Bennett v Commissioner of Police

WORDS AND PHRASES - meaning of "reasonable offer", "suitable position" and "reasonably practical" - Crown Employees (Police Officers Death and Disability) Award 2005

Crown Employees (Police Officers Death and Disability) Award 2005, cl 9.2, cl 9.3.2 Factories Act 1961 s 59( 1), s 65 Housing and Planning Act 1996, s 14(3) Industrial Relations Act 1996, Pt 2, Ch 7, s 365, s 370 LEGISLATION CITED: Police Act 1990, s 8(3) Police Regulations 2000, cl 9(2) Public Sector Employment and Management Act 2002 Safety Rehabilitation and Compensation Act 1988 (Cth), Section 19(3), s 4(1) Workers Compensation Act 1985 (Vic), s 5 Workers Compensation Act 1987

Australian Timber Workers' Union v W Angliss & Co Pty Ltd (1924) 19 CAR 172 Australian Workers Union v Grazier's Association (NSW) (1939) 40 CAR 494 Broughton v London and North Eastern Railway Co [1930] 1 KB 578 Bryce and anor v Apperley (1998) 82 IR 448 Byrne v Australian Airlines Ltd (1955) 185 CLR 410 Cass v State, 124 Tex.Cr.R. 208, 61 S.W. 2d 500 Cepus v Heggies Transport Pty Ltd (1993) 52 IR 123 City of Wanneroo v Holmes [1989] 30 IR 363 at 378-379 Codelfa Constructions Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 348 Comcare v Chenhall (1996) 139 ALR 380 Daniels v Ford Motor Co. [1955] 1 W.L.R. 76 Edwards v National Coal Board [1949] 1 KB 704 Eyre v Haughton Main Colliery Co Ltd [1919] 1 KB 695 Fazlic v Milingimbi Community Inc (1982) 150 CLR 345 FreightCorp v Duncan [2000] NSWCA (309) Geo A Bond & Co Ltd (in Liq) v McKenzie [1929] AR(NSW) 490-530. Hawkesbury Dairy and Ice Society Ltd v Ryan (1932) AR(NSW) 237 Hines v Workcover/HIH (Transfer Maintenance Pty Ltd) Corporation [2000] SAWCT 171 Hyatt Regency Adelaide v Pratt (2007) 164 IR 310 at [30] Johnson v Chubb Security Australia Pty Ltd (1998) 16 NSWCCR 549 M38238/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 Marshall v Gotham Co Ltd [1954] 1 All ER 937 CASES CITED: McCarthy v Daily Mirror Newspapers [1949] 1 All E.R. 801 McDonald v North Coast Area Health Service [2001] NSWCCPD 50 Opera House Investment Pty Ltd v Devon Buildings Pty Ltd (1936) 55 CLR 110 Perisher Blue Pty Ltd v Australian Workers Union (1999) 91 IR 274 at 283 Police Association of NSW (o/b Clifton) v NSW Police Force [2009] NSWIRComm 197 Police Association of NSW (o/b Gulbis) v Commissioner of Police [2008] NSWIRComm 187 R v Brent London Borough Council, ex parte Omar (1991) 23 H.L.R. 446 R v Tower Hamlets Long Borough, ex parte Subhan Abdul (1992) 24 H.L.R. 541 Re Clothing Trades Award (1950) 68 CAR 597 Royal Botanic Gardens & Domain Trust v South Sydney City Council (2002) 186 ALR 289 at [10] Samuels v BT Australasia Pty Ltd (2007) 168 IR 231 South Eastern & Sydney Illawarra Area Health Service v HSU (2007) 165 IR 43 at 30 Stimson v NSW Police Service [2008] NSWIRComm 196 The City of Wanneroo v Australian Municipal Administrative Clerical and Services Union (2006) 153 IR 426 The King v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128 Uebergang v v Australian Wheat Board (1980) 145 CLR 266 Victoria (Department of Sustainability and Environment) v Rattray (2006) 154 IR 346 Westen v Union Des Assurances De Paris (1996) 88 IR 259 Western Australian Government/Australian Liquor Hospitality and Miscellaneous Union (ALHMWU) Redeployment, Retraining and Redundancy (Interim) Award 1994 (1996) 69 IR 279 Clause 8 Williams v The Queen (1986) 161 CLR 278 Workers Rehabilitation & Compensation Corporation v James (1992) 57 SASR 365 Workers Rehabilitation and Compensation Act 1986 Zoological Parks Board of New South Wales v Australian Workers Union (2004) 135 IR 56

HEARING DATES: 7 December 2009, 8 December 2009

Mr T Edwards of counsel (Applicant) Adams Leyland Lawyers LEGAL REPRESENTATIVES:

Mr A Britt of counsel (Respondent) Blake Dawson

Application by Michelle Bennett under s 365 of the Industrial Relations Act 1996

1 Between May 1997 and January 2007 Ms Michelle Bennett was employed as a police officer and in December 2006, whilst in that capacity, was covered by the provisions of the newly made Crown Employees (Police Officers Death and Disability) Award 2005 ("the award"). In June 2000, during the course of her employment as a police officer, Ms Bennett suffered an injury to her right ankle but continued to perform general duties. In November 2004, because the injury had not fully resolved, she was placed on restricted duties. In October 2005 Ms Bennett underwent surgery on her right foot and ankle but ultimately, this procedure did not allow her to return to full duties. In December 2005 she was advised by the Local Area Command of their decision to seek her medical discharge from the Police Service. In late February 2006 a formal application for medical discharge was forwarded to the Medical Discharge Unit. In June 2006 Health Quest found Ms Bennet unfit for her substantive position due to the unpredictable exacerbations of her right ankle although she was fit for alternative duties. Ms Bennett's Local Area Command determined that there were no restricted duties positions available and over time a number of positions outside her region were put forward but were unacceptable to Ms Bennett for personal, family and business reasons. During October 2006 there were discussions with Ms Bennett about filling the position of Intelligence Officer within her region but Ms Bennett, having had some short experience with the position, regarded it as unsuitable and otherwise a job that she could not properly perform and so rejected an offer of employment in that position. On 5 December 2006 Health Quest recommended that Ms Bennett be discharged from the Police Force, determining that she was permanently unfit for the substantive requirement for her position as a former police officer. Ms Bennett's employment was duly terminated and she was discharged from her position as a police officer and 22 December 2006 was her last day of service. 2 As a consequence of those events Ms Bennett commenced proceedings in this Court pursuant to the provisions of s 365 of the Industrial Relations Act 1996 claiming that the New South Wales Police were obliged to pay her a lump sum as a police officer who suffered partial and permanent disability under the Rehabilitation, Retraining and Lump Sum Payments provisions of the Award, calculated pursuant to a formula contained within the Award. Ms Bennett's application to this Court sought the payment of a sum in excess of $370,000 although, during the course of the proceedings it was accepted that, on the proper application of the award formula, if the New South Wales Police were liable to pay the benefit, the payout would be a larger figure than that claimed in the Application. 3 Against this brief background it is appropriate to set out the relevant provisions of the Death and Disability Award as well as the policies referred to in the Award and those referred to by the parties during the proceedings. The relevant provisions of the Award are as follows: 1.1 This Award shall be known as the "Crown Employees (Police Officers Death and Disability) Award 2005". 1.2 The intentions and commitments of this Award are to: 1.2.1 Provide benefits on medical discharge in the event that an on duty or off duty injury results in the death or total and permanent disablement or partial and permanent disability of a police officer.

1.2.2 Provide rehabilitation and retraining in the event that an on duty or off duty injury, results in a police officer suffering partial and permanent disability.

1.2.3 Develop and implement an agreed WellCheck Program for police officers.

3 . Definitions "normal duties" means performing the duties for which the police officer has been principally employed", including restricted duties for the purposes of subclauses 4.3, 4.4 and 4.5.

"on duty injury" in relation to a police officer means, injury to a police officer in such circumstances as would, if the police officer were a worker within the meaning of the Workers Compensation Act 1987, entitle the police officer to compensation under the terms and provisions of that Act. ... partial and permanent disability" means the police officer's cessation of employment was substantially due, directly or indirectly, to the permanent physical or mental disability of the police officer (not caused by any act or default of the police officer intended to produce an injury leading to that disability) and that the police officer is, when the police officer ceases to be employed by NSW Police, permanently unable, by reason of that disability, to perform the duties that the police officer was required to perform before the police officer suffered the disability. ... "salary", means for Non-Commissioned Officers the base salary as prescribed by the Crown Employees (Police Officers 2005) Award plus 17%. For Commissioned Officers means remuneration as prescribed by the Crown Employees (Police Officers 2005) Award.

5. Contribution By Officers 5.1 Police officers who are eligible for coverage under this Award, subject to subclauses 5.2, 5.3 and 5.4, shall contribute 1.8 per cent of their salary to NSW Police. 5.2 Police officers who are contributors to SASS but who do not contribute to SASS for additional benefit cover shall contribute 1.8 per cent of their salary to NSW Police.

5.3 Police officers who are contributors to SASS and who contribute for additional benefit cover and who elect to relinquish that cover shall contribute 1.8 per cent of their salary to NSW Police. 5.4 Police officers who: 5.4.1 are co-contributors to SASS; and 5.4.2 contribute to SASS for additional benefit cover; and 5.4.3 elect not to relinquish that additional benefit cover will contribute 0.88% of their salary to NSW Police and will be entitled to receive the benefits prescribed by this award in relation to partial and permanent incapacity. The only benefits prescribed by this award to which the police officer shall be entitled are the benefits applicable in relation to partial and permanent incapacity. 5.5 The contributions prescribed by this Award in relation to police officers who are contributors to SASS are additional to the contributions that they are required to make under the State Authorities Superannuation Act 1987. 5.6 Notwithstanding the provisions of the Crown Employees (Police Officers - 2005) Award, a police officer who is required or elects to make contributions pursuant to this clause will do so by sacrificing an amount of unearned salary equivalent to the police officer's contribution pursuant to this clause, unless they elect to contribute in a different manner. Such salary sacrifice shall not be taken into account for the purpose of calculating the remuneration that the police officer would have received in the event that no salary sacrifice had been applicable.

8. Police Officers - Lump Sum Payments for "Off Duty" Death and Total and Permanent Disablement 8.1 Police officers who contribute under clause 4 shall be entitled to a lump sum payment in accordance with the scale set out in clause 8.3 in the event that an off duty injury results in their death or total and permanent disablement. 8.2 For the purposes of this sub-clause, a police officer's age shall be his/her age at the time of his/her death or at the date that he/she ceases to be employed by the NSW Police or at such earlier date as may be determined by the parties in accordance with clause 10.6. 8.3 Entitlements under clause 8.1 in the event of a police officer's death will be paid to the deceased's estate. Age Lump Sum $ Less than 61 years of age 250,000 At age 61 to less than 62 years of age 200,000 At age 62 to less than 63 years of age 150,000 At age 63 to less than 64 years of age 100,000 At age 64 to less than 65 years of age 50,000

8.4 The Lump Sum amounts prescribed by sub clause 8.3 shall be increased accordance with increases in salaries prescribed by the Crown Employees (Police Officers 2005) Award to take effect from 1 July each year as follows: 4% July 2006 4% July 2007 4% July 2008 4% July 2009

9. Rehabilitation, Retraining and Lump Sum Payments for Police Officers Who Suffer Partial and Permanent Disability 9.1 The lump sum payments prescribed by this clause are payable by NSW Police. In order to be entitled to a benefit pursuant to this Clause, a police officer must engage in the provisions outlined within this Clause. 9.2 There is a mutual obligation on both the employer and injured officer to identify suitable police positions for redeployment. However, it is the injured officer's responsibility to accept a reasonable offer of a suitable police position made by the employer, which may include transfer to another location. A failure to accept one of three (3) reasonable offers as per the Permanent Restricted Duties Policy of a suitable police position will jeopardize any benefits or entitlements payable under this award and may result in medical discharge. 9.3 A police officer who suffers an on duty injury shall receive rehabilitation/retraining consistent with agreed policies, which are annexed to this award, leading to a return to pre-injury employment wherever possible. 9.3.1 Where a return to pre-injury employment is not possible, as determined by HealthQuest, or other medical assessor agreed by the parties, the officer will be declared as suffering a partial and permanent disability and opportunities for placement in a suitable police position or as a permanent restricted duties police officer will be sought. At the same time, the police officer, with their consent, will be considered for redeployment to an administrative officer position. 9.3.2 If placement in a police position within the NSW Police is not possible and redeployment to an administrative officer position is not agreed to by the officer, the employment of the police officer may be terminated. In such circumstances the police officer, subject to eligibility being established, shall be paid a lump sum payment in accordance with Annexure B to this Award. 9.4 A police officer who suffers an off duty injury shall receive rehabilitation/retraining consistent with agreed policies, leading to a return to pre-injury employment wherever possible. No direct medical or rehabilitation costs will be met by NSW Police for off duty injuries. 9.4.1 Where a return to pre-injury employment is not possible as determined by HealthQuest, or other medical assessor agreed by the parties, the officer will be declared as suffering a partial and permanent disability and opportunities for placement in a suitable police position or as a permanent restricted duties police officer will be sought. At the same time, the police officer, with their consent, will be considered for redeployment to an administrative officer position. 9.4.2 If placement in a police position is not possible and redeployment to a administrative officer position within the NSW Police is not agreed to by the officer, the employment of the police officer may be terminated and, in such circumstances, the police officer shall be paid a lump sum payment equivalent to the unexpired portion of the two years full salary or full salary to age 60 (whichever is the lesser). The two year period commences when medical evidence indicates that an officer is not able to return to their pre-injury employment. 9.5 The objective of the rehabilitation/retraining program creates mutual obligations, which is for every police officer who suffers partial and permanent disability to be placed in a suitable police position within NSW Police, wherever reasonably practical. 9.6 An adequate opportunity will be given to the police officer concerned and the Association (unless the police officer expressly declines to agree to the Association being informed) to consider the NSW Police opinion that no suitable position is available and to put that opinion into dispute in accordance with the dispute resolution clause of this Award prior to medical discharge. 4 It will be noted that cl 9.2 of the Award refers to a failure to accept one of three reasonable offers of transfer to suitable police positions for redeployment in accordance with the provisions of the Permanent Restricted Duties Policy. The relevant provisions of that policy are as follows:

Permanent Restricted Duties Policy INTRODUCTION The Commissioner's Executive Team (CET) has considered a number of strategies aimed at improving the organisation's management of long-term sick leave. As part of its deliberations, CET has strongly re-affirmed its commitment to ensuring that all reasonable steps are taken to rehabilitate injured staff back to their pre-injury employment. However, it has also committed the organisation to providing suitable alternate duties for police officers who are no longer able to perform operational duties whenever this is reasonably practical. The purpose of this document is to provide a broad policy framework to facilitate the placement of permanently restricted police into suitable positions and hopefully, career paths. ... This policy shall only apply to officers after the provisions of the Rehabilitation Policy and Return to Work Plan have been complied with in accordance with relevant legislation. Officers can only be considered for permanent restricted duties when medical evidence indicates permanent incapacity. ... HIGH VISIBILITY POLICING The foregoing Policy Statement is not intended to dilute the organisation's operational response capacity. NSW Police remains committed to its high visibility strategies and officers redeployed as a result of the Restricted Duties Policy will be expected to fulfil roles that continue to enhance operational effectiveness. AVAILABILITY OF DUTY TYPES While it is recognised that, wherever possible, police need to be able to perform full operational duties, there are a number of duty types within the organisation that, potentially, can be offered to limited numbers of officers with permanent medical conditions. Each case needs to be considered on its individual merits and an officer's skills, qualifications, aptitude and medical restrictions must all be taken into account when consideration is given to their suitability for placement on restricted duties. The specific operational requirements of individual Commands also need to be given equal priority. Subject to the foregoing qualifications, the following list of duty types and Commands is intended to provide a guide to the range of positions and locations in which restricted duties officers might be considered for placement. It should be stressed that the following list is intended to be descriptive rather than definitive and should only be used as a guide to the range of opportunities that may be available to restricted duties officers within the organisation: Administration Health Services Analyst Positions Intelligence Audit Group Internal Witness Support Unit Aviation Support Legal Services Brief Managers Prosecutors Communications Court Process Officers Crime Prevention Brief Handlers etc Education Services Licensing · Teachers Maintenance Unit, Water Police · Supervisors etc P.A.L Employee Management Branch Personnel Exhibits Public Affairs External Agencies Response Unit Police Operations Centre Forensic Services STAR L.A.C. - SCOCOs Training Workforce and Careers Youth Clubs & Young Liaison It is recognised that some officers who have not previously undertaken the types of duties set out above may need to undertake specialist, or on the job, training to adequately equip them to perform these roles. As part of its legislative obligations for staff injured in the course of their employment, the organisation is committed to providing reasonable opportunities for this to take place. It is recognised that there are a number of specific roles that need to be performed at each LAC that might also, potentially, provide opportunities for the placement of restricted duties officers. It is recognised that the needs of individual Commands will vary and that many officers on restricted duties may not be suitable for placement in these roles due to the limitations created by their infirmities as well as the particular demands of these types of duties. However, it may be possible to offer meaningful work to an injured officer through their placement in one of these specialist positions or through their employment as a support officer to staff occupying these positions. Final placement decision will need to be determined on a case by case basis and will need to be agreed to by all relevant Stakeholders. However, when giving consideration to the placement of restricted duties officers in Local Area Commands, the following positions might be considered:

Brief Managers Crime Prevention Officers DVLOs EDOs Exhibits Intelligence Officers Rosters Youth Liaison Officers MUTUAL OBLIGATION There is a mutual obligation on both the employer and injured officer to identify possible suitable positions for redeployment.

However, it is the injured officer's responsibility to accept any reasonable offer made by the employer which may include transfer to another location. A failure to accept a reasonable offer of a suitable position may jeopardise workers compensation entitlements and may result in medical discharge. DISTRIBUTION OF PERMANENT RESTRICTED DUTIES OFFICERS To ensure that the High Visibility Policing Policy is not compromised, as a general guideline, the total number of restricted duties officers in individual Commands will be limited. For instance, on average, to no more than five restricted duties officers per Local Area Command. Across the State there is potential for permanently restricted staff to perform functions that would otherwise have to be performed by fully operational police. ...

Local Area Commands It should be noted that the figure five (5) is not absolute as it clearly depends on other factors such as availability of authorise positions, size, location and individual circumstances of each LAC. ...

MEDICAL DISCHARGE ENTITLEMENTS The legislative entitlements of injured police wishing to apply for a medical discharge will not be affected by the Restricted Duties Policy. Officers will still be able to apply for a medical discharged if they believe they are unable to continue to perform the role of a police officer, even if in a restricted capacity.

SALARIES AND ALLOWANCES Restricted duties officers will be offered alternate duties at their existing ranks and at their existing locations. However, this may not be possible depending on the availability of suitable positions already at their place of work. If no suitable duties are available at the current place of attachment, consideration will be given to the officer's transfer to another location at the same rank. However, normal award provisions, including those of salary and allowances, will apply. ...

