applicant began to feel on edge at work. He described feeling anxious at work and had a fear of violence towards himself. He was not aware at the time that these feelings were related to a psychiatric condition. 27The applicant began to drink alcohol off duty in an attempt to overcome his work anxiety. He also took extensive sick leave as he felt he was becoming increasingly anxious about violent confrontations. His fears and anxieties escalated after a violent incident on 25 April 2002. In a report dated 16 July 2004, Dr DL Brash, the applicant's psychiatrist, detailed two incidents that the applicant had described to him. The first incident occurred in April 2002 when the applicant and a fellow officer were attacked by a group of three men at Beresfield. The other officer was injured and it was some time before backup arrived. The applicant said he felt he was in real danger of being seriously injured. The second incident occurred when the applicant was off duty. A neighbour had become angry and abusive for no apparent reason and the applicant had to subdue and arrest him. Dr Brash was unclear when this incident occurred however the applicant in his affidavit said it took place on 9 September 2003. He said the neighbour threatened the applicant and his family and said that he would burn the applicant's house down. In his affidavit, the applicant said that after these incidents he felt anxious and depressed and began consuming more alcohol. 28As a result of his anxieties, the applicant obtained a transfer to Maitland Police Station. However, he felt the transfer provided little relief as he continued to be exposed to violence. His symptoms continued to increase. He began having bad dreams and found it difficult to sleep. He would wake up during the night sweating and screaming or crying. 29Following the incident with his neighbour, the applicant became unwell. He saw his general practitioner, Dr SA Hashmi, who diagnosed that the applicant was suffering from PTSD and prescribed medication. 30The applicant contacted the Employee Assistance Program ("EAP") of the NSW Police Force and was referred to a counsellor, Ms Barbara Aldrich. He was then referred to a psychiatrist, Dr Brash. The applicant was on sick leave from September 2003, returning to work in January 2004. He returned to non-frontline duties which involved conducting firearm audits in the Lower Hunter LAC. He negotiated a position working in the Lower Hunter Target Action Group ("TAG"). He returned to general duties where he relieved as a Sergeant in 2006 and commenced "A" list duties in 2007. 31In 2005, the applicant commenced proceedings in the New South Wales Workers Compensation Commission. He claimed weekly benefits pursuant to s 38 of the Workers Compensation Act 1987 (" Workers Compensation Act " ) . In the proceedings he relied on the report of Dr Brash dated 16 July 2004. On 6 May 2005, the matter was settled and a Certificate of Determination was issued. The applicant was re-credited 40 hours of sick leave. 32After his return to work, the applicant again consulted Dr Brash. Although at this time the applicant's symptoms of anxiety, fear of losing control, dwelling on past incidents and anticipating the worst in terms of future incidents, experiencing nightmares and irritability had subsided, Dr Brash diagnosed that the applicant was suffering from PTSD and that his alcohol abuse had been a continuing factor. A copy of Dr Brash's report dated 16 July 2004 was annexed to the affidavit. 33The applicant continued to feel on edge. He had a low tolerance for violence, which he said he knew related to his PTSD. He spoke to Detective Sergeant Burnell, a colleague, who encouraged the applicant to take sick leave. On 25 July 2007, Dr Hashmi provided the applicant with a WorkCover Medical Certificate. Annexed to his affidavit were WorkCover Medical Certificates dated 20 August 2007 and 10 October 2007. 34The applicant was referred to a psychiatrist, Dr WD Wade, whom he saw on 10 September 2007. He began treatment with a psychologist, Dr R Peters, from 3 August 2007. In his report dated 30 October 2007, Dr Wade considered the applicant to be "totally and permanently incapacitated for work as an operational police officer" and advised medical retirement. In his report dated 25 October 2007, Dr Peters also concluded the applicant should be medically retired. A copy of each report was annexed to the applicant's affidavit. On 14 May 2008, the applicant was required by the respondent to be examined and assessed by Dr R Kaplan of HealthQuest. In a report dated 20 June 2008, Dr Kaplan determined the applicant had a partial permanent disability because of an Adjustment Disorder with Depression and Chronic Anxiety. He further determined that, "Whilst it does not appear that Senior Constable Ross could perform Operational Police duties, it has been anticipated that he may be able to successfully undertake some carefully chosen administrative duties within the Police Force." The applicant appealed the HealthQuest report. In a letter signed by Dr Ian Gardner, Chairman HealthQuest Appeals Committee, dated 13 October 2009, the HealthQuest Appeals Committee upheld the appeal and stated that the applicant was "permanently unfit to return to your substantive position or any other position with the NSW Police."

