Chircop v Commissioner of Police; Lezaja v Commissioner of Police

Background

1. On the day after the Webb direction was issued, 31 August 2021, Deputy Commissioner Webb forwarded an email to various Commanders/Managers including Superintendent Heyward. That email contained the following: Subject: FW: Important information for NSWPF employees residing in the 12 LGA's of concern re: updated Public Health Orders [SEC=OFFICIAL] Good morning Commanders/Managers, In relation to yesterday's NEMESIS (see below) we have had some inquiries regarding officers/employees who reside and work in the same LGA, and whether they are still required to be vaccinated. Given the flexible nature of a police officer's duties, a police officer who lives and works within an area of concern will be required to have at least one dose of the COVID-19 vaccine or a medical contraindication certificate. The duties of a police officer may at any time require them to leave the boundaries of the LGA in which they work in. There are many reasons for this including that PAC boundaries do not align with LGA boundaries, talking to witnesses, pursuits or fulfilling a staffing order.
2. Following the issuing of the Webb direction referred to at [5] above, the applicants raised with their managers their willingness to work within the local government area in which they resided or to work from home. These proposals were not accepted.
3. By email dated 3 September 2021 to both applicants, Superintendent Heyward reiterated the contents of the Webb direction. Both applicants responded on the same day indicating that they would comply with the Webb direction to not attend the workplace from 6 September 2021 (this date was subsequently changed to 9 September 2021). Also, in compliance with the Webb direction, both applicants reluctantly nominated annual leave.
4. On 7 September 2021, the respondent mandated that all members of the NSWPF were required to be vaccinated against COVID-19 by nominated dates (subject to some exemptions).
5. On 15 September 2021 S/C Chircop purported to make a Notification of Industrial Dispute pursuant to s 130 of the IR Act to the Industrial Registrar. The essence of the "dispute" was that he and S/C Lezaja had been directed to not attend work and forced to take annual leave which was said to be contrary to cl 17.7 and cl 17.8 of the Crown Employees (Police Officers - 2017) Award and had, in effect, been suspended without pay. The relief claimed was reinstatement of used accrued annual leave and payment for the time spent away from the workplace. I listed the matter for mention before me on 21 September 2021 at which time I advised the parties that the matter could not proceed because individual employees, such as S/C Chircop, do not have standing under s 130 of the IR Act to notify the Commission of an industrial dispute. Three days later, on 24 September 2021, the Applications were filed.
6. Following the hearing on 1 October 2021 the Applications were again before me on 12 October 2021 when counsel for the respondent informed the Commission of his client's intention to issue the applicants with notices pursuant to s 181D(3)(a) of the Police Act notifying the applicants that the respondent was considering making an order for their removal from the NSWPF for their "apparent refusal to comply with lawful orders" (Notices). The Notices were signed by the respondent on 28 October 2021 and their existence was confirmed by counsel for the respondent at a further directions hearing on 1 November 2021. The Notices were subsequently served on the applicants.
7. The applicants then decided to get vaccinated against COVID-19 and the respondent did not proceed further against them under s 181D of the Police Act but recorded an adverse finding against both of them pursuant to s 173(2) on 7 February 2022. The applicants had returned to work on 3 November 2021.
8. At a further mention of the matters on 24 January 2022, the applicants indicated to the Commission that they wanted to proceed with the Applications on the basis of contesting the direction to them to not attend the workplace and the requirement that they utilise accrued leave during the period between 6 September and 3 November 2021. Directions were made for the filing and serving of evidence and outlines of submissions and the Applications were listed for hearing on 7 April 2022.