TRANSFER TO ADMINISTRATIVE OFFICER POSITIONS In order to maximise the opportunities to secure suitable alternative employment for permanently injured police officers, the Police Act has been amended to facilitate the transfer of police officers to administrative officer positions with the officer's consent. Affected officers can be transferred to an administrative position within NSW Police subject to the availability of suitable positions. ... CO-ORDINATION OF THE PLACEMENT OF RESTRICTED DUTIES OFFICERS Co-ordination of the placement of restricted duties officers is managed by the Restricted Duties Co-ordination Unit (RDCU) which is attached to the Health Services Directorate. The Units is tasked with: · promulgating the Restricted Duties Policy throughout the organisation; · liaising with Region Return to Work Co-ordinators to ensure that officers being considered for medical discharge against their wishes are referred to the Unit before the discharge application is acted upon; · negotiating the placement of suitable restricted duties police with relevant Commanders; · ensuring that ongoing protocols for the management and placement of permanently restricted officers are adhered to. Region Return to Work Co-ordinators will make all reasonable efforts to return injured officers to their pre-injury employment. Once it becomes apparent that: · an officer will never be able to return to their pre-injury employment and, · the officer does not wish to be medically discharged the Commander/Return to Work Co-ordinator will refer the case to the RDCU. On receipt of a referral, the RDCU will interview the officer and explain the restricted duties options available to them. Subject to the outcome of this initial review, the Unit will: · make all reasonable efforts to place the officer in a suitable position (in one of the duty types set out earlier in this document either at their own Command or other location. For a minimum period of 3 months, subject to officers receiving reasonable offers of employment; · if this is not possible, refer the officer if he/she wishes to the Redeployment Officer, Workforce & Careers to seek employment as an administrative officer. For a period of 12 months, subject to an officer receiving and accepting reasonable offers of employment; · if the first two options fail, refer the officer to his/her Commander for medical discharge consideration. ... CONCLUSION The introduction of the Restricted Duties Policy heralds a new era in the management of officers who are unfortunate enough to experience protracted periods of ill health or injury. NSW Police is committed to ensuring that all reasonable steps are taken to facilitate the placement of permanently injured police officers into suitable duties wherever practical. Such action not only maximises the potential of individual members of staff, but also ensures that the expertise of such officers is not lost to the organisation. Implementation of the Policy will require goodwill by all affected parties. However, it is hoped that it will lead to improved efficiencies in the management of long term sick leave and a reduction in the number of officers seeking to disengage from the organisation on health grounds. 5 In the presentation of the case by the parties it was said that the following provisions of the Police Act 1990 were relevant: Section 8 Commissioner to manage and control NSW Police Force (1) The Commissioner is, subject to the direction of the Minister, responsible for the management and control of the NSW Police Force. (2) The responsibility of the Commissioner includes the effective, efficient and economical management of the functions and activities of the NSW Police Force. (3) The Commissioner may classify the various duties that members of the NSW Police Force are required to perform and allocate the duties to be carried out by each such member. (4) The Commissioner may issue (and from time to time amend or revoke) instructions to members of the NSW Police Force with respect to the management and control of the NSW Police Force. with the exercise of the functions of the NSW Police Force. ... (5) This section is subject to the other provisions of this Act and the regulations. Section 69 Transfer of non-executive police officers (1) If the Commissioner considers it to be in the interests of the NSW Police Force to do so, the Commissioner may transfer a non-executive police officer from one non-executive police officer position to another non-executive police officer position or non-executive administrative officer position. ... (4) A transfer under this section may be made only if the officer possesses the qualifications determined by the Commissioner for the other position. (5) The transfer under this section of a police officer to a non-executive administrative officer position may not be made without the approval of the police officer. (6) Section 66 does not apply to a transfer under this section. (Note: Section 66 deals with appointments to be made on merit and provides that in deciding to appoint a person to a vacant position (other than by way of promotion) in relation to a non-executive police officer the Commissioner must, from amongst the applicants eligible for appointment) select the applicant it has, in the opinion of the Commissioner, the greatest merit. 6 Aspects of the Police Transfer and Tenure Policy were also said to be of relevance to the present proceedings. The following extracts of that lengthy document deal with the matters of immediate relevance to the present claim:

TRANSFER AND TENURE POLICY 1. Introduction This Policy governs the relocation and transfer of NSW Police personnel. The Policy applies to Non-Executive Commissioned and Non-Commissioned Police Officers. ... The cornerstone of the Transfer and Tenure Policy is the responsibility of the Commissioner of Police to provide an adequate policing service to the community of NSW. The Commissioner is therefore granted a statutory power to deploy personnel across the State to meet the needs of the NSW community. Officers must recognise that personal preferences, while taken into account, may not always be achievable and the interests of the NSW community will be given priority.

The transfer of an employee will be considered in light of the Commissioner's Statement and the Transfer Principles as set out at Sections 3.1 and 3.2 respectively. 3. Management Guidelines 1. Commissioner's Statement The office of Commissioner carries a legislative responsibility under Section 8 of the Police Act 1990 to provide effective, efficient and economical management of the functions and activities of the NSW Police. A delegation has been provided from the Commissioner to Commanders granting the authority to approve transfers and it is therefore incumbent upon Commanders when considering a transfer to: a. examine the broader organisational needs in light of operational contingencies; b. consider the experience levels of locations and the skill level of the officer; c. regularly conduct Integrity Risk Assessments within the Command. These Integrity Risk Assessments are to form part of the evaluation when an officer is considered for transfer; d. both the receiving and relinquishing Commanders involved in the transfer of an officer should discuss the Integrity risk Assessment pertinent to that officer. e. both Commanders should agree to the transfer taking place in light of that discussion; f. process a transfer form within 28 days of receiving a request for transfer; g. consider the transfer principles as set out in 3.2 of this Policy and apply them where appropriate to the transfer in question. All officers are reminded that their employment carries an undertaking to serve anywhere in the State. 2. Transfers Principles The following principles are to be taken into account when the transfer of an officer is considered: a. the tenure of the officer being transferred; b. NSW Police interests including effective and efficient service delivery within individual Commands; c. training and development provided to the officer in the current place of attachment and a return on that investment; d. a balance of experience levels across Commands; e. equity in approach where transfers are dealt with consistently. Unusual circumstances are dealt with on a case-by-case basis; f. provisions of opportunities for employees to follow careers paths within desirable locations and sought after duty types; g. the nature of duties and the work environment of employees, particulars those who are exposed to: i. duties which present a potentiality for corruption ( See Section 3.10 ); ii. duties which create a stressful work environment ( See Section 3.10 ); iii duties which present greater danger than usual. ( See Section 3.10 ); iv. areas of limited career development/opportunity; v. duties at isolated and Special Remote Locations ( See Section 8.5 ). h. Officers, when considering their own deployment options need to consider: i. the need to enhance their skills and experiences by facing new challenges; ii. the career opportunities and benefits available in various locations and phases of duty; iii. their preferred career paths, family, carer and lifestyle needs; iv. the undertaking provided by staff that they will perform service anywhere in the State. 5. Review of Transfer Decision an individual officer may seek a review of a transfer decision by submitting a report through the chain of Command to: a. their LAC/Specialist Commander in the first instance; b. their Region HR Manager; c. the Director Workforce and Careers; d. the Executive Directors Human Resource Services. The Director, Workforce and Careers determines disputed transfer or reviews of a transfer decision. The factors considered by the Director, Workforce and Careers in determining the legitimacy of a transfer are set out at Section 6 (Disputed Transfers) in Part II of this Policy - Transfer Administrative Procedures. 6. Management Initiated Transfer A management Initiated Transfer is where a Commander wishes to move an officer to meet operational needs or to better deploy experience. A Management Initiated Transfer may be on a permanent or temporary basis. 7. Management Transfer - Performance Situations may occur where officers are transferred as a result of concern about conduct or work performance. This is not a normal circumstances and most minor misconduct and poor work performance issues must be resolved at the originating location under the provisions of the Service's endorsed Performance Management Scheme and/or Remedial Performance Program. Commander/Managers are expected to be able to manage performance and a transfer in these circumstances is only ever used when other options are considered inappropriate and a transfer is the logical solution, eg. where an officer is subject to an internal investigation. In these circumstances, a transfer application either by the officer or management will not, in ordinary circumstances, be considered until such inquiry has been completed and unless there are exceptional circumstances. Should exceptional circumstances exist that require the movement of an officer on performance grounds, approval must be obtained. a. in cases involving a transfer within a Region or Specialist Command (Intra Region) approval must be obtained from the Region/specialist Commander in consultation with the Director, Workforce & Careers; b. where the transfer is from one Region/Specialist Command to another Region/Specialist Command (Inter Region) there must be consultation with The Director, Workforce & Careers. 4. Tenure The requirements stipulated in relation to tenure apply to all officers except those contracted as part of the Police Senior Executive Service. Therefore tenure applies to all Non-Executive Commissioned Police Officers and Non-Commissioned Officers ... 1. Minimum Tenure All officers are expected to serve at a location for three years before seeking a transfer. Exemptions to the tenure requirements may be granted for officers seeking a transfer to a Special Remote or other "Hard to Fill" location. Other exemptions to tenure apply as stipulated in this Policy. A non-tenure officer who applies for an advertised lateral vacancy, as a general rule, will not be selected for the position nor will an officer who is subject to an Additional Tenure Training Agreement (See Section 4.3). The purpose of setting a minimum period of tenure is to provide staffing continuity and stability which in turn minimises workplace disruption and staff turnover.

2. Maximum Tenure After five years' service at one location an officer may be required to transfer to a new location. There are a number of locations in NSW which find it difficult to attract staff. This may be due to the challenging nature of the work, isolation, transport options and/or the cost of housing in the location. Alternatively, NSW has a number of locations which are considered to be desirable. That is, many more officers wish to perform duty in these locations than there are vacancies available. Many of these locations are geographically located outside the Sydney Basin. ... At the expiration of minimum tenure, the transfer of a member may take place by utilising one of the following procedures: a. the officer applies for and is selected, on merit, for an advertised vacancy in another location; b. the officer applies for and is granted a lateral transfer; c. Management Initiated Transfer - the officer is laterally transferred to a vacant position in another location; d. Management Transfer - Performance - where an officer is relocated for performance/conduct or disciplinary reasons. 7 The Police Regulations 2000 and in particular cl 9(2) may be of relevance: Regulation 9(2) of the Police Regulations 2000 (as in force up to 1 September 2008) stated: In particular, a police officer is required: (a) to serve wherever the officer is duly directed, and (b) to perform such police duty as may be duly directed whether or not during the officer's rostered hours of duty

