Commissioner of Police v Danger

Industrial Relations Commission (NSW)|2022-06-08

DECISION

Moana Danger was employed in the New South Wales Police Force as a Customer Services Representative. Her employment commenced on 27 August 2018. She worked at the Tuggerah Centre Police Link Command.
On 7 September 2021 the Commissioner of Police ("Police Commissioner") issued a direction titled "Direction - Mandating of COVID-19 Vaccinations - Protecting the health and safety of NSWPF and the broader NSW community" ("Direction"). The Direction relevantly provided: "1. From the date of this document, applicable to all members of NSWPF (officers and administrative employees), I direct that a member of NSWPF cannot perform any duties unless: a. if the duties are performed on or after 30 September 2021 the member has received at least 1 dose of a COVID-19 vaccine; and b. if the duties are performed on or after 30 November 2021 the member has received at least 2 doses of a COVID-19 vaccine. 2. If required by a member's manager, supervisor or Commander, a member must provide vaccination evidence."
Also on 7 September 2021 two "Information Collection Notices" were issued by the NSW Police Force. One was titled "Information Collection Notice - COVID-19 Vaccination Information - Voluntary" ("Voluntary Collection Notice"). It relevantly provided: "If you have received the COVID-19 Vaccination, you are requested to provide the NSWPF with a copy of your immunisation history statement as recorded on the Australian Immunisation Register. … You have not been directed or required to provide your vaccination information."
The second Information Collection Notice was titled "Information Collection Notice - COVID-19 Vaccination Information in response to COVID-19 Vaccination Mandate direction" ("Mandatory Collection Notice"). It relevantly provided: "You are required to provide the NSWPF with a copy of your immunisation history statement as recorded on the Australian Immunisation Register, or a copy of a medical contraindication certificate ('vaccination information'). … You must provide your vaccination information if required to do so by your manager, supervisor or Commander. Failure to provide your vaccination information may result in management action and affect your eligibility to work under the NSWPF's user charges scheme." (Emphasis in original)

The Appeal

On 23 March 2022 the Police Commissioner filed an Application for Leave to Appeal and Appeal from the Decision ("Appeal"). The Appeal included the following: "G. Reasons why leave to appeal should be granted: (a) It is in the public interest that the Full Bench determine authoritatively whether a direction by an employer to provide reasonable evidence of vaccination against COVID-19 by a certain specified date is a lawful and reasonable direction as there are likely to be other cases where NSW public sector employers have given similar directions which have not been followed and resulted in dismissal. (b) It is in the public interest that the Full Bench determine authoritatively whether an employee's decision to resign which had not been made in the heat of the moment and was made in response to decision [sic] not to comply with a lawful and reasonable direction by the employer to provide reasonable evidence of vaccination against COVI-19 by a specified date was made voluntarily rather than at the employer's initiative. H. Grounds of the appeal are: (a) The Commissioner erred in concluding the Appellant had made contradictory directions to the Respondent to provide a vaccination history statement. (b) The Commissioner erred in finding that the Respondent had been stood down by the Appellant without pay. (c) The Commissioner erred in finding that the Appellant was the real and effective initiator of the Respondent's termination of employment. (d) The Commissioner gave inadequate reasons for his decision that the Appellant had terminated the Respondent's employment and erred by failing to address each substantive submission advanced by the Appellant. I. Relief claimed: (a) The order dismissing the Notice of Motion be quashed. (b) In lieu of the order made, the Full Bench make the orders sought in the Notice of Motion by determining that the Commission lacks jurisdiction to hear and determine the Respondent's claim on the basis that the Appellant had not dismissed the Respondent and dismissing the Applicant [sic - Application] for want of jurisdiction; …"
The Appeal was heard on 8 June 2022. The Full Bench had the benefit of comprehensive written submissions from the parties, supplemented by oral submissions made during the hearing by Michael Seck of counsel, who appeared for the Police Commissioner, and Ms Danger, who was self-represented.
During the hearing, Ms Danger sought leave to file further submissions in respect of the authorities referred to in a list of authorities provided by the Police Commissioner to the Full Bench. Leave was granted to Ms Danger to "file and serve a further outline of submissions, confined to any submissions [Ms Danger wished] to make in respect of the list of authorities". [1] Directions were made for the filing of such submissions by Ms Danger and for any submissions in reply from the Police Commissioner.
Consistent with those directions, the Commission received further submissions from Ms Danger on 22 June 2022. The Police Commissioner filed submissions in reply on 6 July 2022.
In her submissions in reply, the Police Commissioner contended that parts of Ms Danger's further submissions were beyond the scope of the leave granted on 8 June 2022 or included "new substantive arguments, advanced for the first time in response to either the oral arguments by the Appellant at the hearing of the Jurisdictional Appeal and/or questions posed by the Full Bench". [2] There is force to these contentions. We have considered Ms Danger's further submissions only to the extent that they properly arise from the appeal currently before the Full Bench.
In determining the appeal we have had regard to the fact that Ms Danger is not a lawyer and is self-represented. That said, in her written and oral submissions on the appeal, Ms Danger demonstrated a solid grasp of the matters requiring determination and was able to present her case cogently and fully. She was a capable advocate. This impression was reinforced by our review of the case she presented before Commissioner Murphy.