First ground for dismissal 35The first ground relied upon by the respondent for removal of the applicant was "Unreasonable use of force upon Mr Orey Travalos on 10 June 2006". 36On 10 June 2006, a community carnival took place at Lemon Tree Passage, which is near Port Stephens in New South Wales. In the previous year, attendees at the carnival had become violent. In 2006, Operation Viking was set up by the Lower Hunter LAC in an attempt to prevent a recurrence of violence from the previous year. The applicant was on duty at the carnival with approximately 10 other police officers. Prior to attending the carnival, officers were briefed at Raymond Terrace Police Station. The applicant recalled speaking to Ms Kristy Hawkins at the briefing. At the time Ms Hawkins held the rank of Senior Constable. She was assigned to Beresfield Police Station. She has since been medically discharged from the NSW Police Force. During the briefing, the applicant informed her that he was returning to Beresfield Police Station, to which she replied, "You seem to get everything you want." Ms Hawkins could not recall such a conversation taking place. She stated in her affidavit that at the time she got along well with the applicant and would have welcomed additional staff at the Beresfield Police Station. 37After the briefing, the applicant attended the carnival at Lemon Tree Passage and conducted foot and vehicle patrols. A group of youths began throwing glass bottles at the applicant and other police officers. The applicant suggested to Sergeant Bradley Elloy, the senior officer on duty, that the Operational Support Group should be called for assistance as the officers were largely outnumbered. No assistance was called. 38At approximately 8.00 pm on 10 June 2006, Mr Orey Travalos, then aged 17, was arrested by Constable Ian Glew and other police officers. The applicant described Mr Travalos as a "large male". It took three police officers to subdue and arrest Mr Travalos. He was forced to the ground and handcuffed with his hands behind his back. Mr Travalos was arrested for using offensive language and placed in the back cage of a police vehicle. The applicant described Mr Travalos thrashing about in the rear of the police vehicle and yelling at the police. Mr Travalos, during his oral evidence, agreed that he had been jumping side to side and up and down in the back of the police vehicle. He said he was kicking at the door of the vehicle for approximately 15 minutes. The applicant said Mr Travalos was yelling to be let out of the cage and using offensive language which "made the crowd's intensity increase and they began shouting and I could sense from my years of training and experience the situation was escalating." 39The applicant stated he heard extremely loud banging inside the cage area of the police vehicle. In cross-examination, the applicant said the movement of Mr Travalos inside the vehicle caused the entire vehicle to rock violently. He believed Mr Travalos was using his head to hit the rear of the cage so he decided to assess him and considered the use of OC spray to subdue him. The applicant instructed Senior Constable Kelly Scott to open the door to the cage which was located at the rear of the passenger's side of the vehicle. He said Mr Travalos was still banging and thrashing around with his legs. As the door was opened, Mr Travalos kicked out with his left foot about knee height at the applicant. The applicant sprayed a short burst of OC spray in the direction of Mr Travalos' head then closed the cage door. The applicant agreed he had the OC spray out of its holder when the cage door was opened. 40Both Ms Hawkins and Senior Constable Scott gave evidence that Mr Travalos had calmed down and had stopped thrashing around by the time Senior Constable Scott opened the door of the cage at the applicant's request. Each denied Mr Travalos kicked out at the applicant. Ms Hawkins described Mr Travalos as sitting in the cage with his legs straight out in front of him. She believed it would have been a very awkward manoeuvre for him to kick at the applicant whilst his hands were handcuffed behind his back. Mr Travalos was not asked in cross-examination whether he kicked out at the applicant or not. In cross-examination, Senior Constable Scott said there was a definite break of a few minutes between Mr Travalos quietening down and her opening the cage door. Mr Travalos said he had stopped kicking and jumping around by the time Senior Constable Scott had opened the cage door. He described himself as being "too buggered to keep going." His evidence was that he had been sitting down for approximately 5 to 10 minutes before the door was opened. He disagreed with Mr Edwards' suggestion that he had continued to kick and thrash around until the door was opened. 41In cross-examination, the applicant's evidence was that he administered a one second spray of OC spray to Mr Travalos. He was unsure if Mr Travalos had been facing forward when he used the spray. The applicant said he originally missed him with the spray and sprayed the side of the police vehicle. He then turned the spray onto Mr Travalos. Mr Travalos said he was facing forward when the applicant sprayed him and that the spraying lasted three to five seconds. He described the sensation as "living hell". He said that he was sprayed straight in the face and it went down his throat, up his nose and in his eyes. As his hands were handcuffed behind his back, Mr Travalos tried to wipe the OC spray out of his eyes using his shoulders. 42Not long after Mr Travalos was sprayed, another youth was arrested and placed in the rear of the same police vehicle. The crowd dispersed soon after. Mr Travalos and the other youth were taken by Ms Hawkins and Senior Constable Scott to a Service Station at Paul's Corner at Salt Ash to be decontaminated. They then drove Mr Travalos and the other youth to their homes in Raymond Terrace.