THE EVIDENCE 8 In support of her claim, Ms Bennet provided an affidavit together with a number of annexed documents dealing with the course of her medical condition and her placement on restricted duties. Her evidence also dealt with another significant issue in relation to her claim, namely, the circumstances in which she sought and was granted a transfer to Dubbo in order to join her husband in the operation of a newly opened family franchise business. The initial transfer permitted was to Wellington in December 2003 and secondly, in relation to Dubbo, in March 2004. An important part of Ms Bennett's case was that, having been permitted to transfer to Dubbo and given permission to undertake secondary employment in the business, when it came to consideration of her position on restricted duties and the positions available to her she asserted that, against this background, it was not reasonable that she be required to move beyond the region in which she was working and thus, be removed from her family and the operation of the family business. 9 It is something of an oddity that, in the voluminous material placed before the Court especially by the respondent, there are no documents covering the circumstances under which the transfer took place and the approval given. 10 In relation to the related application for approval for secondary employment, Ms Bennett said that her partner had resigned from the Police Service in October 2003 and purchased a franchise business. In between her transfer to Wellington and then her further transfer to Dubbo general duties, Ms Bennett applied for secondary employment so she could assist her husband in the business and that secondary employment was approved by Acting Superintendent Borland. The purchase of the business in Dubbo was the culmination of a decision by Ms Bennett and her husband to establish their lives in and around the Dubbo area, especially since her mother did not live far from Dubbo. In her first application for approval for secondary employment, Ms Bennett disclosed that she was an owner of the franchise and stated that the nature of the duties she would perform were the day-to-day running of the business, serving customers and dealing with wages, stock control and like matters. In relation to anticipated casual hours to be worked, Ms Bennett indicated that the work would be performed over seven days but would be performed in hours when not rostered for police duties. That application was considered and recommended and Acting Superintendent Borland accepted the recommendation. 11 Although the application for secondary employment had only recently been granted, it appears that approval in some way lapsed once Ms Bennett was placed on restricted duties in mid-November 2004. In December 2004, Ms Bennett applied for a renewal of the approval for secondary employment that had recently been given, noting that her duties were mainly serving customers, supervising staff members and carrying out accounts and management reports. In this application, Ms Bennett indicated that she needed to continue working in her business and also indicated that she would be working casually three days per week for approximately 27 hours. Ms Bennett also stated that she would be attending the secondary work duties as a director/owner of the business while she was on annual leave but annual leave would not be taken only to perform these outside duties. In December 2004 it was recommended that the secondary employment application be approved and ultimately, Acting Inspector Nash approved the application. 12 Although having twice obtained approval to perform secondary employment Ms Bennett said that, following Superintendent's Smith's appointment to Dubbo as Local Area Commander, she was investigated by the Crime Commission in relation to her secondary employment, especially in relation to an alleged failure to disclose her directorship with the company that traded as her husband's business. Ms Bennett complied with a direction to supply a memorandum in relation to that issue and was informed that no further action would be taken. However, in early 2005, Commander Smith informed her that he was withdrawing her secondary employment approval. By August 2005, Commander Smith advised Ms Bennett that he had given approval to undertake secondary employment for a period of 12 months which was granted by the Director of Human Resources Strategy and Equity. Nevertheless, on 15 December 2005 Ms Bennett was called to Commander Smith's office and told that he intended to cancel her secondary employment forthwith as she had made no progress with her ankle to enable her to return to full duties and because her secondary employment had been a contributing factor to her inability to progress the recovery of her ankle injury. After seeking the assistance of the Police Association, Ms Bennett appealed that decision and her secondary employment approval was reinstated. 13 In relation to her injured ankle and foot, Ms Bennett said that she suffered the injury in a training exercise in June 2000 and was classified as being Hurt on Duty. She had surgery on the ankle in late August 2001 and returned to general duties after a short recuperation. She stated that, for approximately four years prior to being placed on restricted duties, she carried out all her duties as a senior constable. Over that period she had approximately four days off as a result of any complaint relating to her injured ankle. She did suffer pain in her ankle and from time-to-time she sought treatment. Notwithstanding the pain she sometimes had to bear she was able to run and carry out normal duties with only a slight increase in pain from time-to-time. In May 2005 she was referred to an orthopaedic surgeon who reported that she was fit for most, but not all, of her pre-injury duties as a police officer. It was noted that Ms Bennett stated that she felt confident that she could perform all her pre-injury duties but there was concern about the effects of medication she was taking and it was thought advisable that she should not carry a weapon whilst under the effects of that medication. The orthopaedic surgeon estimated that there was a five per cent permanent loss of the efficient use of the right lower limb below the knee. In October 2005 the orthopaedic surgeon performed surgery on her ankle but by February 2006 he reported to Commander Smith that the recent surgery had not been successful in solving her difficulties and it was clear that she would have a permanent disability with a prognosis for ongoing activity related pain. The orthopaedic surgeon expressed the view that she would not regain fitness for her full-time pre-injury duties but was fit for permanently modified duties. It was noted that Ms Bennett also worked in a shop and in that occupation spent approximately 50 per cent of her time on her feet but that led to regular rest because of her ongoing symptoms. 14 As earlier indicated, prior to this surgery Ms Bennett said that between June 2000 and mid-2004 she carried out all her duties as a Senior Constable. Whilst at Wellington she did not perform regular general duties but from time-to-time did carry out general duties. In March 2004 when she was transferred to Dubbo, she had not performed substantial general duties although she did so from time-to-time but by late October 2004, she transferred to general duties. Between late October and early November 2004 Ms Bennett said she carried out normal general duties, performed all activities and had no difficulties carrying out the requirements of her office. However, on or about 4 November 2004, Commander Smith required all staff of the Orana Local Area Command to undertake an operational support training exercise. Ms Bennett had completed a similar exercise in Sydney. Before the exercise took place in Dubbo, she disclosed to Commander Smith that she had suffered a right ankle injury and had been Hurt on Duty and while she was happy to undertake the training exercise, she did not want to push herself in case there was an exacerbation of her condition. 15 When she attended for the training exercise the chief instructor prevented her from undertaking the course because of her Hurt on Duty injury. Ms Bennett noted that her previous Commander, Superintendent Borland, was aware of her injury but allowed her to continue in full and normal duties with some flexibility given from time-to-time if required to seek treatment, including physiotherapy or appointments with treating specialists. However, in early November 2004, Commander Smith placed Ms Bennett on restricted duties. In her affidavit she stated that she did not seek or wish to undertaken restricted duties as she felt she was capable of carrying out general duties. Ms Bennett stated that restricted duties required her to perform the full hours but mostly on station duties but she also undertook duties in records destruction, filing and in relation to miscellaneous properties. Those restricted duties continued until November 2006 when she ceased work. 16 Ms Bennett complained that, after being placed on restricted duties, she was relieved of her appointments (that is, her gun, handcuffs, baton and all other equipment generally issued for performing general duties) but was still called upon to provide general duties at the Station. She spoke about feeling at risk and being intimated in such circumstances and she provided examples of confrontations within the Station with which she had to contend. She felt she was working in an unsafe environment. 17 While on restricted duties she performed other work besides work in the police station. Ms Bennett worked in the roster's office located on the first floor of the police station. There she worked with civilians but there was no access for the general public. In this work she was not required to perform any general duty functions. She performed this work for two days. From time-to-time she also worked in the Detectives' office located across the road from the general police station. That office had no public access and she was not required to carry out general duties in performing these tasks. Ms Bennett noted that, at all times during the period she was placed on restricted duties, she was willing and able to return to general duties and to work on the police truck as normal. 18 Ultimately, Commander Smith met with Ms Bennett and informed her that he intended to have her medically discharged although the rehabilitation manager reminded him that not all avenues had yet been exhausted in relation to Ms Bennett's injuries. Commander Smith said he would hold off on the discharge and would await the orthopaedic surgeon's opinion and that was Ms Bennett's last chance. By the end of February 2006 Commander Smith requested the Medical Discharge Co-ordinator and Health Services to process her medical discharge. Ms Bennett noted that she neither sought nor consented to this application for discharge. At the end of June 2006, Ms Bennett attended Health Quest. In mid-August 2006 the Restricted Duties Co-ordination Unit suspended her case as no suitable vacant positions had been found for her having regard to her restricted duties requirements and that no available positions were found within her Local Area Command. In late September 2006, the Medical Discharge Review Panel deferred consideration of the application for medical discharge and recommended that Ms Bennett be offered the restricted duties role at Dubbo that she had been performing up until that time. Ms Bennett was aware that Commander Smith would not offer a permanent restricted duties position in his Command and from time-to-time had personally informed Ms Bennett of his attitude. On 5 December 2006, Health Services recommended her medical discharge. 19 Despite Commander Smith's attitude that no restricted duties position would be allowed in his region, Ms Bennett stated that she was unable and therefore unwilling to transfer out of the Orana Local Area Command and away from Dubbo because she and her husband had a successful business venture that had been operating since late 2003 and she had taken part in that business as approved secondary employment. She and her husband had a significant financial commitment to the business and it was her husband's only source of income. Further, Ms Bennett's mother lived on her own approximately one hour from Dubbo and Ms Bennett was the only person able to assist her. She regularly attended her mother who had been ill for many years and would not have been able to carry out this obligation if she had transferred to Sydney, Newcastle or Tamworth or away from Dubbo. 20 One position that was identified as suitable for Ms Bennett within the Orana region was that of Intelligence Officer. Ms Bennett had performed these duties for approximately two weeks in late August, early September 2006. She was performing these duties on a temporary basis but found the position stressful and said she was not able to manage the duties required of the office. She disliked the position because of the stress placed on her during this period. She believed the stress arose because she was not able to complete the requests of superior officers in a proper manner or in the time frame provided. She stated that there were conflicting priorities imposed upon her by superior officers who sought information in priority over everyone else and she found the conflict not only caused stress but led to her being unable to perform the job efficiently and properly. Ms Bennett said she also had difficulty in sitting and concentrating at a desk all day as she was not a person who was able to cope with office-bound work requiring constant use of a computer. She had seen the previous occupant in this position leave in circumstances where she was crying and Ms Bennett believed that person was unable to continue to perform her duties. She was aware that the Police Service had advertised the availability of this office by state-wide circulars over a period of months but there had been only one applicant for the position. 21 At the time Ms Bennet was offered this position she was four months pregnant and in due course had intended to apply for maternity leave. Towards the end of October 2006, Ms Bennett received an offer to take up the position of Intelligence Officer and not wishing to take up that position, accordingly declined. She said that she had declined the offer because of her previous experience of working in the position and had concluded that she was not "mentally capable" of undertaking the work. In late November 2006 the position was again offered to her but she again declined the offer. Prior to this she had taken sick leave as she felt unwell as a result of her pregnancy and "psychological issues". It was in these circumstances that she was not able to accept the offer of the position of Intelligence Officer. 22 In oral evidence Ms Bennett said she was now jointly operating a motel in Parkes with her partner, a business purchased in February 2008. This business was purchased shortly after the December 2007 sale of the Dubbo franchise. Ms Bennet said that, between November 2004 when she was placed on restricted duties until she ceased work in November 2006, she worked normal hours and normal rostered shift work. The majority of work was performed in the police station although for a short time she performed Exhibit and Intelligence Officer duties and some filing and records duties. For the majority of the time she performed meaningful work in the police station. 23 In relation to the duties she performed as Intelligence Officer, Ms Bennett said that there was a problem with conflicting requirements, especially from senior officers immediately wanting graphs and information on crime, with a number of officers requesting the particular information they wanted and doing so at the same time. Much of the information was on the computer and she didn't really understand the computer well enough and had no training for intelligence work: she thought it was "pretty much above" her head. Basically, she did not understand how to do the work and felt she was getting deeper and deeper into trouble and because of this she was feeling very sick every morning. There were approximately 13 or 15 officers who requested her to provide them with information. There was also some discussion about the position of Domestic Violence Officer but because she was on restricted duties, Ms Bennett did not have her appointments (including her gun) yet she felt the position would regularly place her in volatile and potentially dangerous situations. Ms Bennett was also concerned about being left alone in the police station without her appointments because in that role she was exposed to physical confrontations and abuse. This occurred when other officers left the station in what she described as a "ridiculously busy environment" that was short staffed. 24 In cross-examination Ms Bennett accepted that, when she was placed on restricted duties on 4 November 2004, she did not lose her appointments on that day but lost access to her gun as a result of the medication she was taking. Ms Bennett had performed the role of temporary Intelligence Officer for two to three weeks in response to her request for a change of work and the fact that she needed a break from station work. She accepted that not all of the thirteen or fourteen officers would be seeking crime statistics at the same time and in her role as an uninjured police officer at Dubbo, she might report to a number of different superior officers including four or five Sergeants, the Crime Co-ordinator and the Superintendent. It was part of her police work to receive instruction from any of those officers. She understood that, when she was offered the position of Intelligence Officer, she would be trained. When previously filling-in as the Intelligence Officer and although she felt she was not performing well in the role, none of the supervisors criticised or disciplined her about her work and she did not complain other than to friends that she found the position stressful. She had received assistance to perform the work from a civilian analyst who had told her that she was doing only one-fifth of the job required to be performed and the analyst had taken over some of the work. 25 When asked by counsel whether Ms Bennett actually wanted to work at Dubbo from September 2006 she said "sometimes yes, sometimes no". In explanation she said she loved the job and sometimes wanted to go back and just forget everything that had happened but on other days she could not deal with it and just wanted to get away from the job. She loved performing general duties and that was the work she was doing prior to being placed on restricted duties. She stated that she never wished to perform restricted duties but at the end of the day she could not change their mind about having to perform restricted duties. She disagreed with the proposition that, no matter what was offered to her, she did not wish to do it. By mid-November 2004 she was so unhappy she advised the Police Association that she wanted a medical discharge. 26 Ms Bennett agreed that, in the running of the franchise business in Dubbo, sometimes she would serve customers, do the wages, undertake stock control, do the accounts and occasionally prepare management reports and rosters. The wages and accounts were computerised and she used the computer in the day-to-day running of the business but that was mainly restricted to data entry, some of it being provided to her. There was nothing in her medical restrictions that prevented her from doing this work. The amount of work she performed in the business changed so that towards the end of the business she was working less. Ms Bennett had been given a direction that she was to perform paperwork only and not to spend long periods on her feet and this occurred in 2004 when she was placed on restricted duties. 27 Ms Bennett was aware of The Police Tenure and Transfer Policy document and she also knew that the Commissioner could transfer her. She was aware that assistance and support could be provided when an officer was required to transfer but by 2006 she had formed the view that she did not want to move out of Dubbo. She agreed that, if she was performing operational duties, she could be required to transfer from Dubbo and that the Commissioner could move Constables from location to location to meet operational requirements. She was broadly aware of the Restricted Duties Policy and the obligation on an officer on restricted duties to identify possible suitable positions for redeployment. She knew that officers on restricted duties would not necessarily be excluded from promotional opportunities simply because they were unable to perform operational duties. 28 Ms Bennett had been assigned to a series of welfare officers who had given her assistance. In April 2006 she had discussed with a welfare officer the possibility of obtaining a break from counter duties and had stated that, at that time, she wished to return to full duties. In June 2006 Ms Bennett was offered the opportunity to perform morning shifts of exhibit management duties, Monday - Friday if someone was on annual leave. Ms Bennett was aware that there were a significant number of officers in the region who were unable to perform full operational duties but there was only one officer who was on permanent restrictions. The remainder were on temporary restricted duties. Also, there were people who were possibly on long-term sick leave. 29 In mid-April 2006 Inspector Salt from the Redeployment Unit had provided Ms Bennet with a letter drawing attention to a number of positions, some of which had been advertised, demonstrating the diversity of positions available to officers placed on restricted duties. Ms Bennett accepted that she had not expressed interest in any of those positions nor had she asked for their job description. On approximately 1 April 2006, she had a telephone conversation with Inspector Salt in which she told him that she needed to stay in Dubbo and Inspector Salt told her that would be difficult. The Inspector told her about jobs available in Sydney. Some days later Ms Bennett provided Inspector Salt with a copy of her resume and noted that, because she and her partner operated a small business in Dubbo, she was unable to relocate to other areas. She also indicated that, ideally, she wished to return to general duties in Dubbo but had been informed that she was now placed on permanent restricted duties. Ms Bennett then expressed interest in two positions within the Dubbo Local Area Command, being Assistant Rostering Officer and Education Development Officer. Another officer filled the education position but the Assistant Rostering Officer position was not being performed by anybody. It was a role performed at other stations but there was nobody doing it at Dubbo. Ms Bennett was unaware if the rostering position had been advertised as being vacant. 30 On 9 May 2006 Ms Bennett received a further letter from Inspector Salt indicating that, at the time, there were no suitable positions available within her current Area Command and stating the unfortunate reality was that the vast majority of suitable police positions for restricted duties officers were to be found in the Greater Sydney area and in the city centre. Attached to the letter was a list of currently available positions that, subject to an informal selection process, would be available to be offered to her. Nine positions were identified with one of them coming up in the future that would be subject to a formal recruitment process. All positions were in the Sydney metropolitan or city area. Ms Bennett agreed that she did not apply for any of those positions nor did she seek further information about them. On 29 May 2006 Inspector Salt again wrote to Ms Bennett indicating that no reply had been received to his previous correspondence. He attached a further list of 12 positions that, subject to a very informal selection process, he was in a position to offer her. The list comprised of nine previously identified positions and three new positions also in the Sydney metropolitan and city area. Ms Bennett had not applied for, nor made any enquiries regarding those positions. 31 In a memorandum dated 6 June 2006, Ms Bennett forwarded a report to Inspector Salt concerning the background to her present position and indicating the duties she had been performing since being placed on restricted duties. Those duties included station duties although she was keen to return to full operational duties. She mentioned the fact that, on returning from annual leave in July 2005, she would be performing miscellaneous property duties because there was no full-time Constable in this area assisting the duty officers. In this memorandum Ms Bennett stated that she did not enjoy working in the station area on a full-time basis as she felt the environment was too stressful and she had been performing those duties for over 18 months hoping she would return to full operational duties. She mentioned that, if she could obtain a permanent restricted position at the Dubbo station, she would like to be appointed to the position of Assistant Roster Officer or Assistant Education Officer. 32 On 12 July 2006 Inspector Salt again wrote to Ms Bennett offering her two positions as a Communications Officer at either Tamworth or Newcastle. These positions had not previously been offered to her but the Inspector stated that he had offered these positions to a number of officers and that the Restricted Duties Unit only held such positions for a short period before they were offered to the workforce as a whole and if she was interested in the position she had to act quickly. Inspector Salt also provided a duty statement for these positions but Ms Bennett did not consider the positions, conceding that, although she may have been able to perform the role, she did not want the position. Ms Bennett said she did not think she had any medical reason preventing her from performing the work although she had some concerns about performing high level keyboard duties and having experience in Windows applications. She also had concerns about having to demonstrate a capacity to control multiple situations and make decisions under pressure and whether she possessed superior communication skills. She had used the Windows application with a computer while working at Dubbo. She was aware that she would be provided with training for this role but she did not consider the position because it was not in Dubbo. 33 On 21 July 2006 Inspector Salt again wrote to Ms Bennett indicating that the Unit had formally asked the Orana Command to respond to her request to be placed in the two positions she had nominated but the region was unable to offer her those positions. The letter stated that, unfortunately, at this time she must consider other locations. It was stressed that permanently restricted duty officers had to move into authorised positions and there was no provision for her to be attached to the Command as an extra or as an over-strength position. This need not always be the case and at some time in the future, positions may become available allowing her to return to that Command and accepting another position at the present time did not mean that she could not move around the organisation. Another list of positions available at the time were attached to this letter and they appeared to include positions previously identified to Ms Bennett, including the Tamworth and Newcastle positions. At the time of receiving this letter, Ms Bennett conceded that she had not applied for any of the previous positions because she did not want to move to those areas. 34 On 25 July 2006 Ms Bennett replied to Inspector Salt's letter dated 12 July 2006 concerning the Newcastle and Tamworth positions. In that letter she said that, unfortunately, at this stage she was unable to take up the offer because of "personal and financial reasons". She stated that she had been constantly searching the bulletin board but had been unsuccessful in finding a position in the Orana Area Command. She stated that she wished to remain in the Dubbo area as her partner had a successful business in Dubbo and both of them had parents living in the surrounding areas. Ms Bennett had been asked if she would consider re-deployment as an Administrative Officer but she declined that invitation. 