Bowes v Commissioner of Police, New South Wales Police Force

Approach

1. The approach to determining applications made under s. 181F of the Act is well settled and is as follows: 1. Consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force (the "NSWPF"); 2. consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust; and 3. consider the case presented by the Commissioner in answer to the applicant's case.
2. Section 181F of the Act places the burden of proof on the applicant to establish that the removal was harsh, unreasonable or unjust. In some cases, this may be satisfied by the applicant casting sufficient doubt on the Police Commissioner's reasoning process (Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236; 299 IR 314 at [84]).

The Reasons

1. The grounds relied upon by the respondent to issue the Order are as follows: I am satisfied that there are reasonable grounds to conclude that you have deliberately chosen not to comply with the direction of former Commissioner Fuller, APM, dated 7 September 2021 and my direction issued on 25 September 2021. In particular, it appears that you have:

• failed to receive one or both dose(s) of a COVID-19 vaccine within the specified timeframe; and / or
• failed to provide evidence of your vaccination status. In the circumstances, I find that your conduct was contrary to the Police Act 1990, the Police Regulation 2015, the WHS Act and the NSW Police Force Code of Conduct and Ethics.

1. The Order particularises the alleged contraventions of the Act, the Regulations, the WHS Act and the Code of Conduct.
2. In the second last paragraph of the Order, the respondent makes the following finding: "You have clearly breached the New South Wales Police Force Code of Conduct and Ethics"
3. The Order then concludes by informing the applicant that she has been removed from her position as a police officer on the basis that the respondent has determined that she has lost confidence in the suitability of the applicant to remain a member of the Force.

Applicant's case

1. The applicant's principal submission was that the Dismissal is harsh, unreasonable or unjust as the Direction was not reasonable. However, she rightly conceded that the Direction was lawful.
2. The applicant relied upon the following two contentions in support of the submission that the Dismissal was unreasonable: 1. The applicant although not vaccinated at the time of the dismissal, posed no threat or risk at the workplace due to the fact that she was off work; and 2. On repeated occasions the applicant had expressly undertaken to obtain the COVID-19 vaccination prior to her return to work.
3. The applicant submitted, with reference to the decision of Dixon J in The King v Darling Island Stevedoring and Lighterage Company Limited: Ex Parte Halliday and Sullivan (1938) 60 CLR 601, the nature of the employment and the context in which the work is performed should be looked at in determining whether a direction is reasonable.
4. The applicant then went on to submit that the main reason for the introduction of the Direction was the nature of the work performed by Members of the Force. On that basis it was submitted that the Direction was unreasonable in its' application to her as an individual as at the date of the Dismissal as she was not performing any duties.
5. As to the second ground, the applicant advances that this is part of the contextual background in which the Commission should take into account in finding that the Direction was unreasonable.
6. There also was a submission, to the effect, that the applicant in any event had not disobeyed the Direction, given her alleged commitments to become vaccinated prior to returning to duties and that the Direction had been varied by Mr Fenwick on 7 October 2021 in the form of the temporary exemption.

Respondent's Case

1. The respondent's primary submission was that the Direction need only be lawful and not reasonable. In support of this contention the respondent pointed to the scheme of the Act and the decision of the Full Bench of Queensland Industrial Relations Commission in Brassell-Dellow & Ors v State of Queensland (Queensland Police Force) & Ors [2021] QIRC 356 and the Supreme Court of Western Australia in Falconer v Commissioner of Police (No 4) [2022] WASC 271.
2. In the alternative, the respondent submitted that the Direction was reasonable.
3. The respondent submitted that the task of determining whether a particular direction is reasonable involves an assessment of proportionality of all the circumstances on a case by case basis, including whether there is a logical and understandable basis for the direction, the nature of the particular employment, the established usages affecting the employment, the common practices that exist and the general provisions of any instrument governing the relationship including consideration of obligations in the Work Health Safety Act 2011 (NSW) (the "WHS Act").
4. In applying the above determinative process to the Direction, the respondent made the following submission: Having regard to the overwhelming health and safety rationale which underpinned the Direction, partnered with the urgent increase to the safety risk, there was a logical and understandable basis for the vaccine mandate. The NSWPF, as an integral public sector and law enforcement agency, needed to maintain consistency across operational functions and ensure their ongoing ability to provide services to the community
5. Furthermore, the respondent submitted that the time for determining whether the Direction was reasonable was on 7 September 2021 and 25 September 2021 and not at the time of the Dismissal.
6. As to the alleged variation to the Direction, the respondent denied that there was such a variation and that in any event, the applicant had failed to comply with the amended variation which required the applicant to become vaccinated from 31 December 2022.

Consideration

1. Given the applicant's concession regarding the lawfulness of the Direction, the principal matter for determination is whether the direction need also be reasonable and if so, was it reasonable.
2. The Order relies upon a contravention of point 5 of the Code, which is in the following terms: An employee of the NSW Police Force must comply with any lawful and reasonable direction given by someone in the NSW Police Force who has authority to give the direction. As an employee you will, from time to time, be subject to direction from others. Compliance with lawful and reasonable directions is essential to ensuring the NSW Police Force operates safely and effectively.
3. In Welch v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1002 ("Welch"), I determined the Direction needed to be both lawful and reasonable as the respondent in that matter, had in part, relied upon a contravention of point 5 of the Code.
4. In this matter, the respondent has not persuaded me, that I should not follow the approach in Welch that the Direction needs also to be reasonable. However, this approach would have been different had the respondent not relied upon an alleged contravention of point 5 of the Code or some other ground that was based on a failure to follow a direction which was both lawful and reasonable.
5. I have previously determined that the Direction as it applies to members of Force was both lawful and reasonable in Welch and Ford v Commissioner of Police, NSW Police Force [2023] NSWIRComm 2023.
6. The argument advanced by the applicant, is somewhat different to that advanced in Welch and in Ford, in that it is was not argued that the Direction was not reasonable as it applied to all members of the Force, rather it was not reasonable in that the way it applied to the applicant at the time of the Dismissal. This argument, properly construed, is not that the Direction is not reasonable, rather, it is that the Dismissal was unreasonable because the respondent based the Dismissal on the applicant's failure to abide by the Direction, in circumstances where the applicant did not pose a risk as she was not at the workplace and her undertaking to become vaccinated before returning to work.
7. I reject the applicant's submission concerning her absence from the workplace and not being a risk, as a basis for a finding that the Dismissal being unreasonable. It fails to take into account the consistent application of the Direction to all members of the Force and the applicant's conduct in relation to the Direction.
8. In relation to the exemption, under cross examination, the applicant admitted that she had not commenced the fertility treatment that had formed the basis of her request for an extension for compliance with the Direction. Furthermore, she conceded that none of the medical practitioners she consulted regarding fertility treatment had indicated it was unsafe to receive a COVID-19 vaccine whilst undertaking the treatment.
9. The applicant did not inform the respondent that she had not commenced the fertility treatment and as at the date of the hearing, she was still not compliant with the Direction.
10. Turning to the undertaking made by the applicant to become vaccinated, given the applicant's approach to the Direction prior to the Dismissal, including the provision of what was a misleading basis for seeking an extension, I have no confidence that the undertaking would be honoured.
11. The applicant has undertaken an approach which is clearly designed to avoid compliance with the Direction, and she will continue to do so.
12. In all the circumstances, the applicant has not made out a case that the Dismissal was harsh, unjust and/or unreasonable and accordingly I make the following order: 1. The application is dismissed.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 May 2023