Second ground for dismissal 43The second ground relied upon by the respondent was "Wilfully disobey a lawful direction". The applicant admitted this ground. 44On 10 June 2006, following the incident at Lemon Tree Passage, the applicant was directed by Chief Inspector McPhee not to discuss the matter with any of the witnesses or persons involved in the incident. 45On 13 June 2006, the applicant approached Ms Hawkins at Maitland Police Station. The applicant's evidence was that he recalled saying words to the effect, "How are you going?" She replied, "I can't talk to you, you know." He replied, "Yeah I know that. I'm good thanks." He then said, "Can I have a word to you outside?" to which she replied, "Jamie, we can't talk about it." He said, "Yeah, not about that." While they were outside Maitland Police Station, the applicant's evidence was that he said to Ms Hawkins, "I just want to make sure you are cool with what happened the other night." She said, "I've told you I have been told not to talk about it." The applicant replied, "I have spoken to the boss earlier and he's cool with everything." She replied, "Yeah ok." He said, "You just have to say what you saw." She said, "I know that Jamie but I can't talk to you about it." 46Ms Hawkins recorded the conversation she had with the applicant in her official police notebook. Her notes of the conversation, with one exception, were consistent with the evidence of the applicant. A copy of the extract from her notebook was tendered in the proceedings. It recorded that Senior Constable Hamilton was present when the conversation with the applicant occurred. In his statement of reasons, the respondent noted that Ms Hawkins alleged that the applicant said to her, "as a team we must have a degree of trust." The applicant denies saying this although it was recorded in Ms Hawkins' notebook. In cross-examination, he said he never used that language and that he doesn't speak like that. 47The applicant's evidence was that he discussed the incident with Ms Hawkins because he noticed that she was emotionally distressed. He was concerned that she disapproved of his actions in using the OC spray on Mr Travalos. He said he was anxious and concerned that she would make a complaint. The applicant said it had not been his intention to prevent Ms Hawkins from making a complaint or influence her perception of events. 48Mr Edwards submitted that Ms Hawkins' evidence should not be preferred as it was, to some degree, coloured by her emotions. 49The applicant acknowledged that he contravened the order given by Chief Inspector McPhee. In cross-examination, he said he should have treated the direction from Chief Inspector McPhee with more respect and should have obeyed his order. Mr Edwards submitted that the breach of the direction should not warrant such drastic consequences as a dismissal.

Criminal proceedings 50The applicant was charged with common assault under s 61 of the Crimes Act 1900 on 11 February 2008 and convicted by Magistrate Truscott. A copy of the Magistrate's Decision dated 12 August 2008 was included in the material provided during the proceedings. The applicant's conviction was quashed by Frearson DCJ: In the matter of an appeal of Jamie Andrew Ross (unreported 16 April 2009). A copy of his Honour's judgment was provided in the proceedings. 51The respondent proceeded to determine this matter whilst the applicant's appeal was pending in the District Court. Mr Edwards submitted that the respondent failed to consider the outcome of the District Court appeal before exercising his discretion to dismiss the applicant.