35 On 11 August 2006 Ms Bennett again wrote to Inspector Salt stating that she was unable to relocate from the Dubbo area due to personal and financial reasons. She stated in that letter that she had lived in Dubbo for the past three years and during that time her partner of seven years had built up and was committed to a local business. As company directors they both had all their current finances tied up in the business and their financial future was said to also rely on the success of the business. The nature of the business prevented her from being relocated. There were leasing arrangements involved with the undertaking of the business relating to property and machinery as well as obligations under the franchising agreements. The business employed approximately 20 staff for which they were responsible. In addition, they both had family in the surrounding Dubbo area and had moved from Sydney to Dubbo to help out her partner's father who had since died from cancer. Ms Bennett's partner's mother was now living alone and because of her failing health, they were often required to give her assistance and Ms Bennett's mother resided close to Dubbo. She also drew attention to the fact that she was currently nine weeks' pregnant with her first child and because her partner worked seven days per week in the business, she would require her mother's assistance. For all those reasons she was unable to relocate outside the Dubbo area. 36 By letter dated 15 August 2006, Inspector Salt informed Ms Bennett that the Unit had made all reasonable enquiries and efforts to identify suitable positions to which she could be appointed but unfortunately they had not been acceptable to her. Her case had therefore been suspended by the Unit, adding however, that the file could be re-opened at any time and stating that the Inspector was confident that he could immediately place her in one of the many positions available in Sydney should she make herself available for them or should the Unit become aware of positions that met her restrictions. Her case was to be returned to the Medical Discharge Co-Ordination Unit. 37 In late October 2006, Inspector Salt informed Ms Bennett that he was able to offer her a position within her Local Area Command as Intelligence Officer. The Inspector provided her with a position description which had been modified. Four of the tasks were modified to the extent that they were subject to a risk assessment. By letter dated 24 October 2006, Ms Bennett rejected the position of Intelligence Officer in the Orana Local Area Command noting that her injury was now six years old but that following the injury, she had been able to return to full operational duties within the Eastern Beaches Local Area Command and was still performing full operational duties when transferred to Dubbo until November 2004 when she was placed on restricted duties. She stated that, during the previous two years, she not only had workplace duties restricted but had her entire lifestyle restricted. She said she was bound by restrictions with which she did not agree but was powerless to do anything about the restrictions. Those restrictions, along with the injury, had "tormented" her financially, physically and emotionally. She stated that she had endured two years of negative comments within the workplace from senior management because of the disruption her injuries had caused the Command. She stated that prior to going on annual leave (and at that time she was still on annual leave), she had undertaken the role of Intelligence Officer for a short period until it was filled. She stated that she did not enjoy this time as she disliked not only the duties but also disliked sitting behind a desk in front of the computer all day. Ms Bennett then stated: I joined the NSW Police as a full operational officer and I conducted my duties with pride. I do not wish to undertake any other duty unless it is within the capacity of a full operational position. However, the reality is that I cannot get taken off the permanent restrictions that have been placed upon me. I understand that the Command has made an effort to accommodate me, however, any position that is offered will only be in a "desk job" capacity of which I have obviously considered but I am unwilling to perform. I am seeking that I be medically discharged so that I can get on with my future. 38 In relation to the Intelligence Officer's position, Ms Bennett had assumed that the duties would be the same as she had performed in the brief period she had "filled-in" in the position. She agreed that most restricted duties positions were likely to be deskbound and she had an injured ankle, making it difficult to stand and run about. She also agreed that some of the duties did not involve data entry and the position was one in which she could have used her mind. The duties required her to conduct interviews with members of the public and other community sources to obtain information in accordance with the information management plan. In this position she was to brief and debrief police on intelligence collection requirements, including criminal informant case officers, to assist in the identification of emerging crime problems and trends, to maintain a thorough awareness of local intelligence activities, to assist the crime manager or crime co-ordinator in intelligence planning processes and to assist in the identification of high risk offenders. Ms Bennett was of the view that there were a number of other parts to the position and that the majority of the duties involved sitting behind a computer all day. She had performed four of the nominated duties of the position while briefly acting in that position and most of those duties required her to sit all day in front of a computer. She did not recall having any discussions about what the role involved before rejecting it or checking whether in fact the job involved sitting behind a computer all day. 39 Ms Bennett accepted that the job that she wanted was a return to full-time operational duties but she did not want the Intelligence Officer position. She really felt that she could not perform that role. She knew that it was unlikely that she would ever be returned to full operational duties and by the time she had written the letter dated 24 October 2006, she had reached the stage where all she wanted was a medical discharge and to put an end to the difficulties. At that time she was not enjoying the work she was doing but she loved the Police and said that she would still love to go back to work for the Police. She accepted that she could have resigned but by late October 2006, she wanted the entire process to end and could not understand why she was allowed to work on full operational duties until she arrived in Dubbo but even then continued to perform full operational duties until Commander Smith arrived. 40 In March 2006, Ms Bennett had applied for permanent restricted duties although she agreed that one of the reasons she did not want a restricted duties position was because it would impact on her secondary employment. She agreed that, by the time the Intelligence Officer position was offered to her, she was approximately four months' pregnant but that was not a reason for not accepting the position. 41 In re-examination Ms Bennett said that the Intelligence Officer work she had performed was entirely different to the type of duties she had previously performed in relation to the paper work involved. While she found that updating the information reports was easy as it involved writing the information report and disseminating it and she could do all that, she found difficultly in creating the newsletters and getting on top of the warrant lists and matters under the Young Offenders' Act because it was totally different. The newsletter was prepared in the morning and had to be cut and pasted and involved a completely different programme to have it ready for Commander Smith on his arrival so that he could read and get an overview of all the crime that had happened and "everything that was going on". Ms Bennett considered that, basically, she had mucked it up every day. The civilian analyst had to help her even though every step involved was written down for her so she could do it correctly. She had never been interviewed for the Intelligence Officer's position nor had anybody spoken to her about modifications or changes to the role to accommodate her situation. 42 In relation to the other jobs that had been identified by Inspector Salt, she was told that she had to apply for those jobs, submit a resume, be interviewed and go through the whole process of appointment. In short, she had to be the successful candidate. In relation to the Dubbo franchise business, she and her partner had loans to conduct that business which continued until the business was sold. Ms Bennett was unsure whether the loans were secured by property or by mortgage because her partner generally looked after all the financial dealings. At the end of October 2006 she said she wanted a medical discharge because the only job offered to her was the Intelligence Officer position. She had been performing station work before she was offered the Intelligence Officer's position and assumed that she would have returned to station work if she had not been offered the Intelligence Officer's job. When she performed the Intelligence Officer's job, Ms Bennett performed basic duties which did not involve any difficulty and were described as "minor". Any difficult duties were assisted by the civilian analyst, however, it was not the role of the civilian analyst to help her out. 43 In support of her case Ms Bennett also relied upon a specialist's report prepared by Dr Anthony Durrell, consultant and forensic psychiatrist. Ms Bennett presented for psychiatric assessment by Dr Durrell in mid-February 2009 and he provided a report dated 5 March 2009. Having described the nature of the ankle injury she received, Ms Bennett reported mental symptoms, including sustained periods of low mood coupled with intermittent physical lethargy, anxiety, insomnia, irritability, lowered self-esteem, guilty ideation - "not being able to play and jump around with the kids", reduced libido, reduced concentration and impaired memory. These mental symptoms typically ran a course in parallel to her ankle symptoms and disabilities. Ms Bennett described other physical symptoms that were more active in the twelve to eighteen months prior to her termination stating that, towards the end of her employment, she dreaded working and felt unable to cope with the work environment as well as feeling unsupported and being pushed into the role of Intelligence Officer which she knew was beyond her. She experienced high levels of psychological distress when she reluctantly had to take up restricted duties in November 2004. She thought that Commander Smith was determined to remove her from the job. Her secondary employment was cancelled twice by him but was reversed on review. Ms Bennett spoke of Commander Smith becoming very nasty and in the end her work became too stressful and she felt her confidence and self-esteem had reached rock bottom. 44 Dr Durrell's diagnosis was that Ms Bennett had psychopathological symptoms and signs consistent with the following DSM,IV diagnosis, namely: AXIS 1 Major depressive disorder (MDD) · mild/moderate severity; · acute or chronic course which parallels the levels of pain, disability in her right lower leg/ankle/foot; · fluctuating symptoms; · onset in the months following the failed second surgical attempt - "remember Commander Smith saying to me - well, this is your last chance at getting that injury fixed". ... Dr Slater. AXIS 11 displays a healthy range of premorbid personality traits. Sublimation of stresses through physical activity is prominent premorbidly as is a high level of somatically focussed self-esteem/self-identity in having a 'fit and fully abled body. AXIS 111 right Lower Limb permanent impairments and disabilities following work training injury 2000 In relation to specific issues raised with him, Dr Durrell confirmed that it was his psychiatric diagnostic opinion that Ms Bennett's work within the Police Service was a significant causative factor of psychiatric injury. He confirmed that Ms Bennett had a psychiatric injury which was work-caused and this psychiatric injury was present and active at the time she rejected the position of Intelligence Officer. Her psychiatric injuries were associated with cognitive dysfunction which unduly and negatively impacted on her judgement, concentration, memory and affectivity both intrapersonal and interpersonally. Dr Durrell confirmed that her psychiatric injury would not have allowed her to perform the Intelligence Officer's role in a psychologically safe manner. 45 Dr Durrell was cross-examined and stated that he examined Ms Bennett for approximately one hour. He had not examined Ms Bennett at the end of 2006 but, having regard to the level of consistency between those matters raised, he had formed a medical opinion based on the examination and history given to him in February 2009. In making his assessment, he was relying on her symptoms and what Ms Bennett told him but more importantly, as a psychiatrist, he was relying on signs he could observe. Dr Durrell said that he could sense and from his own examination could determine whether somebody had the signs of a major depressive disorder and with his training he could sense the length of time that disorder may have been present. He was aware that, from 2004, she was performing restricted duties but was able to exercise judgement and concentration in those roles but he was not aware of how much time was involved in running the business with her partner. Dr Durrell confirmed that to most people the loss of employment leads to a negative effect on their mental state and the loss of employment would not have helped her cognitive function. She had also suffered a premature birth and obviously that had an effect on her. The sale of her business could also have had an impact upon her and there could have been positive and negative effects of her move from Dubbo to Parkes with all these events occurring together in the last three months of 2006. In part, Dr Durrell had made an assessment based on what Ms Bennett had told him about the Intelligence Officer's job and also from his knowledge gained from two other patients who worked as Intelligence Officers and thereby he had some understanding of that position. Dr Durrell, however, had not seen the detailed position description modified for Ms Bennett. He assumed that the role would be the same as performed by his other patients. 46 For the respondent, Inspector Phillip Salt provided an affidavit with numerous annexures dealing with Ms Bennett's case in particular but also dealing with policy issues for the placement of police officers on permanent restricted duties. Inspector Salt was the manager of the Redeployment Unit, a part of the human resources command of the Police. He had been a member of the Police Service since 1974 and had been manager of the Unit since March 2006. He described his responsibilities in the Unit as re-deploying police officers into suitable duties. 47 The Redeployment Unit was comprised of Inspector Salt and a field officer. He described the role of the Unit as placing, in permanent restricted duty roles or suitable duties, those police officers who could no longer work in full operational policing positions due to medical conditions, injury or illness. Permanent restricted duty ("PRD") officers could only be placed into authorised police positions or roles and not administrative positions. An officer could be placed in an administrative role but only with the officer's consent. 48 Inspector Salt explained the process adopted by the Unit in making contact with an officer who had been referred to the Unit for placement into a permanent restricted duty role. The officer was asked to provide a resume setting out generic skills and competencies. There was a format for that resume which allowed it to be quickly converted to an expression of interest when a suitable position was identified. Having received the resume, the Unit looked at a list of vacant positions to try to match the officer's skills. All Constable and Senior Constable positions becoming vacant in the Police were first referred to the Unit to see if they could be used for PRD officers before the positions were referred to Human Resources for general advertising. The Unit would first try to place the officer in their Local Area Command and contact would be made with the Area Commander to ascertain the ability to accommodate a further PRD position. The Inspector said the Commanders would often tell the Unit that their Area could not support further permanently restricted officers and it was the role of the Unit to assess whether or not the Area Command really was unable to support a further PRD position. The Inspector noted that the PRD Policy, on average, stated that an Area Command can have no more than five PRD positions but that not was a set maximum and many Commands had more than five PRD positions. The number of PRD positions depended upon the size, staffing and specifics of the particular Area Command. 49 Where the Unit could not find a position at the officer's Local Area Command, the Unit would write to the officer and inform them that they needed to consider relocating. If a position or positions could be found to match the officer's skills the Unit would make the officer a formal offer of those positions. If the officer accepted a position they still had to apply for that position. The application process for a PRD officer ranged from making a formal application to having no more than a short meeting with a Commander. The process depended on the job being offered: for example, a trainee prosecutor's position would usually require the same application process as undertaken by a non-permanent restricted duty officer. 50 If an officer was placed in a PRD position they became known as a "permanently placed officer" but that description did not mean that the officer was obliged to remain in that position forever. Inspector Salt kept a data base of all permanently placed officers and if a position came across his desk that was suitable for those officers, he would notify them of the position description and suggest they apply as the position may offer an opportunity to move from their current PRD position or to move location. 51 Inspector Salt dealt with the course of the Unit's attempts to place Ms Bennett in a PRD position and noted that, while he was trying to place her at Dubbo, she had told him that she could not move from Dubbo because she had personal commitments in the area and her partner had his business in Dubbo. The Commander of the Orana Local Area Command, Superintendent Smith, and the Local Area Manager, Ms Seaton, informed the Inspector that the Area Command could not place her in a permanent position in a non-operational role. The Inspector informed Ms Bennett of the result of those enquiries and told her that she would need to consider relocating and had offered her various positions in Sydney and then regional positions of Communications Officer in Tamworth and Newcastle. Ms Bennett did not accept or pursue any of those offers. In August 2006, after Ms Bennett failed to pursue the offers made to her, Inspector Salt then suspended her application. Suspending the application meant that he no longer actively sought further positions for her but nevertheless, all vacant suitable positions remained open for Ms Bennett to accept. If suitable positions had come to his attention, particularly in her geographical location, he would have immediately offered those positions to her. 52 At the end of September 2006 Ms Bennett's file was referred back to the Unit. At approximately that time, the Unit received an email from Ms Seaton informing them that the Orana Local Area Command had decided to offer Ms Bennett the role of Intelligence Officer. The Inspector offered Ms Bennett that position on a number of occasions and urged her to accept it but each time she rejected the offer even though Inspector Salt asked her to reconsider her decision. The Inspector saw this position as Ms Bennett's final opportunity to remain with the Police within her current geographic location. Inspector Salt was of the opinion the Intelligence Officer position would have been a good PRD role for Ms Bennett as it would not only have provided her with a way to remain in the Police but it was a critical position in the Police as it supported operational police officers. It was a role offering significant career opportunities for officers to move up in rank, around the organisation geographically and into other roles. After Ms Bennett rejected the Intelligence Officer's position offer, the Inspector suspended her application for placement in a PRD position. 53 Inspector Salt dealt with the flow of correspondence and contact with Ms Bennett during the course of attempting to place her in a position. The first written contact appears to be a letter dated 18 February 2006 where the role of the Unit was explained to Ms Bennett and a request made that she supply a resume. She was encouraged to make her own enquiries regarding suitable positions. Attached to that letter was a list of available positions and that list was supplied for Ms Bennett's information and as "a sample of positions available at this time". At the bottom of this list the following words appeared in bolded type: "The main point of this list is to demonstrate the diversity of positions available". A file note recorded that, on 1 May 2006, Ms Bennett responded to the initial letter and discussed the form of the resume and undertook to prepare such a document and send it to the Unit. She indicated that she was seeing other specialists and trying to get back to full duties and that she needed to stay in Dubbo. Inspector Salt indicated that would be difficult and outlined some of the diverse and challenging positions available in Sydney. Some days later Ms Bennett's supplied her resume dated 4 May 2006. Much of the correspondence passing between Inspector Salt and Ms Bennett was dealt with in Ms Bennett's cross-examination. 54 In cross-examination, Inspector Salt accepted that the first letter he sent to Ms Bennett was to make contact, explain the role of the Unit and to request her resume. The list of positions attached were not offers but were attached to give her an idea of the diversity and geographic locations of positions available. When Inspector Salt gradually became aware of the extent of Ms Bennett's ties in Dubbo and her reasons for staying in that area and concern in the way the Unit operated, he explained to her that the first avenues explored were positions within the substantive command of the person to be placed on PRD. He agreed that his enquiry of Commander Smith produced a result that he was not very happy with, being a letter of 13 June 2006 informing the Unit that there were no PRD positions available in his Command. The letter from Commander Smith was in the following terms: The case of Senior Constable Bennett began around 2 years ago with the refusal by this officer to undertake mandatory training. It was then the Command learned the officer in fact was carrying a permanent injury. Since that time we have sent the officer to around 6 specialists, including orthopaedic surgeons, pain clinics, general practitioners and nerve specialists. Despite our best efforts we have not been successful in returning her to an operational status. During this time the officer engaged in secondary employment which included preparing chicken and running a lucrative business with her partner. We objected to this secondary employment on the grounds it was not conducive to her return to operational duties. We advised your section some time ago to start working with the officer to find her a restricted duties position elsewhere as this Command, with present staffing numbers not meeting workload, cannot afford to have an officer not fit for operational duties. I am aware that she had declined every position offered to her and other than her partner she has no ties to this area. We are presently in negotiations with the association branch to utilise CMU and other staff to conduct mental health escorts and other duties to alleviate some of this workload. Secondly, all CMU staff work in the Gordon Estate which is an aboriginal community of 4000 people. Last year alone there were 102 public order related incidents where 54 Police were injured. This is not likely to decrease and a necessity that staff are operational. My position is there is no PRD position available for this officer. Please process her discharge as she already has alternate meaningful work available to her in her secondary employment already and had every intention of pursuing that career. 55 It was put to Inspector Salt that the response from Commander Smith indicated that he wanted Ms Bennett's discharge so that it would not upset his numbers in Local Command. The Inspector replied that most Local Area Commands were driven by local police officers and in fairness there were very few who sought to place PRD officers. As set out in his own correspondence, Inspector Salt took the contrary view and his role was to place PRD officers. He agreed that he was disappointed with Commander Smith's response as it was not to Inspector Salt's satisfaction or assisted in fulfilling his role of placing injured workers. However, he did note that the placement was entirely up to the Local Area Command. 56 An officer placed on PRD became a non-operational officer and was not permitted to have their appointments and were not allowed to perform police operational work. The function of the Unit was to attempt to find positions that did not require officers to perform operational duties. Inspector Salt said that the key word was to try to "accommodate"; he tried to find duties, accommodating an officer's injuries. The Policy indicated that the final decision however was with the Commander or the manager of the Local Area. 57 Having received Commander Smith's letter dated 13 June 2006, Inspector Salt replied on 3 July 2006 in the following terms: I strongly urge you to reconsider your position in relation to this matter. We have received your report on the abovementioned subject officer. I have read that report, several times. I would describe your response as both unique and courageous. Whilst I am sure this is not the case, not what you meant to say, respectfully, on reading this report it gives the impression not only of a lack of understanding but a total disregard for industrial, corporate and human resources/human relations issues of this organisation. Respectfully I must stress that your comments contained in that report are totally contrary to and indeed an abrogation of: · your industrial responsibilities under the Crown Employees (Police Officers Death and Disability) Award 2005; · your corporate responsibility under the Permanent Restricted Duties policy and at odds with · your responsibility to your staff. Your duty of care to them and compassion for them and > how your handling of this matter will impact upon your staff right across the Command. We have, you have a corporate responsibility to offer this officer "suitable police positions".