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".