Relevant legal principles to apply on appeal

Pursuant to s 188 of the Act, an appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.
An appeal to a Full Bench "is not by way of a new hearing" (s 191(1) of the Act) and the Full Bench "cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received" (s 191(3) of the Act).
The principles to apply to the grant of leave to appeal are well-established. They were summarised in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 at [10]-[11], in passages that have been cited in numerous subsequent Full Bench decisions. It is not necessary that they be reproduced or further paraphrased in this decision.
We also have regard to the observations of the Full Bench in Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 at [12]-[14]. Once again, it is not necessary for present purposes that those passages be reproduced.
The Decision did not involve the exercise of a discretion. If leave to appeal is granted the question for the Full Bench is whether Commissioner Murphy reached the correct decision, not whether the decision was reasonably open to him: Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30 at [17]-[18] and [48]-[50]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Anor v Sunset Power International Pty Ltd trading as Delta Electricity [2018] NSWIRComm 1072 at [26].
The grounds set out in the Appeal at H(a), H(b) and, at least in part, H(c) challenge findings of fact made by Commissioner Murphy. The Full Bench would only intervene if it were satisfied that those findings were clearly wrong or not reasonably open on the evidence: Abboud v NSW Department of Education (1999) 92 IR 32 at 43, quoted with approval in Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37; [2003] NSWIRComm 211 at [98].

Leave to Appeal

We are not persuaded that the reasons set out in the Appeal as warranting leave to appeal have been made out.
The question as to "whether a direction by an employer to provide reasonable evidence of vaccination against COVID-19 by a certain specified date is a lawful and reasonable direction" does not arise from the Decision. This is not a matter raised directly by the Motion and was not considered by Commissioner Murphy.
We consider that the law regarding what are commonly referred to as "constructive dismissals" is well settled. There appears to have been no controversy in the proceedings before Commissioner Murphy as to the principles to apply, but rather how they applied to the circumstances of this case. The fact that the case involves a "direction by the employer to provide…evidence of vaccination against COVID-19", while topical, does not require a reconsideration of the legal principles. The Police Commissioner did not contend otherwise, either before Commissioner Murphy or on appeal.
Although we find that the reasons set out in the Appeal are not made out, the Police Commissioner raised an additional reason in her Narrative on Leave to Appeal, that is, that the Decision is affected by error, warranting intervention on appeal. Ms Danger contended that as no error had been made in the Decision, there could be no basis on which to grant leave to appeal.
For the reasons which follow, we accept the Police Commissioner's submission. We have determined that Commissioner Murphy erred in the Decision, with those errors going to the question of the Commission's jurisdiction to hear and determine Ms Danger's unfair dismissal claim. Correcting those errors is both in the public interest and a matter "going to the proper administration of justice": Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263; [2005] NSWIRComm 409 at [5]. For that reason we have determined to grant leave to appeal.

Ground H(a)