` This unit has been working to place the abovementioned officer into a Permanent Restricted Duties Position. It would be my submission that your Command, if not the only, would be one of only a very small number of Commands that has a very limited number of restricted duties officers. Indeed that was the purpose of my report - to ascertain exactly what the position is within your Command at this time in relation to PERMANENTLY restricted Duties officers placed in accordance with the Permanent Restricted Duties Policy. Corporately we have both a responsibility and "legislative" obligation to place restricted duties officers but more importantly to support officers in this situation. The spirit of the Permanent Restricted Duties Policy is: When identifying positions for restricted duties officers the Command to which they are attached will be the first avenue investigated and the status of the positions mentioned in the policy should be reviewed. There will be a "presumption" that the restricted duties officer be considered for any vacant position within that Command. Every Command and Commander has an equal, albeit proportional responsibility to place restricted duty staff and will be expected to demonstrate that commitment . An "ambit assertion" that "all officers must be operational" will not, on its own, be sufficient. FURTHER Clause 9.2 of the Crown Employees (Police Officers Death and Disability) Award 2005 is applicable in this case placing an OBLIGATION on the organisation to place this officer. That clause says: "There is a mutual obligation on both the employer and injured officer to identify suitable police positions for deployment. However, it is the injured officer's responsibility to accept a reasonable offer of a suitable police position made by the employer which may include transfer to another location. A failure to accept one of three (3) reasonable offers as per the Permanent Restricted Duties Policy of a suitable police position will jeopardise any benefits or entitlements payable under this award and may result in medical discharge". Given that your Command has a very limited number of officers in restricted duty positions is it unreasonable that you not make a serious and genuine attempt to offer a place to this officer in a "suitable police position". You should be aware that: · figures in relation to the placement of restricted duties officers have recently been requested and supplied for review as part of the OCR process; · should this officer proceed to medical discharge and the D&D process the endeavours to place this officer into "suitable Positions" will be reviewed by the Evaluation and Monitoring Committee. > That Committee consists of (amongst others) · The Executive Director Human Resources as the chair · Director-General Ministry of Police · The Secretary, Police Association of NSW. Realistically, if this officer cannot be placed within your Command we will be unable to "offer her suitable positions". Any other positions would involve physical relocation and, whilst we would meet costs, if the Constable did not want to move, their argument would be that it was UN reasonable. We have, you have a corporate responsibility to offer this officer "suitable police positions". I strongly urge you to reconsider your position in relation to this matter. Forwarded for an early formal response. Please be aware that this "case" cannot be progressed until we have a response from you AND the requested audit of your Command is completed and returned. (Emphasis reproduced as appearing in the original letter) 58 In relation to that response, Inspector Salt said that he saw his role very much looking after the interests of injured officers and to gain them suitable duties and he had asked Commander Smith to reconsider his position. He noted that, although the award was dated 2005, in fact they first began negotiating replacements under the award in 2006 and he took up his role in March 2006. In that early period such letters as he sent to Commander Smith were a means of raising awareness or educating Commanders as to the changed approach to placements and more importantly, the retention of PRD officers. Inspector Salt saw his role as ensuring that the organisation met its obligations under the award. There had been no formal education of awareness package sent to Local Area Commands and in his experience a standard response from those Commanders, even until today, remained that they could not place PRD officers because they needed to maintain an operational first line response. By the terms of his letter, Inspector Salt believed he gained Commander Smith's attention and eventually gained his compliance and that was his ultimate aim. The Inspector noted that each Local Area Command was different and had different local needs. Country Commands were completely different to metropolitan Commands. Some Area Commands owned a number of police stations and maintained a number of police cars over a wide geographical area and thus had more than might be required in a city location. 59 On 12 July 2006 Ms Bennett had been notified by the Unit that there were Communications Officer positions available in Tamworth and Newcastle and Inspector Salt believed that, if she had applied for those positions, he would have obtained a placement for her. Ms Bennett had to apply for those jobs but the selection process could vary depending on the position and requirements. Inspector Salt was quite comfortable that if she had expressed an interest in either of those positions, he would have been upfront with the Local Area Commander and would have secured her one of those positions. If he had been unsuccessful, he would take it to a higher level. He believed he could have gained one of those positions for Ms Bennett. The letter he wrote offered her those positions but there still had to be some selection process. Inspector Salt agreed that it was an offer in that context and Ms Bennett would have to make her own enquiries to pursue the position. Inspector Salt also advised Ms Bennett of other metropolitan positions and he believed he could have secured one of those positions if she had been interested in them. He was not trying to force her into a metropolitan position and therefore would also have identified some regional positions. 60 It was put to Inspector Salt that, at that time, the Police Force would not have compelled an uninjured officer to transfer to any of those positions. The Inspector said that, under the regulations, any officer could be transferred and that did not involve a transfer for managerial (that is, disciplinary) reasons and officers were required to obey a reasonable direction such as a transfer. Inspector Salt agreed that, in practice, officers were no longer forced to transfer unless by managerial instrument although there was a policy and regulation power that anybody could be transferred regardless of managerial or disciplinary matters. He conceded that, in practice, that rarely happened and the vast majority of forced transfers would relate to disciplinary matters. 61 In mid-August 2006, Inspector Salt had reported to the Medical Discharge Co-Ordination Unit the efforts taken to attempt to place Ms Bennett in a suitable police position. Having failed to do so, the case was now to be progressed by that Co-Ordination Unit. In that report, Inspector Salt noted that an audit of officers in the current Orana Command was conducted showing that it had an authorised strength of 128 officers and that there was only one restricted duties officer and at the time, that officer's tenure was uncertain. He stated that the Unit had done everything possible to ensure that corporately the organisation met its obligations and responsibilities under the Policy and under the award and at the same time, had done their best to encourage and motivate the Command to similarly meet its commitments to those obligations to Ms Bennett. The Inspector noted that Ms Bennett had fully co-operated with his Unit. Ms Bennett had made lengthy submissions as to her inability to physically relocate from Dubbo for personal reasons. Inspector Salt indicated that Ms Bennett was not the only PRD officer in Orana and that her position had to be counted as part of the overall strength of 128. 62 Ultimately, the Orana Local Command had offered the Intelligence Officer position to Ms Bennett with three restrictions on performing operational duties without a risk assessment. Inspector Salt confirmed that PRD officers could not perform operational duties but they could perform any duty that accommodated their restrictions. Sometimes it was hard to define where operational duties started and finished. An officer could support a police operation and could be involved as closely as possible with operational work but being allowed to support operational work did not mean that they were anywhere near an actual operation. They could be running the computer and supplying reports some distance from an actual operation but in a support role. The Inspector agreed that PRD officers would not be allowed to actively participate in front line operations because they had no appointments. Front line operations were considered to be different from operational duties. 63 Inspector Salt accepted that, for two years while she was on restricted duties, she performed work and if she had not been there, another officer could have had to undertake those duties. He understood that there was nothing to prevent her from continuing to perform those duties, absent her discharge. He understood she was performing front counter work at the police station at Orana and other duties as required. She was performing normal shifts. The stance adopted by the Orana Local Area Command appeared to be that they needed all their police to be operational and ready and that is principally why Commander Smith was saying he did not want another restricted duties officer in his Command. In Inspector Salt's experience, front counter duties notionally rotated between the Constables but some civilian employees were also regularly at the front counter at the station. At most stations at the front counter there would be a different officer from shift to shift or day-to-day. Inspector Salt said it was completely up to the Local Area Command where a PRD person was placed. The Local Command placed a PRD officer and from his experience, he had seen some officers placed in the front counter capacity and would be permanently placed on those duties. 64 Inspector Salt regarded the position of Intelligence Officer as being a reasonable offer to Ms Bennett of a suitable police position. In forming that view he had regard to the requirements of the position, whether Ms Bennett would be able to perform those requirements in light of her medical conditions and restrictions, whether she had the skill for the position having regard to her resume and Ms Bennett's wishes to remain in the Orana Command due to personal commitments in the area. Having considered all those matters, he determined that the Intelligence Officer's position was a suitable police position for Ms Bennett and that she had the necessary skill set to perform the requirements of the position. When it was put to Inspector Salt that she was having difficulties performing the duties while relieving in the position and thought she could not perform the work, Inspector Salt stated that he could not accept that. The position was a developmental opportunity. No one expected a PRD officer to move into a position and be able to deal with it immediately and it was role they could develop into. With the position there were various training and developmental opportunities available to officers including computer courses and intelligence courses that the occupant could develop and give themselves skills to do the job. The Inspector could not accept that she did not have the skill level to perform the job but he would not expect her to fully perform the job after two weeks. He did not expect that an operational officer could come off the police truck one day and be able to properly perform all the roles within the Intelligence Officer's position. 65 Ms Kerry Seaton, as Local Area Manager of Orana Local Area Command, provided an affidavit for the respondent and attached numerous documents dealing with the background to Ms Bennett's placement on restricted duties, her rehabilitation plan and the search for suitable positions. In her position as Local Area Manager, Ms Seaton was responsible for managing the administrative, financial and human resources functions of the Orana Command. Part of the human resources role involved absence and injury management, including welfare, workers compensation claims, return to work plans, rehabilitation and discharge. Ms Seaton also spoke about the injury management panel operating at Orana having responsibility for managing ill and injured officers who were unable to perform full operational duties. Such officers included those on sick leave or workers compensation, others having Hurt on Duty injuries or suffering non-work related injuries. The panel meet fortnightly to discuss how to manage these officers in relation to rehabilitation, re-deployment to PRD positions, re-deployment to administrative positions or applying for medical discharge. Checks were made as to the currency of the medical condition of the officer and an assessment made as to the officer's fitness to continue in pre-injury duties based on opinions given by treating doctors. 66 Ms Seaton also gave a description of the operation of a rehabilitation plan and how officers were placed in positions that might suit their reduced capacity. This may involve modification of a vacant position and making some duties conditional upon a risk assessment being conducted. There were discussions with the rehabilitation provider as to the suitability of the person under consideration for the position. Where vacant suitable positions were not available in the local area, the manager of the Re-deployment Unit, Inspector Salt, usually contacted the Area Commander to explore whether a position could be created or modified at a local level for the officer. 67 Ms Seaton provided details of Ms Bennett's medical management and noted that, when she transferred to Orana at the end of 2004, she had an ongoing Hurt on Duty injury to her right ankle suffered several years previously while undergoing training. Ms Bennett was allocated to a rehabilitation provider to assist her to return to pre-injury duties and a rehabilitation plan was commenced in December 2004 but by 2005 it was clear that Ms Bennett was not making progress to enable her to return to full operational duties. Further surgery in mid-2005 did not assist her rehabilitation. In late 2005 the panel decided to seek medical advice as to whether Ms Bennett was capable of returning to full operational duties and an orthopaedic surgeon, Dr Ken Slater, was approached in mid-January 2006 to review her capacity for returning to normal duties. At that time Dr Slater's view was that she was permanently unfit for full operational duties and that view was later confirmed by Ms Bennett's general practitioner. Following receipt of Dr Slater's report, the Area Command prepared an application for Ms Bennett's medical discharge. At this point, Ms Seaton explained to Ms Bennett that she could apply for her own discharge and could also apply for a PRD position and provided her with a copy of the PRD Policy and application form. Shortly thereafter, Ms Bennett filed a completed PRD application form. 68 During 2006, Ms Seaton said she had numerous discussions with Ms Bennett about placing her in a PRD position. Ms Bennett told her that she did not have a preference for any particular PRD position but also regularly said she did not join the Police Service to perform a desk job. In mid-2006, Inspector Salt had suggested that the Area Command offer Ms Bennett the positions of Brief Handling Manager or Domestic Violence Liaison Officer. Ms Seaton said that the Command's view was it was unable to create a further PRD position as the Area Command had a significant number of officers who were unable to perform full operational duties, meaning that staff numbers did not meet operational policing needs. Further, the Brief Handling Management position could not be offered to Ms Bennett as it was already filled by a police officer who had applied for and been successful in obtaining that role. The Domestic Violence Liaison Officer position was vacant but was unsuitable for a PRD officer as it required Ms Bennett to liaise with victims and offenders of domestic violence and would regularly place her in volatile and potentially dangerous situations. 69 In late 2006 the position of Intelligence Officer was vacant in the Area Command. After discussions with Commander Smith he decided to modify the position to fit within Ms Bennett's medical restrictions so it could be offered to her as a PRD position. The Area Command had initially been reluctant to offer this position to Ms Bennett as it was used for officers on temporary restricted duties such as officers on pregnancy protocols or temporary return-to-work plans. After the duties of the position were modified for Ms Bennett, Occupational Services, as Ms Bennett's rehabilitation provider, were asked to assess Ms Bennett's capacity to perform the duties of Intelligence Officer. In mid-October 2006 Occupational Services provided a report recommending that Ms Bennett had the functional capacity to meet all work demands of Intelligence Officer at Orana, noting that the position did not involve tasks which were beyond Senior Constable's identified functional capabilities and restrictions. They strongly recommended that, to ensure Ms Bennett was not exposed to duties that would expose the ankle to high impact, a risk assessment be performed by her supervisor and be approved by the Commander. 70 In relation to Ms Bennett's secondary employment, Ms Seaton recalled that at the time Ms Bennett transferred to Orana Local Area Command she had ongoing approval to undertake secondary employment. She was aware that Ms Bennett's secondary employment was running a franchise in Dubbo with her husband. 71 Ms Seaton attached numerous documents to her affidavit dealing with the following matters: · on 17 January 2006, Commander Smith wrote to Dr Slater concerning Ms Bennett's assessment of operational fitness. He noted that she been on workplace restrictions for over 12 months for an injury that occurred some five years previously and she did not advise of that injury upon transferring to Orana. He referred to a number of opinions suggesting that the ankle would never return to normal although there was some suggestion that there was scope for improvement. Commander Smith asked Dr Slater to identify either when or whether Ms Bennett was in fact capable of returning to the level of pre-injury duties. He noted that an officer to be classified as fit for pre-injury duties needed to be able to run after an offender, be involved in a violent altercation which could necessitate additional loads including sudden twisting and turning. He also noted that, in Orana in 2005, there were 45 physical injuries to officers during arrests; · in late February 2006, Ms Seaton sent an email stating that she had spoken to Ms Bennett concerning her position and that she could now consider applying for a PRD position. Ms Seaton said she advised Ms Bennett that the Commander "will not support any PRD positions at Orana until the operational strength is significantly improved"; · on the day before this email was sent by Ms Seaton, Commander Smith wrote to the Medical Discharge Co-ordinator seeking Ms Bennett's medical discharge. In this letter, Commander Smith set out much of the background and advice received over a period of time as forwarded to Dr Slater in mid-January 2006. It continued that, in February 2006, a further medical review led Dr Slater to advise that Ms Bennett had a permanent disability and her prognosis was for ongoing related pain. Dr Slater believed that she would not regain fitness for her full pre-injury duties but was fit for permanently modified duties. Commander Smith then stated: During the process of review of the officer's medical condition, I spoke with her on numerous occasions regarding that Orana Local Area Command has no PRD positions available. I requested that the officer consider moving to Sydney or another location to enable her, if necessary, to undertake a PRD position. She declined stating that her and her husband have a successful retail outlet in a local shopping centre and would need to remain in Dubbo. Considering the officer's view towards undertaking a PRD position elsewhere and that she already had suitable alternative employment, I request that her HOD medical discharge be processed as soon as possible to allow for her to move on with her life. 72 Ms Seaton challenged Ms Bennett's assessment that the previous holder of the position of Intelligence Officer was unhappy performing those duties. That person had been granted a "spousal transfer" to Tamworth with her husband and in 2008 had gained appointment to a position of Intelligence Officer in Cootamundra and currently held that position. 73 Ms Seaton confirmed in her oral evidence that in Orana LAC there was no position of Assistant Rostering but there was an Education Officer position. The position of Education Officer was filled by a person with the rank of Sergeant and that was also the position in 2006. In 2006 the position of Intelligence Officer in the area had been vacant for some time, appearing to be vacant between mid-April 2006 before being advertised and was filled in mid-September 2006. Ms Seaton was aware that, between 2004 and the middle of 2006, Commander Smith did not want any permanent restricted duties officers in his Command. She understood that he took that view because at that time he had an extremely high number of officers restricted in various forms. Ms Seaton did not have any precise figures in relation to the officers who fitted that category. The number of restricted duties officers were those who were injured for some reason and could not now perform full duties but they were not on permanent restricted duties - in 2006 there was only one officer who was on permanent restricted duties and that was an officer other than Ms Bennett. Ms Seaton accepted that, between November 2004 and November 2006, Ms Bennett mainly worked normal rostered 12 hour shifts and performed non-operational functions but another officer would have been required to undertake those duties if she was not there. Ms Bennett was not a supernummary. The type of jobs performed by Ms Bennett could also be performed by unsworn officers. 74 It was accepted by Ms Seaton that the position of Intelligence Officer could have been offered to Ms Bennett in May 2006 but she was unaware of Commander Smith's reasons for not offering her the position at that time. During 2005 and 2006 there was a role of Brief Handler in the Local Area Command and that was a position identified as suitable for someone on permanently restricted duties but during this period it was filled by an operational officer on a part-time basis and that officer was Commander Smith's wife. When Commander Smith left the area with his wife, an officer on permanent restricted duties then filled the position. In relation to station officer deskwork, Ms Seaton said there was no permanent position for that work but officers were rostered for duty for that work on a day-by-day or week-by-week basis. DELIBERATION 75 The present application, at its core, involves the interpretation of cl 9.2 of the Crown Employees (Police Officers Death and Disability) Award. The principles applicable to such an exercise have been discussed on numerous occasions in judgments of this Court and more recently have been summarised by the Full Bench in Zoological Parks Board of New South Wales v Australian Workers Union (2004) 135 IR 56. It has long been accepted that the interpretation of an industrial instrument such as an award or agreement begins with a consideration of the natural and ordinary meaning of its words (see Re Clothing Trades Award (1950) 68 CAR 597): the words are to be read as whole and in context (Australian Timber Workers' Union v W Angliss & Co Pty Ltd (1924) 19 CAR 172). In City of Wanneroo v Holmes [1989] 30 IR 363 at 378-379, French J (as he then was), dealing with an application for interpretation of an award in the Federal Court, noted that the words used in an industrial instrument must not " ... be interpreted in a vacuum devoid from industrial realities", citing the famous passage from Street J in Geo A Bond & Co Ltd (In Liq) v McKenzie [1929] AR(NSW) 499 -503. His Honour went on to state that it was, of course, no part of a court's task to assign a meaning in order that the award may provide what the court thinks is appropriate, citing Australian Workers Union v Grazier's Association (NSW) (1939) 40 CAR 494. These expressions are consistent with what was said by the Full Court of the previous Industrial Court in Cepus v Heggies Transport Pty Ltd (1993) 52 IR 123 and by the Commission in Court Session in Bryce & anor v Apperley (1998) 82 IR 448. From these major authorities dealing with the appropriate principles to apply in award interpretation, it can be said that generally speaking, primary consideration is given to the actual words used and those words should be given their plain and ordinary meaning having regard to the context in which the words are used. Sometimes it is necessary to go beyond merely assigning the words their plain and ordinary meaning and when necessary, evidence of surrounding circumstances is admissible in aid of the construction of an industrial instrument as with a contract (see Mason J in Codelfa Constructions Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 348. 76 The difficulty of infelicitous expression is well alive in the present case. The difficulty of the task was succinctly described by Gilchrist J sitting in the South Australian Industrial Relations Court in Hyatt Regency Adelaide v Pratt (2007) 164 IR 310 at [30]: Award interpretation can be a difficult exercise. The task of the court is to interpret the Award and not to re-draft it. But the distinction between these two functions can at times be elusive. An award is an instrument often drafted by persons who know what they mean but who might not express what they mean in a manner reflecting the skill of an expert draftsperson. Sometimes the relevant clause reflects a compromise with bits and pieces of diverse positions cobbled together. This can result in infelicities of expression and the formation of phrases or sentences that when read literally make little or no sense. Faced with such difficulties it is appropriate for a court 'to read the award to give effect to its evident purposes... [a]nd meanings which avoid inconvenience or injustice may reasonably be strained for.' ... But there are limits. For as Hayne J explained, that exercise cannot be undertaken simply for the purpose of achieving: '... some result that might be considered fair or desirable according to some a priori standard of fairness or proper employment practice.' ( Australian Communications Exchange Ltd v Deputy Commissioner of Taxation (2003) 77 ALJR 1806 at 1826). The line between the permissible straining of a meaning to avoid inconvenience or injustice and the impermissible straining of a meaning prompted by a desire to achieve a fair result can be blurred. Doubtless this is a reason why many cases concerning award interpretation are littered with equally reasonable conflicting opinions. 77 In the present case the parties freely acknowledged the difficulty of the words adopted in the making of this consent award and have put before the Court certain policies adopted by the Commissioner of Police relating to the subject of transfer and being placed on permanent restricted duties as an aid to construction. Reference has also been made to legislation, namely, the Workers Compensation Act 1987, because of the asserted relevance of being Hurt on Duty and the compensation provisions which apply to that occurrence and the associated eventuality of possibly being placed upon permanent restricted duties, as being relevant to the interpretation task. In the present case, being a consent award, nothing further has been put forward by the parties arising from the industrial context leading up to the making of the award. Nevertheless, as stated by the joint judgment in Royal Botanic Gardens & Domain Trust v South Sydney City Council (2002) 186 ALR 289 at [10] it is appropriate to have regard to more than internal linguistic considerations. There, the High Court spoke of the necessity to consider the circumstances with reference to which the words in question were used and in those circumstances, to discern the objective that the parties had in view. These authorities were referred to by the Full Bench in the Zoological Parks Board case and also by the Full Bench in South Eastern & Sydney Illawarra Area Health Service v HSU (2007) 165 IR 43 at [30], where the further comment was made that the approach to the analysis should not be too strict or too literal as the words will often be derived from an agreement between parties in an industrial context, in turn citing Cepus v Heggies (supra) and Perisher Blue Pty Ltd v Australian Workers Union (1999) 91 IR 274 at 283. 78 The parties referred to previous judgments regarding the operation of the award, accepting, however that none of them dealt directly with the issues now before the Court. No issue was taken with the description of the award given by Staff J in Police Association of NSW (o/b Gulbis) v Commissioner of Police [2008] NSWIRComm 187 that the award "is clearly intended to compensate officers for the loss of career", noting that the younger the officer, the greater the multiplier in calculating benefits under the award. This statement was cited, with approval, by Kavanagh J in Police Association of NSW (o/b Clifton) v NSW Police Force [2009] NSWIRComm 197. Kavanagh J also cited with approval the following extract from the judgment of Schmidt J in Stimson v NSW Police Service [2008] NSWIRComm 196, stating at para [5]: As to the purpose of the Award, Schmidt J in Stimson ... found the underlying purpose or object of the Award was to provide rehabilitation and retraining, as well as benefits on the medical discharge of police officers who had suffered injury and includes a benefit to those officers who are unable to recover sufficiently to permit them to return to any duties in the employment of the Police Force. Her Honour held at [26]: ... ... the Award is directed to provide rehabilitation and retraining, as well as benefits on medical discharge, for Police Officers who suffer an injury, including those who are unable to recover sufficiently to permit them to return to any duties in the employment of the Police Force. So much is further confirmed by the Award definitions "partial and permanent disability" and "total and permanent disablement".