Case for the applicants

1. Both applicants filed witness statements annexed to which were volumes of email correspondence between themselves and various managers following the issuing of the Webb direction on 30 August 2021. An analysis of that material discloses that both applicants were resistant to becoming vaccinated against COVID-19 and put forward various proposals which would allow them to continue to work, such as working within the LGA where they resided or working from home. These proposals were not accepted by police management. In some of the material annexed to Superintendent Heyward's affidavit, which is dealt with further below, it is stated that, in some of the exchanges between the applicants and their managers prior to 3 September 2021, the applicants had indicated an intention to attend the workplace unvaccinated after 6 September 2021 in defiance of the Webb direction. Neither applicant denied that this had occurred.
2. Because it is central to the applicants' case, I have set out below in full Superintendent Heyward's email to them of 3 September 2021 (Heyward email): Subject: Direction under cl8 Police Regulation 2015 - FW: Your compliance with requirement issued by DCOP Webb on 30/8/2021 in addition to new PHO from 6/9/2021 [SEC= OFFICIAL:Sensitive, ACCESS=Presonal-Privacy] Dear Jared/Bobby, This is a formal direction under cl 8 of the Police Regulation 2015 to comply with the direction of Deputy Commissioner Corporate Services. Brief Background It has come to my attention that you are considering to not comply with the direction outlined by Deputy Commissioner Webb, dated 30 and 31 August, 2021 (included in this email chain). Deputy Commissioner Webb's direction From 6 September 2021, NSWPF employees who reside in an area of concern, that have not had at least 1 dose of a COVID-19 vaccination/have not been issued with a medical contraindication certificate will not be able to attend the workplace. These employees will be required to nominate a form of accrued leave as COVID Special Leave is not applicable. Directions You are directed to comply with the following: * If you reside in an area of concern and have not had at least 1 dose of COVID-19 vaccination/have not been issued with a medical contraindication certificate, you are not to attend the workplace (any workplace); and * nominate a form of leave to be taken; and * respond by way of return email acknowledging the above direction. Please be aware that failure to comply with this direction may result managerial action/consequences. It you would like to discuss further, please do not hesitate to contact me on the numbers below. If you need assistance in booking your COVID-19 vaccination, please see previous emails circulated by A/Insp Gunn. Just a reminder that EAP and peer support officers are available for any welfare concerns you may have. Regards,
3. In their written submissions, the applicants contended that, as a result of their failure to promptly nominate a form of leave to be taken after the publication of the Webb direction on 30 August 2021, Superintendent Heyward commenced "Management Action" and the Heyward email constituted "notice of an 'order' to the Applicants" that "arises from perceived misconduct or unsatisfactory performance by the Applicants" and is, therefore, "reviewable action" within the meaning of s 173 of the Police Act.
4. The applicants then expanded on this submission and cited Regan v Commissioner of Police [2015] NSWIRComm 1028, a decision of Newall C in which the Commission cited the Full Bench decision in Commissioner of Police v Skelly [2010] NSWIRComm 18 in support of the proposition that "[a]n assessment of whether action taken by the Commissioner was under ss 173 and 174 is not to be determined entirely by the labelling of that action by the Commissioner. Objective factors must also be taken into account to ascertain the intention and effect of the order" (Skelly at [56]).
5. The applicants point to the "significant financial loss" they have suffered "as a direct consequence of the Management Action taken against them by Superintendent HEYWARD" being the loss of their accrued annual leave which would otherwise have been available to be paid to them on termination of employment. This financial loss caused "the relevant Management Action to fall within the definition of Reviewable Action".
6. The written submissions of the applicants then proceeded on the basis that the "Management Action" was "reviewable action" within the meaning of s 173 of the Police Act, to contend that it was beyond power; was taken with or without appropriate delegation; was non-compliant with the provisions of s 173 and, therefore, "unlawful in nature"; was non-compliant with certain provisions of the Crown Employees (Police Officers - 2017) Award; and was, even if not beyond power, at the very least, harsh, unreasonable or unjust. Because of the determination I have reached in this matter, it is unnecessary for me to deal with these contentions in this decision and I do not propose to do so.
7. The applicants also relied on written submissions in reply to the respondent's written outline of submissions which I deal with below. The applicants' reply submissions essentially restated aspects of their submissions in chief so I haven't found it necessary to deal with them separately.