The first ground of appeal challenges the finding by Commissioner Murphy that the Police Commissioner had issued "contradictory directives". It is reasonably apparent from the Decision that "directives" is a reference to the Voluntary Collection Notice and the Mandatory Collection Notice, each of which is reproduced in part in the Decision. The Decision does not explain how they are "contradictory".
During the hearing of the Motion on 31 January 2022, Commissioner Murphy had the following exchange with Mr Seck: [3] "Mr Seck, I'm sure you are probably going to address this but I might just give you this prompt because, I must say, I'm a little perplexed. I'm looking at the information collection notices that were distributed on 7 September. One is annexure MD2 to exhibit 4 of Ms Danger's first affidavit, which uses the words 'You are required to provide', et cetera. And then the other is now exhibit 6, issued on the same day, has the word 'voluntary' in the heading and then it says, 'If you have received a COVID-19 vaccination, you are requested to provide your immunisation history statement, recorded in the Australian Immunisation Register.' Can you address me on why two notices directed at the same issue, which is the provision of the immunisation history statement, as recorded on the Australian Immunisation Register, which seem to lack some consistency? One talks about a requirement, the other says, 'You are requested'. And in the voluntary one, it sort of backs that request notion up by saying, in the fourth paragraph, 'You have not been directed or required to provide your vaccination information', which seems to be contrary, unless I'm missing something. … SECK: Commissioner, I will address you on the next occasion on that issue."
On 18 February 2022 the Police Commissioner filed with the Industrial Registry a document purporting to respond to the questions posed by Commissioner on 31 January 2022. That document stated in part: [4] "Voluntary COVID-19 Vaccination 7. Prior to the Commissioner of Police (CoP) issuing his mandate and direction on COVID-19 vaccination in September 2021, the NSWPF managed collection of its personnel's COVID-19 vaccination status for privacy purposes, as a voluntary disclosure. It did this from as early as February 2021 when COVID-19 vaccinations were made available to frontline (including NSWPF quarantine) workers. 8. Where NSWPF as a public sector agency takes collection of medical information from its members, it is required under the Health Records & Information Privacy Act 2002 (HRIP Act) to advise those members of the reason for collection, and whether such collection was voluntary or mandatory. 9. A Voluntary Information Collection Notice which was first issued in March 2021 read: 'If you have received the COV/0-19 Vaccination, you are requested to provide the NSWPF with a copy of your immunisation history statement as recorded in the Australian Immunisation Register. The purpose for the collection of your vaccination information is in relation to your deployment, welfare and safety, in addition to your eligibility to undertake work under the NSWPF's user charges scheme.' … 12. The Voluntary Information Collection Notice was drafted and issued at a time prior to COVID-19 Vaccination certificates or 'green tick' certificates being readily available. Accordingly, NSWPF listed the immunisation history statement as the relevant form of vaccination in the Information Collection Notices. … Mandatory COVID-19 Vaccination 16. On 7 September 2021, the Commissioner of Police directed mandatory COVID-19 vaccination for all members of the NSWPF (Commissioner's Direction). The Commissioner's Direction had three main elements to it being: (a) Receiving one dose of a COVID-19 Vaccination by 30 September 2021; (b) Receiving a second dose of a COVID-19 Vaccination by 30 November 2021; and (c) Providing evidence of vaccination if requested by management. 17. Accordingly, the Information Collection Notice was updated on 7 September 2021 to align with the mandatory provision of COVID-19 vaccination evidence. Mandatory Information Collection Notice dated 7 September 2021 is attached and marked as Annexure C. The use of the word 'required' in the Mandatory Information Collection Notice reflects the underpinning mandatory direction. 18. Both Voluntary and Mandatory Information Collection Notices continued to operate as there may circumstances where a member of the NSWPF voluntarily provides information confirming their vaccination status even after the issuing of the Commissioner's Direction. The wording in the Commissioner's Direction as reflected at paragraph 16(c) above requires Management to request evidence. If Management requests evidence, under the Direction, then Management can rely on the Mandatory Information Collection Notice. However absent a request, a member of the NSWPF can voluntarily provide their information. 19. The Information Collection Notices do not form part of the Commissioner's Direction, as the Commissioner's Direction simply provides for the provision of evidence when requested by management." (Emphasis in original)
In submissions filed in response, Ms Danger did not challenge the Police Commissioner's description as to how the Voluntary Collection Notice and Mandatory Collection Notice came into being and how they interacted. Rather, she contended that "no consideration was given to the excessiveness of the required document which was requested and later required alongside the 7 September 2021 direction". [5]
The Decision makes no reference to the submissions of either the Police Commissioner or Ms Danger in this regard.
On the appeal, the Police Commissioner submitted: [6] "17. Commissioner Murphy concluded (Decision [20]) that the First Notice and Second Notice were 'contradictory' as to the requirement for employees to produce their immunisation history statements. The Decision does not explain the contradiction. Contrary to the Commission's decision, the Notices are not contradictory. Neither document contained any requirement for employees to produce their immunisation histories. At its highest, the Second Notice foreshadowed the possibility that an employee's manager, supervisor or Commander may issue them with a specific direction to provide their immunisation history. That was not inconsistent with the First Notice which applied to vaccinations that had already occurred prior to the Second Notice. The Notices addressed different concerns at different times. 18. The evidence revealed that the Respondent was, in fact, subsequently issued with such a direction. On 7 September 2021, after the Appellant's direction regarding vaccination was published, the Respondent's senior manager, Director Kristy Walters, emailed all staff, including the Respondent, stating they would be required to supply an immunisation history statement if already vaccinated. This direction was repeated on 10 September 2021. Once the direction was made, the Second Notice prevailed." (Emphasis in original) (The references in these passages to the "First Notice" and the "Second Notice" are to the Voluntary Collection Notice and Mandatory Collection Notice respectively.)
At the invitation of Commissioner Murphy, the Police Commissioner explained the interaction between the Voluntary Collection Notice and Mandatory Collection Notice and why they were not inconsistent or contradictory, despite the concerns expressed by Commissioner Murphy. That explanation was not controverted by Ms Danger. Indeed, as we will see in respect of Ground H(c), any perceived conflict in the terms of the Voluntary Collection Notice and Mandatory Collection Notice did not form part of Ms Danger's case before Commissioner Murphy; it was a matter raised only by the Commissioner himself.
The finding by Commissioner Murphy that the Police Commissioner had issued "contradictory directives" was not reasonably open on the evidence before him. We uphold Ground H(a) of the appeal.