In Stimson , Schmidt J also referred to the police Rehabilitation Policy stating at para [17]: The Rehabilitation Policy was the mechanism whereby the Police Force sought to meet the obligations imposed upon it by the Workplace Injury Management and Workers Compensation Act . The Policy was also intended to have the force of the Award. The Policy itself acknowledged that 'there is an ethical and moral obligation on NSW Police as an employer to, where practicable, assist an injured employee in returning to pre injury employment or obtain alternative employment'. Regrettably, in the case of Mr Stimson, that obligation was not honoured. There was no evidence from which it could be concluded that it was not practicable for Mr Stimson's request for secondary employment to be approved. 79 In Stimson, Schmidt J also discussed the proper construction of the award: [24] Like many awards, this Award was made by consent, reflecting that it is the product of an agreement reached by the Award parties. The controversy in this case, as to the proper meaning of clause 4 of the Award, reflects that there is some ambiguity in its drafting. How such questions of construction are to be resolved is well settled, as recently discussed by a Full Bench of the Commission in Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades and New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158 particularly at [46] - [47]

46 Whilst awards are instruments to be construed according to the terms of the Interpretation Act, consideration should be given to the differences between statutes and awards. Some of these differences were referred to by Street J in Bond v McKenzie: But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament.

47 Nevertheless, it would be untenable to attempt to construe the terms of an award according to the subjective intentions of the parties if, in doing so, it resulted in an unreasonable and unnatural construction having to be placed on the words of the award. In interpreting the provisions of an award the intention of the drafters must be ascertained by reference to the actual words used (and those words should be given their plain, ordinary meaning), thereby disclosing the underlying purpose or object of the award and its context, using that term in its broadest sense, including extrinsic material. Thus, attention must at all times be given to the meaning and effect of the award as it appears from the plain and ordinary meaning of the words used: see Zoological Parks at [43]. It is not permitted to attach to a provision of an award a meaning which the words of the award cannot reasonably bear: Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 321 (per Mason and Wilson JJ). 80 More recently, French J has revisited the issue of the interpretation of an award while sitting in the Federal Court in the The City of Wanneroo v Australian Municipal Administrative Clerical and Services Union (2006) 153 IR 426. Having stated the principles concerning the construction of statutes, his Honour said at [57]: It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 at 503-4 ( Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380): Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties. 81 Bearing these principles in mind, it is necessary to identify the issues that arises in relation to the operation of cl 9.2 of the award. Before proceeding to that task some comments are necessary concerning the provisions of the Act relating to the recovery of amounts owed under award obligations. This application is brought pursuant to s 365 of the Industrial Relations Act which gives jurisdiction to the Industrial Court, on application, to order an employer to pay an amount payable under an industrial instrument but remains unpaid to the person to whom it is payable. No technical issue arose as to the competency of the claim, the only issue raised by the employer being whether or not Ms Bennett had disqualified herself from the payments available under the award by refusing to accept one of three reasonable offers made in accordance with the Permanent Restricted Duties Policy of suitable police positions for re-deployment. If the Court determines that Ms Bennett does qualify for the payment, the Court's obligation is to make the order specifying the appropriate payment required to be made in accordance with the provisions of the award. Somewhat curiously, s 370 provides that the Industrial Court on an application for an order under Pt 2, Ch 7 of the Act may make "such order as it considers just in the circumstances". It has been accepted, however, that this jurisdiction does not extend to the making of some type of arbitral determination but rather goes to the method and time of the payment (Hawkesbury Dairy and Ice Society Ltd v Ryan (1932) AR(NSW) 237. 82 In the circumstances of this case, the following questions arise and impinge upon Ms Bennett's entitlement to be paid the lump sum referred to in cl 9.3.2 and as calculated in accordance with annexure B to the award: (a) whether the applicant has engaged in the provisions of cl 9 as required by cl 9.1. of the award (that is, undertake the mutual obligation/identifying suitable positions for redeployment and to accept a reasonable offer of a suitable police position as well as participating in rehabilitation and retraining)?; (b) whether Ms Bennett discharged her "mutual obligation" to identify suitable police positions for re-deployment?; (c) whether Ms Bennett was under an award obligation pursuant to cl 9.2. to accept positions in the Sydney metropolitan area or in Tamworth and Newcastle?; (d) whether it was "a reasonable offer" of a "suitable police position" to be offered positions outside of the Orana LAC in light of Ms Bennett's known personal, business and family commitments in Dubbo?; (e) whether an offer of a position is "reasonable" and "suitable" is limited to a consideration of the duties of the position or whether the award contemplates that appropriate personal circumstances as well as business and domestic arrangements are to be considered and that those arrangements may result in an offer of re-deployment being neither "reasonable" nor "suitable or alternatively, of being "suitable" but not "reasonable". 83 The matters to be considered in dealing with the questions that the Court is required to determine were assisted by the following concessions made on behalf of the respondent: (a) the applicant's employment is covered by the award; (b) the applicant suffered an on-duty injury; (c) the applicant was, at the time of her termination, incapable of performing full operational duties, that is, she was unable to return to pre-injury employment; (d) the applicant was suffering a partial and permanent disability; (e) the applicant did not consent to being considered for re-deployment to an administrative officer position; (f) the applicant was medically discharged by the respondent and her last day of service was 22 December 2006; (g) the applicant was 34 years old at the time of the discharge; (h) the applicant's annual rate of remuneration at the time of termination was $58,930.

84 Before considering the context in which the critical words "reasonable" and "suitable" appear, it is convenient to deal with dictionary meanings of those words and some cases where the words or similar words have been considered although in a different context. Consideration also has to be given to the term "reasonably practical". Of necessity, these matters give general assistance, however, the context in which the words are used must be given primacy. Nevertheless, in an admittedly difficult task, it is appropriate to cast a wide net in order to ensure that any assistance that may be available to the Court is considered. The Macquarie Dictionary (3rd ed) defines "suit" to mean, amongst other meanings: "... to be appropriate or becoming to ... to be or proved satisfactory, agreeable or acceptable to; satisfy or please ... to be appropriate or suitable; accord ... to be satisfactorily agreeable or acceptable. ...". The word "suitable" was defined as meaning "such as to suit; appropriate; fitting; becoming". The Compact Oxford English Dictionary defined the word "suit" to mean, amongst other things: "to find a parallel to, match ... to be agreeable or convenient to (a person, his inclinations, etc); to fall in with the views or wishes of ... to be fitted to or adapted to, be suitable for, answer the requirements of ... to make appropriate or agreeable to, to adapt or accommodate in style, manner, or proportion to; to make consonant or accordant with; to render suitable ... to provide, furnish ... to be provided (or provide oneself) with something desired and in such a manner as to please one ...". The word "suitability" was defined to mean: "to be fitted or adapted for ... to act in accordance with, conform to ... ". The word "suitable" was defined to mean: "conforming or agreeing in shape, colour, pattern or style; matching, to match ... conforming or agreeing in nature, condition or action; accordant; corresponding; analogous; occas, congenial, ... of two or more things; that are in agreement or accord ... that is fitted for, adapted or appropriate to a person's character, condition, needs, etc, a purpose, object, occasion or the like". 85 Stroud's Judicial Dictionary of Words and Phrases (6th Ed) under the definition of the word "suitable" dealt with the following: "suitable accommodation for clothing" (Factories Act 1937 s 43(1) now Factories Act 1961 s 59(1)); the risk of theft must be considered in deciding the suitability of accommodation (McCarthy v Daily Mirror Newspapers [1949] 1 All E.R. 801. ... "Suitable goggles ... to protect the eyes" (Factories Act 1937 s 49 now Factories Act 1961, s 65) means well adapted for the process under consideration and well adapted for the wearer in that they must fit him (Daniels v Ford Motor Co. [1955] 1 W.L.R. 76). "Suitable accommodation" Housing Act 1985, s 69 as amended by s 14(3) of the Housing and Planning Act 1996. In determining whether an offer of accommodation was an offer of "suitable accommodation" the Authority should have regard not only to the accommodation itself, but also to the individual circumstances of the homeless person and her family (R v Brent London Borough Council, ex parte Omar (1991) 23 H.L.R. 446). An offer of accommodation was "not suitable" where the Authority had failed to take into account material available to them about the extent of racial harassment in the vicinity of the premises (R v Tower Hamlets Long Borough, Ex parte Subhan Abdul (1992) 24 H.L.R. 541). 86 As to dictionary definitions of the word "reasonable", the Macquarie Dictionary gives the following definition: "endowed with reason ... agreeable to reason or sound judgment; a reasonable choice ... not exceeding the limit prescribed by reason; not excessive; moderate, or moderate in price". In Black's Law Dictionary (5th Ed) the word "reasonable" is defined as follows: "fair, proper, just, moderate, suitable under the circumstances. Fit and appropriate to the end in view. Having the faculty of reason; rational; governed by reason; under the influence of reason; agreeable to reason. Thinking, speaking or acting according to the dictates of reason. Not immoderate or excessive, being synonymous with rational, honest, equitable, fair, suitable, moderate, tolerable. Citing Cass v State, 124 Tex.Cr.R. 208, 61 S.W. 2d 500". 87 As to the word "reasonable": in Opera House Investment Pty Ltd v Devon Buildings Pty Ltd (1936) 55 CLR 110 a covenant in a lease dealt with additional rent equal in amount to interest payable by the lessor on money borrowed on the mortgage and applied towards erecting a building on the land and after expiration of the mortgage, to be at such higher or lower rate of interest as the lessor may reasonably contract to pay. The lessor was able to renew the mortgage at 4¼ per cent but borrowed a greater amount at 4½ per cent. The litigation centred on the reasonableness of the lessor's actions. The majority of the Court held that the lessor was not bound to ignore his own interests in the matter and that he had acted reasonably in borrowing the larger sum at 4½ per cent for five years and that the lessee was then bound to pay additional rent at the rate of 4½ per cent for five years on the amount that had originally been borrowed. Latham CJ, at p 116, considered the meaning of the word "reasonable" in this context and stated: The word "reasonable" has often been declared to mean "reasonable in all the circumstances of the case." The real question, in my opinion, is to determine what circumstances are relevant. In determining this question regard must be paid to the nature of the transaction. A circumstance which had no relation to the property which was the subject matter of the transaction but which depended entirely upon the personal position or personal desires of the owner of the property, would not, in my opinion, be a relevant circumstance in determining what was reasonable. If, to take an extreme example, the lessor had promised to pay to a favourite daughter the rent derived from this property and was anxious to pay her as much as possible, that circumstance should be excluded in determining what was reasonable under the clause in question. But if the lessor of a hotel refuses his consent to an assignment of the lease to a brewing company because he does not wish the hotel to become a tied house, he may be acting reasonably ( In re Marshall and Salt's Contract ]). In such a case the wish of the lessor has a direct practical relation to the property which is the subject matter of the transaction between the parties. 88 In the same case at p 117, Starke J stated: "Reasonable" is a relative term, and the facts of the case must be considered before what constitutes a reasonable contract can be determined.

Evatt J at p 125, referred to the judgment of Mann CJ in the Full Court of the Supreme Court of Victoria who held that the question of what is a reasonable contract for the lessor to make did not, on the proper interpretation of the clause, exclude from consideration the owner's own financial necessities or considerations of prudence generally as a mortgagor. Evatt J regarded that opinion of Mann CJ as being correct. 89 In the context of a criminal offence, a defence of "reasonable" cause was considered by the High Court in The King v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128.