Case for the respondent

1. The respondent relied on an affidavit affirmed by Superintendent Heyward. In her affidavit, Superintendent Heyward outlined the background to the proceedings commencing with the Webb direction.
2. Annexed to Superintendent Heyward's affidavit were a number of email exchanges involving the applicants and their managers.
3. On 1 September 2021 S/C Chircop sent an email to Chief Inspector Tara Norton, copied to Chief Inspector Pauline McCann, which contained the following: I propose to continue working in my regular employment role at my regular workplace location at Mt Druitt Police Station, on and from Monday 6 September 2021, in full compliance with relevant legislative provisions. Consequently, it will not be necessary for me to observe a period of leave from the workplace on and from Monday 6 September 2021. As such, I do not propose to nominate any form of accrued leave for rostering purposes.
4. On 1 September 2021 Sergeant Callie Elwin sent an email to Chief Inspector McCann which contained the following: I have spoken to Jared Chircop and he has advised me that he does not want to answer any questions in relation to his vaccination status. I asked him what his plan is for Monday and he said the cant see anything in the health orders which would prevent him from coming to work on Monday and that he is ready, willing and able to work. I have spoken to Bobby and he has advised me that the is ready willing and able to work and is awaiting advice from A/Insp Gunn on what location he should attend within his own LGA. I don't believe he intends to turn up at work on Monday without some direction from Senior Management of where he should attend but he is adamant he does not consent to being placed on any form of leave and intends to call each morning to advise he is ready for work and ask to be allocated work to do at home or to attend a police location within his LGA.
5. Chief Inspector McCann forwarded this email to Superintendent Heyward shortly after she received it with a covering email which contained the following: Given the below email do you want me to give both Jared and Bobby a direction to not attend the workplace. Bobby is talking about turning up at either Merrylands or Granville (in Cumberland LGA) I was copied into A/Insp Gunn's email to Bobby yesterday afternoon so I am aware of what he was advised. I can't have them both attending a workplace in their own LGA which is not a prosecution office. I'd be happy to receive your advice on this situation.
6. It was the content of these emails which prompted Superintendent Heyward to send the Heyward email to both applicants.
7. Superintendent Heyward's affidavit then dealt extensively with the reasons behind the issuing of the Webb direction and the Heyward email, including the respondent's work, health and safety obligations, as well as the events which occurred after 3 September 2021. Because of the determination I have made it is unnecessary for me to canvass this material and I do not propose to do so.
8. The respondent also relied on a written outline of submissions. The primary submission of the respondent is that the Commission lacks jurisdiction in these proceedings because the applicants have not been subject to any order for reviewable action within the meaning of s 173 of the Police Act which is necessary to enliven the Commission's jurisdiction under s 174. The Heyward email cannot be characterised as an order for reviewable action made pursuant to s 173.
9. In the respondent's submission, the Heyward email was reinforcing the Webb direction and was issued for operational purposes, including health and safety obligations, to ensure compliance with the Webb direction. This submission was then the subject of extensive elaboration.
10. The respondent also made submissions in the alternative, in the event that I rejected their primary submission. I do not find it necessary to deal with these alternative submissions.

The hearing

1. At the hearing on 7 April 2022 neither applicant was cross-examined on their witness statements which were tendered into evidence without objection and marked as exhibits.
2. Superintendent Heyward, whose affidavit was also tendered into evidence and marked as an exhibit, was cross-examined at some length by both applicants. Nothing emerged during that cross-examination that impacted on those aspects of Superintendent Heyward's evidence on which I propose to rely.
3. Short oral submissions were put by the parties which did not travel in any relevant way beyond their written submissions.

The legislation

1. Section 173 of the Police Act relevantly provides as follows: 173 Commissioner may take action with respect to police officer's misconduct or unsatisfactory performance (1) In this section - non-reviewable action means action referred to in Schedule 1. reviewable action means action referred to in subsection (2), other than non-reviewable action. (2) The Commissioner may order that the following action be taken with respect to a police officer who engages in misconduct - (a) a reduction of the police officer's rank or grade, (b) a reduction of the police officer's seniority, (c) a deferral of the police officer's salary increment, (d) any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate.
2. Section 174 of the Police Act is in the following terms: 174 Review generally (1) A police officer in respect of whom an order for reviewable action is made under section 173 may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the order is beyond power or is harsh, unreasonable or unjust. (2) An application may be made on behalf of the police officer by an industrial organisation of employees. (3) An industrial organisation of employees may make one application on behalf of a number of police officers in respect of whom orders for reviewable action have been made at the same time or for related reasons. However, this subsection does not prevent the Commission from hearing a number of applications together or individually. (4) An application may not be made by or on behalf of a police officer more than 21 days after the date on which written notice of the making of the order to which it relates was served on the police officer. (5) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant, for inspection and copying, all of the documents and other material on which the Commissioner has relied, or to which the Commissioner has had regard, in deciding to make the order to which the application relates.
3. For completeness, cl 8 of the Police Regulation 2015 is in the following terms: 8 Performance of duties by police officers (1) Police officers are to comply strictly with the Act and this Regulation and promptly comply with all lawful orders from those in authority over them. (2) In particular, a police officer is required - (a) to serve wherever the officer is duly directed, and (b) to perform such police duty as may be duly directed, whether or not during the officer's rostered hours of duty.