Applicant's evidence 52In addition to the applicant, Mr Edwards called Mr Brett Godfrey and Mr Joshua Pimm to give evidence. Both Mr Godfrey and Mr Pimm were medically discharged from the NSW Police Force. Mr Godfrey was a former detective assigned to the Lower Hunter LAC. He was in charge of the original investigation into the incident involving the applicant and Mr Travalos and reported to Detective Constable White. 53In his Investigator's Report, Detective Constable White relevantly found in regards to the "Unreasonable Use of Force" issue that "Considering the evidence, Senior Constable Ross appears to have acted in accordance with the directions of the Police Service handbook relating to the use of OC Spray. No information that suggests that Senior Constable Ross acted other than for the protection of Travalos has been disclosed." In regards to the "Disobey Reasonable Direction" issue, Detective Constable White found "There is insufficient information to warrant action against Senior Constable Ross for this issue. Senior Constable Hawkins has recorded she refused to speak with Senior Constable Ross about the incident with Travalos. Senior Constable Ross, in the electronically recorded interview, states he was speaking with Senior Constable Hawkins about the result of the event rather than then [sic] spraying incident of Travalos." Mr Godfrey agreed with these findings. 54In cross-examination, Mr Godfrey emphasised that his relationship with the applicant was purely as his supervisor. He never socialised with the applicant outside of work hours and since his medical discharge, had only seen the applicant on one occasion at the applicant's solicitor's office. He said that he had never let his personal feelings or beliefs get in the way of an investigation. 55Mr Godfrey said that the applicant did not wish to participate in a criminal interview. This led Mr Godfrey to conduct a "directed interview" which he explained during cross-examination: Q: If you had chosen to proceed by way of directed interview you, as an experienced investigator, were already making a decision already that it was only a complaint and not a criminal matter, weren't you? A: As I said he was, I believe - if my memory serves me correctly - he was offered an opportunity to participate in a criminal interview, which he declined. He wasn't going to answer any questions. As such we then proceeded to a directed interview. 56Mr Pimm was a former operational safety trainer with the NSW Police Force. He was medically discharged in October 2009. Mr Pimm's evidence was that generally, in his opinion, a one second burst of OC spray would be appropriate to subdue a person. This was dependant upon whether a threat of violence continued or not. He agreed that decontamination after being sprayed should occur as soon as practicable. He disagreed with Mr Skinner's suggestion that being sprayed with OC spray was very painful. During his cross-examination, Mr Pimm gave the following evidence: Q: What would you say about the reason was [that] of giving a person a three-second burst from about a metre away straight in their face? A: It's fine. Q: In the back of the van with their handcuffs behind them? A: Possibly. Q: 17 year old not known otherwise to police - not as a local criminal or anything? A: Depends on the circumstances. Q: This young man's in the back of the vehicle, you have got the photos there, it's a confined space, his hands are cuffed behind him, three-second burst in the face; do you say that could possibly be reasonable just for the fact he was kicking the inside the van? A: I have used a full eight-second burst on someone. Q: In what situation? A: Not in this exact circumstance, but some people just don't react to the OC spray as other people would. It's a situation where different people are affected differently by the OC spray. It's the same as anything, you may be able to eat a hot chilli whereas I cannot. 57Mr Pimm said there was no embargo on spraying prisoners in vans. Ms Hawkins and Senior Constable Scott conceded as much. Mr Skinner submitted that Mr Pimm's evidence would not assist the Commission as he had a one-sided view of events and every case depends on its own circumstances.

Respondent's evidence 58Counsel for the respondent called Ms Hawkins, Senior Constable Scott and Mr Travalos to give evidence. 59Mr Skinner tendered the following documents: (i) two volumes of evidence; (ii) four colour photographs of a police vehicle similar to the one used at the incident; (iii) three colour photographs of the backseat of a police vehicle and two additional photographs; (iv) affidavit of Senior Constable Kelly Scott sworn 21 May 2010; (v) affidavit of Kristy Ann Hawkins sworn 21 May 2010; (vi) an extract from Kristy Hawkins' official police notebook; (vii) record of interview and sketch plan; and (viii) reasons for decision of Magistrate Truscott, Newcastle Local Court. 60In written and oral submissions, Mr Skinner submitted that the respondent's findings were well justified and that the consequent removal, even taking into account the applicant's medical condition at the time, was not harsh, unreasonable or unjust within the meaning of s 181E(1) of the Police Act . 61Included in the respondent's evidence were written statements from Mrs Helen McGee and Mr Reginald McGee both dated 19 September 2006. Mr and Mrs McGee witnessed the arrest of Mr Travalos and saw him being placed in the police vehicle. Mrs McGee described his behaviour as "extremely aggressive and violent" and said she was "shocked by the noise he was making inside the truck." She said that after a while the rocking stopped and "the male settled down". She was unaware as to why he settled down. In his statement, Mr McGee said the kicking from inside the police vehicle sounded like Mr Travalos was demolishing it from the inside. He said, "I am of the opinion that the male must have had his back against one wall of the truck and was kicking into the other side with his feet. The truck was rocking so much that I said to Helen 'He'll have very sore feet in the morning.'" Mr McGee said the kicking continued in the truck until after a short period of time he settled down. Mr McGee was unsure why. Mr Skinner conceded that less weight should be accorded to this evidence than the evidence of those witnesses who were subjected to cross-examination.

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.

Order 126I make the following orders:

1. The applicant's removal under s 181D(1) of the Police Act 1990 was harsh.
2. The applicant is reinstated to the NSW Police Force.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 July 2011