The joint judgment of Knox , CJ , Isaacs J, Gavan Duffy and Powers JJ stated: Reasonableness is relative, and must be proportioned to the circumstances of the case considered as a whole. 90 In reviewing cases where the phrase "suitable employment" has been considered by the courts, it is to be noted that these cases regularly arise in relation to rehabilitation regimes and workers compensation cases. Less frequently, the phrase appears to arise in relation to redeployment and the availability of positions being a consideration prior to termination for redundancy. On occasions, the enactment or instrument under consideration will define what matters are to be taken into account. An example of such a provision concerned workers compensation for Commonwealth employees under the Safety Rehabilitation and Compensation Act 1988 (Cth). Section 19(3) of the Act provided that Comcare would pay compensation to an employee in respect of an injury determined on the basis of his previous normal weekly earnings less the amount he was able to earn "in suitable employment", depending on the amount of time spent on that "suitable employment". Section 4(1) of the Act defined "suitable employment" in work for which the employee was suited having regard to the employee's age, experience, training, language and other skills, the employee's suitability for rehabilitation or vocational training and where employment was available in a place that would require the employee to change his or her place of residence, whether it was reasonable to expect the employee to change his or her place of residence and any other relevant matter. In Comcare v Chenhall (1996) 139 ALR 380, Heerey J noted that, by way of example, if a Commonwealth lawyer suffered an injury with severe nervous and psychological condition and could only obtain casual gardening work at $200 per week, Comcare would have regard to his gardening earnings, in the sense of taking them into account, but the fact that $200 earned as a gardener would not indicate that the lawyer was able to earn any amount at all in what was "suitable employment" for him, that is, legal work at a level in the Commonwealth Service for which he was suited by reason of his age, experience, training and any other relevant factors mentioned in the definition. In this statutory definition of "suitable employment" the consideration included not only age, skill and capacity but also whether it was reasonable for the employee to change residence to obtain such employment. Thus, personal and other reasons would need to be considered. 91 A similar type of definition as found in the legislation considered in Chenhall was used in the Western Australian Government/Australian Liquor Hospitality and Miscellaneous Union (ALHMWU) Redeployment, Retraining and Redundancy (Interim) Award 1994 (1996) 69 IR 279, being an award of the then Australian Industrial Relations Commission. Clause 8 of that award dealt with redeployment and training in circumstances of redundancy. Where an employee's position was redundant, the person was to be transferred to suitable alternative employment either within his or her Department or Authority or with the consent of another Government employer to that Government employer. "Suitable alternative employment" was defined to mean "a position which is for an indefinite period in a permanent position with a Government employer, has a wage or salary as close as possible to that of the employee's existing position and does not require the employee to change his or her place of residence in order to take up the position and has regard to the relevance of the duties and responsibilities to the qualification and experience of the employee and the competence of the employee and the ordinary hours of duty being in general no less than those worked by the employee in his or her original position." In that case, at first instance, it was held that the award specified that each employee's particular circumstances including family responsibilities and health issues as well as competence, qualification and work experience together with hours, wages, geographical and permanence factors had to be taken into account. 92 Another example of a similar phrase in workers compensation is the phrase "capable of earnings in suitable employment" found in the Workers Compensation Act 1985 (Vic), admittedly a different question to the one now being considered by this Court. The meaning of that phrase came before the Victorian Court of Appeal in Victoria (Department of Sustainability and Environment) v Rattray (2006) 154 IR 346. In dealing with the judgment at first instance, Bongiorno AJA at para [13] noted, without dissent, that the primary judge had referred to the definition of "suitable employment" in s 5 of the Act and the fact that the claimant's place of residence was a relevant matter in determining whether any particular work was to be considered suitable. 93 The term "suitable alternative employment" has more recently been considered by Ainslie-Wallace DCJ in Samuels v BT Australasia Pty Ltd (2007) 168 IR 231. That was a contract case in which a manager in the company had been affected by a restructure and had been offered a different role. The plaintiff declined to accept the new role because it represented a demotion. The plaintiff's contract of employment contained a provision that, in the event of the position becoming redundant and no suitable alternative employment being found, severance payments would be made on termination calculated in accordance with a formula set out in the contract. Her Honour found on the evidence that, following the restructure, the plaintiff's position as manager became redundant. The expression "no suitable alternative employment" was not to be determined solely by reference to the view of the employer made on a bona fides basis. The word "suitable" read in the context of the provisions meant a mutual decision between the plaintiff and defendant that could properly include the plaintiff's perception of the alternative position. The alternative position offered involved the same skills and qualifications but was not essentially the same position. An objective assessment of the two roles confirmed the plaintiff's perception that the position offered was in fact a demotion. The plaintiff had acted reasonably in refusing to accept the alternative position and so was entitled to compensation pursuant to the terms of the contract. 94 In the course of dealing with the submissions, her Honour made reference to the judgment of Madgwick J in Westen v Union Des Assurances De Paris (1996) 88 IR 259 in which the employee's perception as to the suitability of the employment was considered. While that was a repudiation of contract case, his Honour took into account a number of issues in which the occupant felt that the position was different from the position being offered to him and thus was not a continuation of the existing contract of employment. In that case, Madgwick J gave weight to the fact that the applicant would no longer be manager of all claims in New South Wales with his own discrete staff; would no longer report directly to the State Manager; would not have his own personal secretary; would not have the power of a final decision over claims; and, would not have the final advisory role to national top level management in relation to national claims. These matters were regarded as constituting a considerable change in the nature of the new position being offered - he had thus been offered new and different employment from his original contract. Thus, in both Samuels and Westen the perception of the employee was considered to be relevant in ascertaining the suitability of a position. 95 There is also a line of authority in workers compensation cases where similar concepts as to "reasonableness" and "suitability" have been considered. In Fazlic v Milingimbi Community Inc (1982) 150 CLR 345, the High Court overturned a decision of the Full Federal Court that an injured worker had unreasonably refused a medical procedure and thus had disqualified himself from compensation benefits. The worker had suffered a severe injury to his lower back and right leg and was diagnosed as suffering from a lumbar disc protrusion that was said to be gross and not improving with physiotherapy. The treating surgeon recommended an immediate operation and told the worker that, without this procedure, his condition would not improve and pain and disability would continue and might possibly become worse. The worker was told that the procedure was a relatively major back operation which carried some risk but the chances were that he could expect improvement from the operation and the sooner it was performed the better the prospects of a successful outcome. The worker told his surgeon that he did not want to have the operation and thereafter persisted in that view. He had been examined by the surgeon on a number of occasions over a period of one year and although the operation continued to be recommended, nothing more was said about its consequences. The worker maintained his rejection of the operation because he had a fear of operations generally and in particular because this was a major operation on his back and he feared he might end up worse off. 96 In the various legal reviews that took place, the medical evidence was consistently to the effect that there was likely to be an improvement in his condition if he underwent the procedure. In the High Court it was accepted that it would be rare for an employer not to succeed in establishing that a worker's refusal was unreasonable when the worker had permitted baseless fears to decide his choice which outweighed his knowledge of cogent factors favouring undergoing an operation. That was not the present case. All that the worker had to place on the scales and weigh against his strong and generally held fear of the operation was the knowledge, gained from his treating surgeon, that the operation would be relatively major, carrying some risk with chances being that it would improve his condition. He knew almost nothing about the objective seriousness of the operation. He did not have knowledge of subsequent evidence given in the Federal Court by two surgeons concerning the slight risk involved in the operation and the high prospects of complete success that the operation offered. In this situation the High Court, at para [12] stated: Any assessment of the reasonableness or otherwise of a worker's refusal of treatment must depend upon the worker's state of knowledge at the relevant time. This accords both with good sense and with authority. A worker's choice cannot be said to be unreasonable because he has failed to give effect to factors unknown to him. And in the case of complex medical or surgical procedures he will know little except what he is told. In the present case he was told very little indeed. 97 That decision highlights the knowledge and appreciation of the worker rather than allowing the issue to be decided by later evidence of the likely success of the procedure. Although arising in a different context, it is consistent with the view taken in Samuels and Westen that it is necessary to take into account the employee's perception. 98 The approach in Fazlic has since been applied by the New South Wales Court of Appeal in relation to workers compensation and the concept of unreasonably discontinuing employment (see Freightcorp v Duncan [2000] NSWCA (309)). In that case a workplace injury had rendered the worker partially incapacitated for the work as a station assistant but a re-organisation and job re-design led to the creation of new positions with revised workloads. The injured worker had applied for a re-designed position similar to the one he had previously held but had been unsuccessful in obtaining that position. Thereafter, the worker took voluntary redundancy. The Court of Appeal noted that the provision required that there be an unreasonable rejection or discontinuation by the worker of suitable employment but that did not happen in the present case. Freightcorp proposed to abolish the worker's position and reasonably he accepted the offer of voluntary redundancy made to him. It was then noted that an assessment of the reasonableness of the worker's refusal depended upon the worker's knowledge at the relevant time, citing the High Court judgment in Fazlic. 99 A case of closer relevance to the award governing Ms Bennett is the decision of the Full Court of the Supreme Court of South Australia in Workers Rehabilitation & Compensation Corporation v James (1992) 57 SASR 365. There, the court was dealing with certain provisions of the Workers Rehabilitation and Compensation Act 1986 and factors relevant to a determination of an amount the worker could earn in suitable employment that the worker had a reasonable prospect of obtaining. One of the matters considered by the court was the Compensation Authority's submission that, under the legislation, the notion of "suitable employment" required consideration to be given only to the effect of the defendant's compensable disability when assessing the defendant's prospects of obtaining such employment. It did not extend to a consideration of other matters including personal circumstances or location. Millhouse J at (p 383) stated that the the phrase "suitable employment" had a long history in compensation legislation and first appeared in a context similar to the statute then under consideration in the first schedule to the Workers Compensation Act 1906 (UK). In 1910 the Court of Appeal in Eyre v Haughton Main Colliery Co Ltd [1919] 1 KB 695 considered what the phrase meant and determined that it was a quite restrictive test having regard to the physical condition of the injured man and the nature and character of his occupation before the accident and the nature of the work offered after the accident. In Broughton v London and North Eastern Railway Co [1930] 1 KB 578, Slesser LJ (at 586) came to the conclusion that such matters as the state of the health of the workman's wife, children's' health or the lack of accommodation for wife or children were extraneous matters that could not be taken into account. The question was what was the workman able to earn in suitable employment or business? After considering the extensive history of the term and the provision then appearing in the legislation under review, Millhouse J (at 385) stated: In considering all the matters the subject of the questions under appeal, one must take into account the situation in a wide sense of the individual worker and look at what reasonably at that time are his chances of getting work in the foreseeable future. 100 In a separate judgment, Zelling AJ also considered the history of workers compensation legislation commencing with the influence of English workmen's compensation laws and their adoption by Australian states. His Honour then turned to the proper meaning of the words "suitable employment" and it is of some assistance in the present case to set out at length what his Honour said relating to that matter, at 392 - 394: The applicant contended before us, as it did before the learned judge, that whether employment is "suitable" for the purposes of the 1986 Act is to be determined solely by the worker's capacity for work, and that his personal wishes and circumstances are irrelevant. The argument was based on a passage in the judgment of Bray CJ in Percic v Broken Hill Pty Co Ltd (1973) 6 SASR 1 at 4, where the former Chief Justice, speaking of the same words where they appear in the Workmen's Compensation Act 1932, said: I think, on consideration, that there was some evidence which justified him in adopting the assembler's rate as the wages which the appellant was able to earn over the relevant period in some suitable employment. "Suitable" for this purpose means suitable having regard to the physical condition of the man, the nature and character of his occupation before the injury, and the nature of the work available after the injury. Questions of personal preference, geographical convenience or family circumstances are irrelevant: Eyre v Houghton Main Colliery Co Ltd [1910] 1 KB 695, per Cozens-Hardy MR at 697-698; Broughton v London and North Eastern Railway Co [1930] 1 KB 578. On this, I think three observations should be made. First, speaking as a member of the Court which decided Percic's case (supra), the observations quoted above were not necessary for the decision of the case, which really turned on a point of jurisdiction. Secondly, neither Eyre (supra) nor Broughton (supra) are authority for strictly confining the concept of suitable employment in this way. Fletcher Moulton LJ went further than Cozens-Hardy MR in Eyre at 698 and 700 in considering the workman's personal circumstances. The third judge, Buckley LJ, only agreed in the result. In Broughton , as appears from the judgment of Scrutton LJ (at 581), the workman's terms of employment obliged him to move from place to place in the employer's system as the employer required. Although this narrow view of suitable employment has been used in other cases in Australia, I think it is a mistake to give almost statutory force to the philosophy of employer and workman which existed two to three generations ago, when a workman was largely an economic chattel whose personal circumstances could be disregarded, and who could be dealt with at the employer's whim.

Thirdly, I do not think that so restricted a view is in consonance with the philosophy of the 1986 Act. This Act is tailored to the rehabilitation of the individual workman, with his individual needs, deficiencies, and personality. Further, Parliament must be taken to know in 1986 that we are no longer in an age where the male is the sole breadwinner. In these days when both husband and wife work as a matter of routine, employment can hardly be "suitable" for the injured spouse, by forcing him to move elsewhere, if it reduces the family income to that of one earner, or otherwise disrupts the family pattern of earning, because all the family's ongoing commitments have been entered into on the basis of two continuing incomes. Injecting that sort of stress into the situation is hardly likely to help anyone's rehabilitation and that is what this Act is there to promote. Similarly, with place of living, suppose the injured workman has had his name down for a Housing Trust house for years and just as his name comes towards the top of the list he has an industrial accident. Is his family to be deprived of the benefit of subsidised housing for which they otherwise qualify, simply because that puts the injured workman out of reach of a job which he could do if he stayed where he was paying full rental? These are merely two of many scenarios which could be envisaged. The learned judge subsumed the solution of all these problems under the use of the word "reasonable", and I do not quarrel with his concept of reasonableness. What I do say is that in this day and age, "suitable" where used in this Act in relation to employment, must mean suitable in relation to the workman as an individual, and the old concepts of suitability which would oblige a man to go 400 miles from his wife and family just because there was a job at that distance that he could do (cf Roper v Commissioner for Railways (No 2) [1959] WCR 93) belong to the days when an employee was an economic chattel, and have no place in the philosophy or interpretation of this Act. I entirely agree with the learned judge that a workman cannot change his residence simply to avoid working, and to stay on compensation. But those are not the facts of this case. Suitable employment means employment which the workman can do and which in the total circumstances of that injured workman, will promote his rehabilitation and re-integration into the work force.

In my view the words "reasonable" and "reasonably" where they occur in s 35, sub-ss (1) and (2)(a), merely underline the philosophy of this Act as I have endeavored to set it out. 101 The approach in Compensation Corporation v James has more recently been followed by Gilchrist, J, Deputy President of the South Australian Workers Compensation Tribunal in the matter of Hines v Workcover/HIH (Transfer Maintenance Pty Ltd) Corporation [2000] SAWCT 171, In that case a worker had been engaged in the maritime industry for a considerable time and accepted voluntary redundancy in mid-1993 primarily because of his wife's deteriorating health. After accepting voluntary redundancy, the worker's then employer offered him a position on a casual basis and his redundancy payout was reduced. That position was accepted because the worker anticipated that the hours he would be required to work would enable him to spend considerable time looking after his sick wife. He worked on these duties for approximately six years. The work did not involve consistent hours because of weather and shipping schedules: he did not work a regular 38-hour per week and sometimes did not work at all but on average, he worked approximately 16 hours per week in this employment. The worker then suffered injuries on two occasions and became partially incapacitated for work and on return to work, worked two days per week. A rehabilitation and return to work plan providing for light duties stipulated that he was to work 16 hours per week. Some weeks later the employer offered him different duties, working 38 hours per week. The worker informed his employer that, because of his personal circumstances and in particular his wife's ill health, he was prevented from working a full 38 hour week every week and thus could not accept the proposed return to work plan. The worker declined to sign this plan and ultimately notified a dispute challenging the reasonableness of the terms of this plan. In determining this issue, his Honour the Deputy President referred to two decisions, including the judgment of Zelling AJ in Compensation Corporation v James and in particular the passages earlier set out in this judgment. After reciting the views of Zelling AJ, Gilchrist DP expressed agreement with those observations stating: [52] In determining the reasonableness of a rehabilitation and return to work plan or its provisions, consideration must be given to the personal circumstances of the worker. They are not paramount but they must be taken into account. [53] Whilst I find that the worker is in general terms physically and mentally capable of undertaking the duties prescribed in the third plan, I find that the requirement that he undertake those duties at Port Stanvac between 7.30 am and 4.30 pm Monday to Friday, is, in all the circumstances, unreasonable. [54] This is not a case whereby it was personally inconvenient for the worker to attend for work at that time. The reason why the worker had taken this casual position in the first place was because it only obliged him to work for a limited number of hours and thereby enabling him sufficient time to care for his ailing wife. [55] In order to work the hours proposed at Port Stanvac, the worker would have to break a pattern that had been in place for over six years and either organise other care-givers to attend to the needs of his wife or leave her unattended for much longer periods that he or she were accustomed to. One can well imagine the distraction this would cause him. It could hardly be conducive to the worker's rehabilitation and restoration to the work force to unilaterally impose this obligation upon him and without any provision to give the worker a time to adjust to his personal circumstances. ... What was required here was a sympathetic approach that recognised the special needs of the worker that took that into account. 102 The same approach has been adopted to similar provisions of workers compensation legislation operating in New South Wales. In McDonald v North Coast Area Health Service [2001] NSWCCPD 50, the President of the Workers Compensation Commission of New South Wales, Judge Keating considered the circumstances of a injured registered nurse who had returned to work on decreased hours gradually returning to normal hours but still on restricted duties until he resigned. The nurse said that the resignation of employment was a result of the employer's refusal to accommodate his request for an adjustment of his roster. The request had being prompted by a change in his domestic situation which required him to undertake care of his young son on Monday and Tuesday following his wife's return to full-time employment. His Honour had to consider whether, in the circumstances, the resignation amounted to an unreasonable rejection of suitable employment. In doing so his Honour considered a number of cases, including the judgments in Freightcorp v Duncan, Fazlic v Milingimbi Community Inc and Hines v Workcover/HIH (Transfer Maintenance Pty Ltd) Corporation, cases referred to elsewhere in this judgment. His Honour then continued: [85] In Joseph Marmara v K Mart Australia Ltd (unreported 13 November 2000), Curtis CCJ considered the context of reasonableness in s 52A of the 1987 Act. His Honour was concerned with the worker who had been employed by the employer for 19 years prior to his injury and had risen to the position of supervising mechanic in charge of five staff. After the injury, and with the intervention of rehabilitation providers, the worker found work as a console operator at a service station working 18 hours per week. He is required to work three nights per week between midnight and 6.00 am. He resigned that position to find a more suitable job. He subsequently attempted several other jobs unsuccessfully. His Honour found that the injured worker refused suitable employment because of the uncongenial hours, adding that the worker conceded that his wife did not like him doing the work although she had not asked him to resign. Relevant to understanding the scope of unreasonable, his Honour stated: The applicant (worker) is not a serf or peon. If he has uncongenial employment it is reasonable that he would attempt to find something better. This was a man who is married with four young children working from midnight to 6.00 am. It would be unreasonable to expect that he would not attempt to find something better. 103 His Honour then noted that the worker's resignation was prompted by a change in his personal circumstances meaning that the worker was required to provide childcare on Monday and Tuesday. The worker had held himself available to work any shifts required from Tuesday night through to Sunday evening but for perfectly valid reasons, that request could not be accommodated by the employer. The employer stated that it had a duty to provide fair and equitable rostering for all staff as well as ensuring that the hospital was adequately staffed day in and day out, 24 hours a day, 7 days a week. Having recorded these matters, his Honour then continued: [87] I agree with the observations of Deputy President Gilchrist in Hines where he noted that in determining the question of reasonableness regard should be had to the personal circumstances of the worker. Although they may not be paramount they must be taken into account. [88] This is not a case where the worker's decision was prompted by folly or irresponsibility as discussed in Novello v Zinc Corporation Ltd (1988) 14 NSWLR 25; (1988) 4 NSWCCR 138. ... Adequate arrangements for appropriate childcare are a perennial problem confronting modern families. There was no challenge to the worker's evidence that there was no other reasonable alternative to arrange for the childcare other than for the worker to provide the care himself on Monday and Tuesday. Before finally resigning the worker explored with the employer all viable options to retain his job, including volunteering to make himself available to work any shift provided it did not fall on Monday or Tuesday. Whilst the situation is regrettable, particularly given the considerable compassion and flexibility displayed by the employer to accommodate the worker's return to work plan, I consider the worker's resignation in the circumstances was not an unreasonable rejection of suitable employment . 104 There are other similar examples in the field of workers compensation. In Johnson v Chubb Security Australia Pty Ltd (1998) 16 NSWCCR 549 it was held by Campbell CJ that it was not unreasonable to reject suitable employment where the offer of suitable employment was subject to an unreasonable condition, in that case, a requirement that the employee give up the security of permanent employment and take up suitable casual employment. 105 In relation to the use of the phrase "reasonably practical", the closely related phrase "reasonably practicable" has been given a deal of judicial attention. In the case of M38238/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 in relation to that phrase, the Full Court of the Federal Court stated: [65] The use in legislation of the expression "reasonably practicable" is not novel, and the authorities that discuss its use are numerous. In the authorities and in the Shorter Oxford English Dictionary , the word "practicable" has the meaning "capable of being carried out in action; feasible": see, for example, Uebergang v Australian Wheat Board (1980) 145 CLR 266 ; 32 ALR 1 ( Uebergang ) at CLR 305 per Stephen and Mason JJ; also Adsett v K & L Steelfounders & Engineers Ltd [1953] 2 All ER 320 at 321 per Singleton LJ; and Lee v Nursery Furnishings Ltd [1945] 1 All ER 387 at 389 per Lord Goddard. Whether or not the removal of an unlawful non-citizen is practicable seems to be largely, if not entirely, concerned with whether the removal is possible from the officer's viewpoint. The word "reasonably" in the expression "reasonably practicable" limits or qualifies what would otherwise be an almost absolute obligation: cf Marshall v Gotham Co Ltd [1954] AC 360 ( Marshall v Gotham ) at 373 per Lord Reid. The removal of a non-citizen may be practicable in the sense that it is feasible, but not "reasonably practicable" as required by s 198(6) of the Act. [66] In the context of s 198(6) of the Act, practicability and reasonableness may, on occasion, operate in opposing senses: cf Uebergang at 306 per Stephen and Mason JJ. Whether the removal of a non-citizen is "reasonably practicable", as distinct from merely "practicable", may direct attention to a range of considerations, including factors relating to the unlawful non-citizen facing removal, and the interests of third parties who may be directly affected (such as, for example, the interests of third party states).