Determination

1. The starting point for consideration in this matter is the Webb direction which was issued by Deputy Commissioner Webb on 30 August 2021 to all members of the NSWPF but with particular relevance to those residing in the 12 Local Government Areas (LGAs) that had been identified in the Public Health Orders as "areas of concern", which included the LGAs where the two applicants resided.
2. The relevant part of the Webb direction is set out at [5] above and has two essential elements which I paraphrase in terms relevant to these proceedings: 1. (1) From 6 September 2021 unvaccinated officers who reside in an area of concern will not be able to attend the workplace; and 2. (2) Those officers will be required to nominate a form of accrued leave in order to continue to be paid.
3. On any view, neither of these elements of the Webb direction could constitute an order for reviewable action, especially given the wide dissemination of the Webb direction. Further, it is not part of the applicants' case that the Webb direction is an order for reviewable action.
4. The legality of, as the applicants put it, being suspended without pay for being unvaccinated and the issue as to whether being "forced" to use their accrued annual leave is contrary to provisions of the relevant award are not matters before the Commission in these proceedings. They may be matters that can be agitated in another jurisdiction but this case is only about whether what was done to each of the applicants constituted an order for reviewable action pursuant to s 173 of the Police Act.
5. The next matter for consideration is the Heyward email which was sent by Superintendent Heyward to the two applicants on 3 September 2021 (at [18] above). The applicants' case depends entirely on the Commission accepting that this email is an order for reviewable action within the meaning of s 173 of the Police Act.
6. It is clear from the terms of s 173 that it is a statutory provision intended, inter alia, to enable the respondent to take disciplinary action as set out in s 173(2) against a police officer with respect to that officer's misconduct. Subsections 173(2)(a)-(c) have no relevance to these proceedings. Accepting that Superintendent Heyward had the appropriate delegation from the respondent to make an order under s 173 as she stated in her affidavit, the only way that the applicants can succeed in this matter is if the Heyward email can properly be regarded as coming within scope of "any other action (other than dismissal or the imposition of a fine) that [Superintendent Heyward] considers appropriate" with respect to the engagement in misconduct of the applicants (s 173(2)(d)). Clearly, the Heyward email cannot be so regarded.
7. The description of the email by Superintendent Heyward as "a formal direction under cl 8 of the Police Regulation 2015 to comply with" the Webb direction is slightly misleading. Clause 8 is not the source of authority for senior officers to give "lawful orders" to subordinate officers but, rather, imposes a statutory obligation on officers to "promptly comply with all lawful orders from those in authority over them". I take Superintendent Heyward's reference to cl 8 as a statement to the applicants that they have a statutory obligation as police officers to comply with the Webb direction. This of itself can in no way be regarded as "any other action" as contemplated by s 173(2)(d) of the Police Act.
8. The next aspect of the Heyward email that requires consideration is the reference to it having come to Superintendent Heyward's attention that the applicants "are considering to not comply" with the Webb direction. This was referred to by the applicants in their reply submissions as "the perception of misconduct, or even the perception of future misconduct" which "is captured by the provisions of s 173". I disagree. The language of s 173(2), specifically "a police officer who engages in misconduct", can only be referrable to past or present misconduct. The notion that a police officer may be disciplined for something the officer might be considering but hasn't yet done is perverse. One obvious reason is that it might never happen which is precisely what occurred in this case. This aspect of the Heyward email simply identifies Superintendent Heyward's motivation for sending it to the applicants, which was to prevent misconduct from occurring, not to discipline the applicants for engaging in misconduct. It achieved its purpose.
9. What then follows is headed "Deputy Commissioner Webb's direction" and is no more than a restatement of the Webb direction, the essential elements of which are set out at [41] above. Superintendent Hayward has added nothing to these essential elements.
10. Under the heading "Directions", Superintendent Heyward directs the applicants to comply with the Webb direction. A direction to comply with a direction given by a Deputy Commissioner of police cannot properly be characterised as an order for reviewable action. The additional direction to "respond by way of return email acknowledging the above direction" does not alter the character of the direction.
11. Lastly, the reference to potential "managerial action/consequences" in the event of non-compliance, again, does not alter the character of the direction but does no more than put the applicants on notice of what might happen if they fail to comply.
12. The Heyward email, whether considered as a whole or broken down into its different parts, does not constitute an order for reviewable action with respect to a police officer who engages in misconduct. It follows that the is no order made pursuant to s 173 of the Police Act before the Commission. As a consequence, the Commission lacks the jurisdiction to deal with the Applications under s 174.
13. If it were otherwise, it would mean that the applicants, having resisted the Webb direction which caused them to be issued with the Heyward email, would be entitled to pursue their Applications under s 174 of the Police Act and seek a remedy under s 177, whereas every other police officer and employee who complied with the Webb direction without protest would not. Such an outcome would be perverse and not one that this Commission would countenance.
14. The Applications must be dismissed.

Orders

1. I make the following orders:
2. The Form 4A Notice of Appeal - Public Sector Discipline filed in the Office of the Industrial Registrar by Jared Chircop on 24 September 2021, which has been taken to be an application made pursuant to s 174 of the Police Act 1990, is dismissed.
3. The Form 4A Notice of Appeal - Public Sector Discipline filed in the Office of the Industrial Registrar by Bojan Lezaja on 24 September 2021, which has been taken to be an application made pursuant to s 174 of the Police Act 1990, is dismissed.
4. These proceedings are concluded. John Murphy Commissioner

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: 21 October 2022