[67] In R v Archdall and Roskruge; Ex parte Carrigan (1928) 41 CLR 128 at 136 ( Archdall ) Knox CJ, Isaacs, Gavan Duffy and Powers JJ remarked in a joint judgment that "[r]easonableness is relative, and must be proportioned to the circumstances of the case considered as a whole". Whether the removal of an unlawful citizen will be "reasonably practicable" in a particular case will depend upon all the circumstances, considered by reference to the statutory duty in s 198(6). 106 In Uebergang and ors v Australian Wheat Board (1980) 145 CLR 266, Stephen and Mason JJ (at 305) gave the word "practical" the same meaning as the word "practicable", that is, meaning "capable of being carried out in action, feasible" as per the Shorter Oxford English Dictionary.

Further, in Williams v The Queen (1986) 161 CLR 278 dealing with a criminal prosecution, Gibbs CJ stated (at 283):".... what is reasonably practicable in a particular case is a question of fact".

What is "practicable" may not be "reasonably practicable": Edwards v National Coal Board [1949] 1 KB 704; Marshall v Gotham Co Ltd [1954] 1 All ER 937. What did the award require of PRD officers? 107 Having conducted that wide ranging survey of the critical words used in the award, it is necessary to pay close attention to the various provisions agreed to by the award parties in order to attempt to understand the overall operation of their consent arrangements. This task is made a little more complex by the fact that the parties have chosen to incorporate the PRD Policy into the award so that it becomes a part of the award provisions (see Byrne v Australian Airlines Ltd (1995) 185 CLR 410 ). 108 To state that the Court is required to pay close attention to the terms of the award is not, however, to suggest that in interpreting its provisions the Court will draw fine lines of distinction or proceed with a keen eye for possible ambiguity but it does recognise that it is the terms that the parties have chosen that govern their ultimate interpretation. In relation to the provisions of cl 9 of the award, the following matters require comment: (a) clause 9.2 provides that it is the injured officer's responsibility to accept "a reasonable offer of a suitable police position". There appear to be two separate notions at play in this provision. Firstly, there has to be a "reasonable offer" and secondly, such offer relating to an identified "suitable" police position. This complete phrase or similar phrases are repeated throughout both the award and the policy and it appears therefore that the words were quite deliberately chosen and are not the result of an unhappy or infelicitous expression. The phrase in total seems to add another element when compared with provisions that refer simply to "suitable employment". Identifying a "suitable" police position does not necessarily mean that such a position constitutes a "reasonable offer". It is possible, for instance in the circumstances of Ms Bennett, that the offer of positions outside of the Orana LAC did not constitute a reasonable offer nor was it a suitable police position for the same reasons if the applicant's construction of the award is accepted. It may well be that a position is "suitable" in the sense that the person has the necessary skills and/or experience to perform the duties but that does not seem to fully accord with the Policy nor Inspector Salt's evidence that it is not necessary to have all those qualifications to obtain a PRD position so long as training and experience can, over time, equip an officer to perform the duties. Having regard to dictionary definitions of "suitable", it is a word capable of meaning not only fitted for but something that is appropriate to a person's character, condition, needs etc. The person's particular circumstances are therefore to be considered. On the evidence an officer, broadly speaking, is to have the base attributes for the position but a suitable position is not necessarily one that the officer can immediately undertake without further training. A "reasonable" offer arguably extends the provision or confirms the extended meaning of "suitable" in the phrase, and according to its normal English meaning involves the concept of being suitable in all the circumstances, acting in accordance with the dictates of reason or being rational, honest, equitable, fair, suitable, moderate and tolerable action. The word "reasonable" refers to having a direct relation to the subject matter arising between the parties, again suggesting a focus on personal circumstances. Here, the award, including the Policy, appears to focus on not only what the employer might regard as reasonable but encompasses a consideration of the relevant circumstances of the officer. Importantly, the provisions do not operate on the exercise of the Commissioner's power to transfer or place an officer nor does it operate simply on the basis that an officer can perform the role. These matters suggest that the parties intended that the entire phrase would operate in a wider context. Nevertheless, there is an obligation on the officer to accept a reasonable offer of a suitable police position that "may" include transfer to another location once such a position is identified. By use of the word "may", the award clearly indicates that transfer is not mandatory but it is a possibility: the provision does not operate on the basis that an injured officer must transfer to a new location if no other place is found. Under both the Policy and in accordance with Inspector Salt's evidence, the acceptance of a position must be not only agreeable to the officer but also agreeable to the LAC in which the position arises. This clause then goes on to state that a failure to accept one of three reasonable offers of a suitable position "will jeopardise any benefits or entitlements" yet "may" result in medical discharge. Here, the language is difficult. The failure of acceptance "will jeopardise" the benefits but only "may" result in medical discharge suggesting that it may be possible to refuse three such offers yet not be medically discharged. Continuing in employment would, however, result in no lump sum benefit being paid; (b) clause 9.3.1 provides that if an injured officer (being Hurt on Duty) is declared as suffering partial and permanent disability then "opportunities for placement in a suitable police position or as a permanent restricted duties police officer will be sought". Here, the award appears to make the distinction between a suitable police position and a position that has been identified as a PRD position. It appears to encompass the possibility that an injured officer could be placed in a police position if suitable for the injuries suffered by the officer (for example, front desk work) but that position does not have to be declared as a PRD position. This clause then proceeds to state that, with the consent of the officer, the officer can be considered for redeployment in an administrative officer's position and this appears to be a reflection of the provisions of the Police Act: this provision, however, having regard to the evidence and the content of the award and the PRD Policy, cannot be taken to draw a distinction between requiring consent to be redeployed as an administrative officer but being able to be directed to take up reasonable offers of a suitable police position. As earlier indicated, all the evidence as well as the provisions of the award and the policy operate on the basis that the officer has to consent to such a placement and there is no award provision for the Commissioner to step in and direct an officer to take up specified duties in a nominated location although that power is generally available to the Commissioner under the Act. The award appears to go to some lengths to establish a different, flexible and compassionate regime for injured officers; (c) clause 9.3.2. provides that if placement in a police position is not possible and an administrative position is not agreed to, then the employment "may" be terminated. This provision does not make the earlier distinction between a police position and a PRD nominated position but as a matter of fairness and logic, is likely to mean both. Again, the provision does not make it mandatory that termination follows the failure to agree to a police position or an administrative position but it is something that could happen. The provision does not indicate when it may be appropriate for an injured officer to remain in employment but clearly leaves open the possibility of such an occurrence. The clause then provides that in "such circumstances", meaning termination and subject to eligibility, the injured officer shall be paid a lump sum. Overall, this provision seems to address the position where all are agreed that there is no police or PRD position and if the officer is terminated then, nevertheless, subject to "eligibility" the officer will be paid the lump sum. The "eligibility" appears to refer to the mechanics of the provision rather than being a reference to participating in the rehabilitation scheme and taking mutual responsibility for identifying suitable police positions; (d) clause 9.4.1 provides that, in relation to an officer who receives an injury off duty, where it is not possible to return to pre-injury employment, the officer will be declared as suffering a partial and permanent disability and "opportunities for placement in a suitable police position or as a permanent restricted duties police officer will be sought". Here again, the provision draws the distinction between a suitable position and a PRD position; (e) clause 9.4.2 provides that if placement in a police position is not possible and there is no consent to take up administrative duties, the employment of the officer "may be terminated" and if terminated, shall be paid a lump sum payment as calculated. This reflects the Hurt on Duty provision in cl 9.3 but again the impossibility of placing the officer does not automatically lead to termination but that is an action that "may" be taken. There are slight differences in how these almost identical provisions are expressed but they should be treated as making the same provisions; (f) clause 9.5 provides that the objective of the Rehabilitation/Retraining programme creates mutual obligations, including obligations for every officer who suffers a permanent partial disability "to be placed in a suitable police position wherever reasonably practical". This clause again refers to only a suitable police position but must be taken to also cover a PRD position and introduces for the first time the placement in a suitable police position "wherever reasonably practical". As referred to earlier, the expression "reasonably practicable", a very similar concept, is not novel. The cases refer to the word "reasonably" in the expression as limiting or qualifying what could otherwise be an almost absolute obligation. Practicability and reasonableness may on occasions operate in opposing senses. The cases also refer to where a nominated subject is "reasonably practicable" as distinct from merely "practicable", that phrase may direct attention to a range of considerations, including factors relating to the person as well as the interests of other parties who may be directly affected and regard may need to be had to "all the circumstances". The use of this phrase reinforces the intention that the earlier sub-clauses are to operate on the basis of a wide consideration that must include the circumstances of the officer and that the award provisions are not confined to a simple analysis of whether the injured officer can perform the work (in the sense that the position is suitable) nor is it confined to a situation where only the employer's view of "reasonableness" is to be considered; (g) under cl 9.6 an injured officer can dispute a police opinion that no suitable position is available. This clause does not use the word "vacant" which is arguably a narrower concept. It is likely that the word "available" was used because, having regard to the provisions of the Act, the Commissioner is not only able to transfer officers but is also able to allocate duties to them. These powers, at least, cover the situation where, for example, there is no established "position" of front desk officer with a number of police officers being rotated almost on a daily basis through the work to be performed in that position: although the work is not attached to a position to which an officer can be appointed or is normally appointed, there is nevertheless police work to be performed and that work can be made available or shown to be available for the employment of a PRD officer. The ability to challenge the police opinion is also an indication that the police opinion is not the sole criterion, 109 In relation to the PRD Policy, the following matters require some comment: (a) in the introduction to the Policy it is stated that the Executive team has committed the organisation to provide suitable alternate duties for police officers who are no longer able to perform operational duties "wherever this is reasonably practical". This appears to be the origin of the phrase "reasonably practical" that appears separately in cl 9.5 as discussed above; (b) under the sub-heading "Policy Statement" it is stated that where it is not possible for an officer to return to pre-injury duties "all reasonably practical steps" will be taken "where appropriate" to find suitable alternate duties before consideration is given to the issue of medical discharge. Again, this provision adopts the phrase "all reasonably practical steps" but seems to qualify them with the words "where appropriate". It is likely that the words "where appropriate" are redundant and the phrase "all reasonably practical steps" covers what will be done in order to find appropriate employment for injured officers. Again, the use of this phrase indicates a wide range of considerations including the personal circumstances of the officer. This provisions also indicates that these steps will be taken before "consideration" is given to medical discharge, indicating that medical discharge need not necessarily follow the failure to find alternate employment (c) the Policy Statement also says that in accordance with its legislative obligations, the New South Wales Police is committed to assisting officers who are injured in the course of their duties in ways that facilitate full recovery and return to their pre-injury employment. A reference to "legislative obligations" seems to refer to workers compensation and rehabilitation obligations mentioned by Schmidt J and Kavanagh J in Stimson and Clifton respectively. This reference also suggests that in framing this policy, regard was had to those legislative obligations and that the framers of the Policy had in mind the similar concept of "suitable employment" as dealt with in that legislation. (d) under the sub-heading "Availability of duty types" there is a reference to a number of "duty types" within the organisation that potentially could be offered to a limited number of officers with permanent medical conditions. The reference to "duty types" re-affirms that a definite "position" need not be available so long as there are duties available. This part of the Policy then states that each case needed to be considered "on its individual merits" with an officer's skills, qualifications, aptitude and medical restrictions all to be taken into account when consideration was given to their suitability for placement on restricted duties. The specific operational requirements of individual commands were also to be given equal priority. This part of the Policy commences with a requirement that the individual's case is to be considered on its particular merits indicating that there are matters personal to the officer that should be taken into account. Other matters, such as the officer's skills, qualifications etc as well as medical restrictions are to be taken into account as well as the requirements of the Command. This phrasing suggests a wider consideration than only the skills of the officer. General duty types are then set out as a guide and the statement continues that it was recognised that some officers who had not previously undertaken "the types of duties" set out may need to undertake specialist or on-the-job training to adequately equip them to perform these roles. As part of its legislative obligations for staff injured in the course of their employment "the organisation is committed to providing reasonable opportunities for this to take place". Here, the concept of "reasonable opportunities" is introduced albeit in relation to training to equip officers for a position. This part of the Policy also confirms that a position can be "suitable" even if the officer may need to undertake specialist or on-the-job training to adequately equip them to ultimately perform the work. The Policy under this heading then continues, stating that it is also recognised that there are a number of specific roles that need to be performed at each LAC that might also potentially provide opportunities for placement of restricted duties officers. The identification of specific roles also suggest that there may be roles that are not specifically identified by reference to a position and that approach would be consistent with earlier provisions upon which comment has already been made. This part of the Policy then states that final placement decisions will need to be determined on a case-by-case basis and need to be agreed to by "all relevant stakeholders". The reference to a determination on a "case-by-case" basis suggests that individual circumstances are to be considered. This statement, however, suggests that an officer should not take up something unless it is agreed along with all relevant stakeholders, yet an officer who does not accept one of three reasonable offers of suitable positions runs the risk of forfeiting important benefits. The Policy later refers to the obligation of the injured officer to accept any reasonable offers made by the employee which may include transfer to another location. It is difficult in these circumstances to work out the ambit of the mutuality of the obligations, nevertheless the concept of mutuality points in the direction of considering all the circumstances of an officer's placement. (e) in specifying that there are to be up to a maximum of five PRD positions in each LAC, the Policy states that across the State there is potential for permanently restricted staff to perform "functions" that would otherwise have to be performed by fully operational police. Again the reference to "functions" suggest that a single established position need not be available but there may be circumstances where a function is to be performed, such as front desk duties, that can be performed day-in, day-out by the PRD officer in place of any number of officers who may have to perform those duties as well as full operational duties. (f) in the conclusion to the Policy, it is stated that the introduction of the Policy heralded a new era in the management of officers who were unfortunate enough to experience protracted periods of ill health or injury. It is then stated that the New South Wales Police is committed to ensuring "that all reasonable steps" are taken to facilitate the placement of permanently injured officers into suitable duties "wherever practical". That action not only maximised the potential of individual members of staff but also ensured that the expertise of such officers was not lost to the organisation. Implementation of the Policy would require goodwill by all affected parties. In this part of the Policy there is a reference to "all reasonable steps" being taken to place officers thus introducing another concept. The use of those words tends to confirm the view that a wider assessment is to be made as to the suitability and reasonableness of the placement and that includes a consideration of the particular personal circumstances of the officer as well as their abilities. The acknowledgement that implementation requires "goodwill" by all affected parties also has some suggestion about it that a broad based approach and not a narrow approach is being considered. 110 In relation to the Transfer Policy it is to be noted that personal preferences in relation to transfers are to be taken into account but the Policy warns that those preferences may not always be achievable and that the Police Force will give priority to the interests of the New South Wales community. There is a reminder that officers have undertaken to serve anywhere in the State. Nevertheless, the Policy and Inspector Salt's evidence confirms that the personal preference of officers is taken into account in relation to transfers. The evidence demonstrates that transfers are routinely granted to meet personal interests as well as the interests of the Police Force and that generally there are no forced transfers. There is nothing in the award to suggest that this flexibility is to be denied to a PRD officer seeking alternative duties. Was there a compliance with the award provisions? 111 In relation to the mutual obligations imposed under the award upon the officer and the Commissioner, the evidence satisfies the Court, firstly, that Ms Bennett fully participated in the rehabilitation and back-to-work programmes that were established for her benefit in an attempt to return her to full duties. There were a number of occasions recorded in the evidence where Ms Bennett spoke of wishing to return to full-time operational duties and how she did not find a lifetime of performing desk-bound duties attractive. To the extent that this attitude was criticised because of her permanent partial disability, it needs to be understood that Ms Bennett was not seeking to exaggerate her disabilities in order to achieve a payment under the award but quite to the contrary, she was asserting her capacity to return to full-time duties notwithstanding the fact that medical opinion was that she had a permanent partial disability. Her genuineness in this desire is accepted and her frustration understandable having regard to the quite lengthy period in which she performed rostered duties as a Constable prior to Commander Smith discovering that she had been Hurt on Duty and may not be able to undertake training, leading, ultimately, to Ms Bennett being placed on restricted duties. This was, therefore, not a case of Ms Bennett avoiding full duties nor was it a case of her acting inappropriately to unfairly secure a payout under the award. The Court accepts that Ms Bennett genuinely wished to remain in the Police Force but she appears to have become frustrated by the inability of the Local Area Command to find her appropriate duties and that undoubtedly led her to continue to assert her capacity to perform full duties even if suffering pain, needing to rest and undertaking continuing treatment such as physiotherapy. 112 Secondly, in relation to identifying suitable police positions for redeployment and given that she was financially and by family commitments tied to the Dubbo area, Ms Bennett did identify two positions that she regarded as suitable. One position, as Assistant Rostering Officer, was currently filled by another person but the position of Educational Development Officer was not being performed by anyone although her evidence was that it was a role performed at other stations but nobody was doing it at Dubbo. Ms Bennett's evidence was that she constantly searched the bulletin board but had been unsuccessful in finding a position in Orana LAC. Inspector Salt also recommended to Commander Smith that consideration be given to appointing Ms Bennett to the position of Brief Handling Manager or Domestic Violence Liaison Officer. That recommendation was rejected by Commander Smith because he declined to create further PRD positions within his area and also because it was said there was a person already filling the Brief Handling Manager's position. The Domestic Violence position, although vacant, was regarded by the LAC as unsuitable for a permanent restricted duties person because of the need to liaise with victims and offenders and being regularly placed in volatile and potentially dangerous positions. Importantly, in discussions concerning PRD positions with Ms Seaton, the Local Area Manager, Ms Bennett stated that she had no preferences. It is clear from the evidence that, apart from a bad, brief experience Ms Bennett had in relation to the position of Intelligence Officer, there were other positions that she would undertake as long as they were within the Dubbo region. On several occasions she outlined why it was not open to her to transfer outside the region, citing her financial commitment to the franchise business with her husband as well as the loans and commercial obligations flowing from that business and also family commitments. Inspector Salt said that he had received lengthy submissions about Ms Bennett's inability to leave the Orana LAC but nevertheless regarded her as having "fully co-operated" with the redeployment unit. Except for the issue of the rejection of positions outside the Orana LAC, Ms Bennett met her obligations in relation to fully participating in rehabilitation plans and in nominating positions within the region in which she was prepared to work. 113 In relation to Ms Bennett's obligations to identify suitable work, it is to be remembered that she expected to continue on desk duties if nothing else was available and it might be said, until something more suitable may arise within the region. It is true that on 24 October 2006 Ms Bennett had written to Inspector Salt expressing her frustration at not being able to settle the issue about her duties and she spoke about the negative comments and attitude she had experienced towards her in the region. Ms Bennett also said in that letter that she did not wish to undertake any duty unless it was within the capacity of a full operational position although she accepted the reality that she could not change the view that had been reached that she was permanently and partially incapacitated for those full duties. It was in that context that she spoke about only being offered a "desk job" which she had considered but was unwilling to perform. That letter, in fairness, needs to be put in the context of her previous efforts and the opposition of Commander Smith to nominate further PRD positions in the Orana region. In his evidence Inspector Salt accepted that there was nothing to prevent Ms Bennett continuing to perform this front desk work but it was completely up to the Local Commander where the PRD officer was to be placed: nevertheless, in the Inspector's experience, there could be a placement at the front desk. Consistent with Inspector Salt's view and Ms Bennett's expectation, in late September 2006 the Medical Discharge Review Panel deferred consideration of medically discharging Ms Bennett and recommended that she be offered the restricted duties role at Dubbo that she had been performing until that date. Apparently, Commander Smith did not accept that approach. In the evidence there was some suggestion that there had to be a particular position identified before it could be performed by a PRD officer. However, the Act and Regulations seem to operate on the basis that the Commissioner could classify the duties required to be performed and could allocate duties to be carried out by each member (s 8(3) of the Police Act 1990). It was accepted by Inspector Salt and Ms Seaton that the front desk duties performed by Ms Bennett were usually performed by police officers (although some civilians could perform that work) even though the work was performed on a rotating roster, possibly with a different officer performing the work each day. There seems to be nothing, however, preventing Ms Bennett from continuing in this police work. 114 The issue then becomes whether or not the positions drawn to Ms Bennett's attention constituted a "reasonable offer of a suitable police position". The Court is of the view that the position of Intelligence Officer in the Orana LAC, although reluctantly offered, was a position that met the definition and requirements of cl 9.2 of the award. Ms Bennett was assessed as being capable of performing the duties but had relied upon a brief two or three week period of relief in the position and the problems she encountered during that period as demonstrating the position to be unsuitable because she thought she was simply unable to perform the work. The Court accepts that the work was not simply a desk-bound job although there was such work involved including computer work. At the very least Ms Bennett had already performed data entry functions and had some basic familiarity with computers. Of more significance is Inspector Salt's evidence that he would never expect an officer to come straight off the truck and full operational duties and then fully perform the role of Intelligence Officer without the provision of training in that work. In his view the work was such that it could not simply be picked up in a week or two. It may have been the case that Ms Bennett was told little about how this position would develop to meet her concerns and so her state of knowledge of the position was limited (applying the approach in Fazlic) but that case was not attempted to be made out by the applicant. 115 Accepting, however, that the Intelligence Officer position in the Orana LAC was a "reasonable offer of a suitable police position" in accordance with cl 9.2 of the award, that is only one position while the award stipulates that a failure to accept one of three reasonable offers as per the Permanent Restricted Duties policy would "jeopardise" benefits or entitlements that may be payable under the award and may result in medical discharge. On at least two occasions Inspector Salt placed before Ms Bennett a number of positions outside of the Orana LAC as well as nominating the two communications positions in Tamworth and Newcastle. These positions were unacceptable to Ms Bennett because she regarded herself as being unable, on reasonable grounds, to leave the Orana LAC. During argument a point was made by Ms Bennett's counsel that none of these positions had in fact been offered to Ms Bennett because they all required an application to be made and depending on the nature of the available position, at least some form of selection process adopted. Inspector Salt indicated that he was confident that he could have obtained any of these positions for Ms Bennett but in particular the Communications position: his confidence reached the point that, in relation to the Communications position, if she was not successful initially he was prepared to take it to a higher level to ensure her success. Nevertheless, the award does require an "offer" to be made of a suitable position and merely drawing attention to vacancies would be insufficient to comply with the provisions of cl 9.2 of the award. There could only be a relevant rejection of the offer by an officer if the position was in fact offered. In the present case nothing of significance turns on the fact that there was no formal offer of these outside positions because Ms Bennett's approach at all times was that she would reject any such offer: her own actions prevented any "offer" being made. Broadly speaking, by her conduct, Ms Bennett, in substance, rejected several (and more than three) positions available outside the Orana LAC. The question then arises that, if the positions that were available outside Orana LAC were rejected, does that amount to a failure to accept "a reasonable offer of a suitable police position"? 116 Having regard to the totality of the award provisions and the Permanent Restricted Duties Policy the Court is of the view that, in Ms Bennett's circumstances, an offer of a position outside Orana LAC would not meet the requirement of "a reasonable offer of a suitable police position". An assessment of what would amount to "a reasonable offer of a suitable police position" cannot totally ignore the personal circumstances of the police officer. The award looks beyond the officer's skills, qualifications, aptitude and medical restrictions and although they must all be taken into account, in accordance with the Policy, also each case needs to be considered "on its individual merits" and that includes issues personal to the officer. In Ms Bennett's case this was no mere preference to stay in Orana LAC but in both a personal and financial sense, she was tied to staying in Dubbo. She had sought a transfer to the area because her husband had purchased a franchise business in which she was to work and it is likely that decision was influenced by being able to work in an area where close contact could be maintained with the aging parents of Ms Bennett and her partner. That transfer had been sought and was granted and then Ms Bennett had applied for permission to undertake secondary employment in that business, setting out the duties she would perform. The business appears to have been of some substance, employing up to 20 people and although there was some challenge as to whether or not it was a successful business, Commander Smith certainly described it as a "lucrative business". Having regard to the financial commitment to the business and Ms Bennett's personal involvement of up to 27 hours per week working in that business, in her particular circumstances it was not reasonable to offer a position outside the area. These were, properly understood, extensive ties to the area and were not capable of or likely to be quickly undone. The unreasonableness of treating the offers outside Orana as being suitable is underlined by Commander Smith's view that Ms Bennett already had suitable alternative employment, namely her lucrative franchise business and that view seems to have influenced him, at least in part, in not being prepared to identify any other PRD position for her. Commander Smith also wrongly concluded that, apart from her husband, Ms Bennett "had no other ties in the area". 117 The construction of the award that requires consideration to be given to the personal circumstances of the officer as well as their capacity to perform the duties is further to be derived from the following matters: (a) clause 1.2.1 of the award proclaims that the intentions and commitments of the award are to provide benefits on medical discharge in the event that an on-duty or off-duty injury results in the partial and permanent disability of a police officer as well as permanent and total disabilities. The award is, broadly speaking, designed to compensate an officer for the loss of a career, by inter alia, providing for the payment of a lump sum where suitable work is not reasonably available. It may be said that the award is tailored to the rehabilitation of the individual officer with regard to his/her individual needs, deficiencies and personality. Being an award designed to provide such a benefit, it is appropriate to adopt the principles of beneficial construction in order to attain that objective. In relation to this award the parties have reached a consent position whereby the officers are to make a financial contribution as well as the employer to provide a fund out of which these payments are to be made. The payments are made in relation to the important subject of officers being rendered unable to perform duties or full duties because of injuries received while in the Police Force. It was therefore an award provision designed to meet a particular and identified need of officers arising from the performance of their duties and their employment. It is accepted, however, that a beneficial construction must nevertheless recognise and give effect to the reasonable restrictions the parties have agreed upon for the payment of lump sums under the award; (b) the mutual obligations under the award make it clear that both parties have a role to play in giving effect to the award provisions and that it is not simply a matter of the Commissioner using his power under the Act and Regulations to transfer an officer to another location where they can perform permanently restricted duties. The provisions of the award amount to a recognition by the Commissioner that the rehabilitation and placement of officers who are Hurt on Duty requires special treatment necessitating amelioration of his overall powers of placing a police officer anywhere in the State and allocating any such duties as is deemed appropriate to that officer. If that were not so then the award would not have the provisions it contains but rather would operate upon reaching a certain point where the Commissioner merely decided, absent some agreement, that an officer should be placed at some location performing nominated duties regardless of the officer's desire to do so. The award, to the contrary, operates on the agreement of the officer and the Local Area Commands to accommodate an officer's disabilities by the performance of other than front line operational duties; (c) there is nothing in the Permanent Restricted Duties Policy that detracts from that position. The award incorporates that Policy although it is a document that, on its face, does not appear to be one whose existence is the result of consensus between officers, their Association and the Commissioner. Nevertheless, the policy speaks of improving the organisation's management of long term sick leave and committing the organisation to provide suitable alternative duties to officers who are no longer able to perform operational duties. Indeed, the Policy document is described as providing "a broad Policy framework" to facilitate the placement of PRD officers into suitable positions and career paths. While each case needed to be considered on its individual merits, skills, qualifications, aptitude and medical restrictions all had to be taken into account. Specific operational requirements of individual commands also needed equal priority. The Policy also talks of the Service's legislative obligations for staff injured in the course of their employment and the need for the organisation to be committed to providing reasonable opportunities to be placed in other positions. In this context it is to be recalled that Inspector Salt spoke of the Redeployment Unit, as its first task, identifying positions within the officer's LAC for potential redeployment and only after that to consider positions outside the LAC. Indeed, the award itself acknowledges that the failure to accept one of three reasonable offers of a suitable police position "will jeopardise any benefits or entitlements payable under this award and may result in medical discharge". It does not necessarily follow that there will be a medical discharge in such circumstances so long as there are duties that can be performed. Clause 9.3.2 provides that, if a placement in a police position is not possible and redeployment to an administrative office position is not agreed to by the officers, the employment "may" be terminated and if that does occur, subject to eligibility, a lump sum shall be paid; (d) the words "suitable" and "reasonable" are not words of art and are to be given their usual meaning. The word "suitable" extends to that which is agreeable or convenient to a person's inclination and deals with matters that are in agreement or accord, fitted for or appropriate to a person's character or condition and needs. The word is capable of encompassing both objective and subjective considerations and it is the context that will decide what meaning will be applied. The word "reasonable" involves the concept of not being excessive but being agreeable to reason or sound judgement, not being immoderate but being synonymous with what is rational, honest, equitable, fair and tolerable. As the Opera House Investment's case shows, the word "reasonable" is often declared to mean "reasonable in all the circumstances of the case". The issue then arises as to what issues are relevant to the case. Having regard to the context in which the award operates, it is clearly relevant to what is "reasonable" to take into consideration the personal circumstances of the officer. That is not to suggest that the mere preference of an officer would carry great weight. A single or unattached officer without ties of any kind to an area could not expect to be able to reject an offer of employment in another LAC merely because that officer would prefer to stay where they were. As the Policy contemplates, each case must be considered on its individual merits and the officer will have to demonstrate some personal circumstance of significance in order to be able to reject a position outside their local area and to have such an offer regarded as not reasonable. The individual merits, however, must include the personal circumstances of the officer; (e) in accordance with accepted canons of construction when dealing with awards, while the words are to be accorded their natural and ordinary meaning read as part of the whole document and in their context, nevertheless, they must not be interpreted in a vacuum devoid from industrial realities. That does not provide the Court with power to undertake a de facto arbitration and impose what it thinks is fair on the parties but here the context strongly favours a broad consideration of an officer's situation before they are offered positions which, if not accepted, may lead them to lose a potentially significant monetary benefit to which they have, partially, contributed; (f) although the Commissioner has power under the Act and the Regulations to direct employees where they are to perform their duties as well as to direct them as to what duties to perform, the evidence before the Court is that power is rarely used except for disciplinary purposes. The vast majority of transfers are not directed but result from applications such as that made by Ms Bennett for reasons stated, to be allowed to perform duties in the Orana LAC. That is a significant development and is part of the industrial reality and the industrial context in which the award was made. There is no indication in the award that this flexibility is to become unavailable to PRD officers, or is to be severely restricted. 118 The above approach is confined to an analysis of the terms of the award as adopted by the parties in the context of the subject matter, the objects of the award as stated in its preamble and how those words operate in the context of the Permanent Restricted Duties Policy. The construction of the award derived from that approach is also supported by reference to judgments, referred to earlier, given in a wider variety of circumstances than have been referred to in the above paragraphs. Those cases are not necessarily a primary source for construing the terms of the award but they do show the wide variety of circumstances in which a person's perception and individual situation will be considered when having regard to what is suitable. Perhaps of particular significance are the workers compensation cases that deal with the related matter of rehabilitation and also, what is suitable employment for the purposes of making calculations of what is properly payable by way of compensation. The judgment of Zelling AJ in James' case is a particularly strong statement of the need to take in into account the personal circumstances of employees and how simple humanity in a modern age requires that injured employees not be treated as mere chattels belonging to the employer. The award under consideration in this case arises in the context, as recognised by the Permanent Restricted Duties Policy, of legislative obligations imposed upon the Commissioner in relation to injured officers: that is a clear reference to workers compensation and rehabilitation obligations and it is not fanciful to conclude that the parties had in mind the operation of those provisions and what was "suitable" duties when they came to make this award and chose not to include a definition or a different definition of the words "suitable employment". There appears to be some consistency in the legislative schemes that look to "suitable" employment and they have been picked up in some award provisions and all appear to contemplate consideration of the personal circumstances of the employees. Overall, these cases give support to the view adopted by the Court in construing the award provisions. 119 It will be appreciated from the foregoing discussion that, although being dealt with in a different context, the decision of Zelling AJ in James deals with a closely related subject matter. It is to be noted that in James his Honour held that the term "suitable" in the phrase "suitable employment" extends to a consideration of all the circumstances of the employee as an individual, including family, finances and disruption that may flow from being required to move location to perform work. His Honour regarded "reasonable" and "reasonably" as merely underlining the philosophy of the Act. So approached, his Honour's emphasis was on the term "suitable" and work was not "suitable employment" if it did not take into account the personal circumstances of the employee. If this approach was adopted to the death and disability award, a "suitable" position would look at not only the skills and aptitude of the injured officer but would also look at all the circumstances of the officer, including family, financial and problems associated with the relocation of the work. A "reasonable offer" would simply underline this approach. However, it is possible that, in the award, the term "suitable position" is limited to a consideration of the qualification, age and aptitude type factors but that assessment is subject to further consideration as to whether, in all the circumstances (including those personal to the officer), the offer of such a "suitable position" would be a "reasonable offer". It is possible that a job is suited to the aptitude of the officer but the surrounding circumstances of it or its location are not and that, upon a proper assessment, the offer is not a "reasonable offer". The Policy Statement referring to providing suitable alternative duties "where this is reasonably practical" and being placed in a suitable position whenever "reasonably practical" and an officer being provided with "reasonable opportunities" for alternative duties, is to be treated as providing additional and cumulative award obligations and strongly suggest that a much wider test is contemplated in achieving the objects of the award than merely looking at the qualifications and ability of an officer to perform the job. In a sense, it may not matter which approach is adopted as they both lead to the same result such that there is no impediment to the application of a wider test as spoken of by his Honour in James and as adopted in New South Wales Workers Compensation cases in relation to a similar concept. 120 Although it is perhaps not strictly necessary for the purposes of deciding this case, it is appropriate to make some comments about the approach of the Orana LAC to Ms Bennett's predicament. The Permanent Restricted Duties policy is part of the commitment to ensure that all reasonable steps are taken to rehabilitate injured staff, initially back to their pre-injury employment, but if the injury proves to be permanent to seek other employment within the Police Force. In this way not only is an opportunity provided to officers to continue in the Police Force even though they are not capable of full operational duties but also the Police Force obtains the benefit of having trained and experienced police officers continuing to contribute in a variety of other roles. To achieve this end the Policy identifies a number of duties as potentially suitable for those who are placed on permanent restricted duties. Both the Policy and the award imposed mutual duties on the officer and the employer to identify possible suitable positions for redeployment. The Policy provides a general guideline that usually there would be no more than five restricted duty officers per Local Area Command in order to ensure that the High Visibility Policing Policy was not compromised. A figure of five such positions was not absolute and the number depended on other factors such as the availability of authorised positions, size, location and the individual circumstances of each LAC. Inspector Salt spoke of examples where more than five positions had been allocated to PRD officers. The Policy also stated that implementation of its provisions would require goodwill by all affected parties. Hopefully, the Policy would lead to improved efficiencies in the management of long term sick leave and a reduction in the number of officers seeking to "disengage from the organisation on health grounds". 121 The evidence shows that Commander Smith was resolute in declining to have another PRD position in the Orana LAC although there was only one such position, well below the general figure of a maximum of five referred to in the Policy. Correspondence passing between Commander Smith and Inspector Salt indicates that certainly there would be no addition to PRD duties to accommodate "this officer", being a reference to Ms Bennett. Commander Smith appears to have formed the view that suitable alternative duties were already available to her, namely, working in the "lucrative" business she operated with her husband. That view was irrelevant to the terms of either the Policy or the provisions of the award but appears to have been an operative factor in Commander Smith's decision-making process. In this respect it is to be noted that the Commander made attempts to cancel Ms Bennett's approval for secondary employment although it had been recommended and supported by other senior officers. 122 The Court has drawn attention to the words and context of the award, noting that duty types as well as established positions should be considered for PRD placement. The approach of Orana LAC, however, was too narrowly focused. Further, when the position of Domestic Violence Liaison Officer was raised by Inspector Salt it was rejected as unsuitable for a PRD officer because of the potentially dangerous duties of the position. There was no evidence of an analysis of this position or a consideration of what modification of duties would make it appropriate (as later occurred with the position of Intelligence Officer). 123 Although dealing with the history of failed treatment and rehabilitation programmes for Ms Bennett, Commander Smith's letter of mid-June 2006 to the Redeployment Unit also referred to the local workload and the fact that 54 police had been injured in the last year in relation to policing duties in a particular area. Ms Seaton also confirmed concern about the number of police not on full operational duties. The Policy recognised that the particular needs of each LAC are to be considered but the respondent did not call Commander Smith and there was no attempt made in the evidence filed to support a finding that the front line resources of the LAC were so stretched that it would compromise core police operations by having another position allocated to a PRD officer. Indeed, by late 2006 a further position, that of Intelligence Officer, had been identified as suitable for a PRD officer but only following the persistence of Inspector Salt's efforts. 124 Ms Bennett was counted as part of the total strength of 128 for the LAC and was performing work that other officers would normally perform but on one view, those other officers were able to be used in full operational situations and were thus being relieved of the front desk work. The respondent was well aware that it was Ms Bennett's case that it was reasonable for her, having regard to her personal circumstances, to be allocated work within the Orana LAC and that it was not reasonable or suitable for her to be placed in a position outside the Orana LAC. Having regard to the nature of that case, it would seem to be not only arguable but a strong point for the respondent if it was able to demonstrate that the resources of the LAC were so stretched that it was inappropriate to accommodate another PRD position. The respondent did not take that position, did not seek to establish that situation as part of its case, nor was Commander Smith called. It might well be said that, on that basis, it was open to draw the inference that such a case could not be made out. Having regard to the July 2006 letter of response sent by Inspector Salt to Commander Smith, the Court is not left to merely make inferences. 125 In light of Inspector Salt's frank evidence there is little doubt that, at the time Ms Bennett was under the management of the Unit, Inspector Salt had formed the view that Commander Smith was not complying with the requirements of the policy or the award. His lengthy July 2006 letter spelt out in chapter and verse Commander Smith's obligations and how seriously inadequate the response had been. The evidence in this case demonstrates not only a lack of commitment to the Policy but a failure to comply with the requirements of the award in finding a suitable position for a PRD officer by the Orana LAC. It is unfortunate for the good intentions and high aims of the Policy but Inspector Salt conceded that, even today, similar responses were received although he could understand a Commander's commitment to front line policing activities. Ultimately, the conclusion is open that the Orana LAC did not comply with its obligations under the award until the very limited and late offer was made regarding the position of Intelligence Officer: in this case, however, such a finding is not determinative of the application made by Ms Bennett. There may be cases in the future, however, where such a finding may be critical in determining entitlements under the award: LAC Commanders would be well advised to pay closer attention to the provisions of the award and to genuinely participate in attempting to identify suitable duties or positions for the placement of PRD officers. 126 As already indicated, the Court is satisfied that Ms Bennett has made out her case: she is entitled to a lump sum payment in accordance with the provisions of cl 9 of the award. This view is arrived at upon the proper construction of the award and it is not necessary to consider the medical evidence called by Ms Bennett attempting to establish her inability to perform the work of Intelligence Officer. Of course, that position was just one of three positions that the award required to be offered - all three positions had to meet the description of a reasonable offer of a suitable police position. On the approach adopted by the Court, only the Intelligence Officer position could meet that description and so Ms Bennett was entitled to be paid the lump sum available under the award on her medical discharge from the Police Force. 127 During argument the respondent indicated that the amount claimed in the application was likely to be inaccurate and would not fully comply with the provisions of the award and should the applicant succeed with this application, undertook to enter discussions with the applicant regarding the correct calculation of the amount due under the award. In those circumstances the Court requests the parties to confer and within seven days of handing down this judgment, file Short Minutes of Order to reflect the determination of the Court. If the parties are in disagreement as to the orders, they should notify my Associate and the matter will be listed for further consideration at a convenient time.

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