Ground H(b)

The second ground of appeal challenges the finding by Commissioner Murphy that Ms Danger had been "stood down without pay".
There appears to be no controversy that on 20 September 2021 Ms Danger commenced a period of planned leave which was due to end on 3 October 2021. As a consequence of Ms Danger not having demonstrated compliance with the Direction, and following a conversation between her and Ms Walters on 2 October 2021, Ms Walters sent an email to Ms Danger on 2 October 2021 stating in part: [7] "I confirm that you have now been placed on personal leave and are not permitted to attend the workplace until such time as you have complied with the Commission's Direction."
Ms Walters gave evidence before Commissioner Murphy that Ms Danger utilised paid leave up to 18 October 2021.
It is not in question that after 2 October 2021 Ms Danger continued to receive payments from NSW Police. However, the case advanced by Ms Danger before Commissioner Murphy sought to draw a distinction between the payment of salary or wages on the one hand, and requiring an employee to utilise their accrued leave entitlements on the other.
The Decision does not directly grapple with that distinction. Commissioner Murphy twice refers to Ms Danger as having been stood down "without pay" (at [15] and [20]), but does not explain what is encapsulated by the word "pay" in this context. The Decision makes no reference to the parties' submissions in this regard.
We observe, however, that at [17] of the Decision, Commissioner Murphy traverses evidence as to the income received by Ms Danger after she was "stood down". That paragraph records the reduction in Ms Danger's annual leave balance after 30 September 2021.
At [18] of the Decision Commissioner Murphy reproduces an extract from Ms Danger's evidence which included the following statement: "At this date I felt I had no other choice as I had no way of making income nor was I receiving payment of wages."
Viewed in context, we consider that the decision reflects an acceptance by Commissioner Murphy of the distinction between the receipt of wages and the receipt of accrued leave entitlements. He observed that Ms Danger had received "income" after she had been "stood down" in the form of annual leave, but also apparently accepted Ms Danger's evidence that she was not "receiving payment of wages". He appears to have accepted the distinction between the two types of payment. His finding that Ms Danger had been stood down "without pay" is to be considered in that context.
On that basis, and very much on balance, we are not satisfied that the second ground of the appeal has been made out. The finding that Ms Danger had been stood down "without pay" was reasonably open to Commissioner Murphy on the evidence before him and on the cases advanced by the parties.

Ground H(c)

The third ground of the appeal challenges the most substantive finding of the Decision, namely that the conduct of the Police Commissioner was the real and effective initiator of the termination of Ms Danger's employment ("Dismissal Finding"). This finding was central to Commissioner Murphy's decision to dismiss the Motion. In other words, the Dismissal Finding formed the basis for him to conclude that the Commission was seized of jurisdiction in the proceedings, despite Ms Danger's ostensible resignation.
In the Decision, Commissioner Murphy quoted the following passage from Allison v Bega Valley Council (1995) 63 IR 68 ("Allison") at 72: "It is a trite observation that a contract of employment like any contract can come to an end in a number of ways. Termination can be 'by' the employer where an employee is 'dismissed' either with notice in accordance with the provisions of the contract or without notice in the event of serious and wilful misconduct. Both the employer and the employee may mutually agree that the contract of employment should come to an end. In other cases the employee may bring about the termination by resigning. In some cases the circumstances in which the termination comes about makes it difficult to determine whether there was termination 'by' the employer or the employee. There are cases where the courts, after analysis, have determined that although on the face of it an employee has resigned and brought about the termination of the contract of employment, in reality the conduct of the employer has compelled or unduly influenced the employee to resign. The most quoted example is an assertion by an employer to an employee to the effect that the employee must resign or he or she will be dismissed. This situation is commonly referred to in the text books and decided cases as a 'constructive dismissal', that is, in effect the employer has brought about the termination of the contract of employment. Although the term 'constructive dismissal' is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in a such as way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face it the employee appears to have given his or her resignation?"
Commissioner Murphy stated (at [20] of the Decision) that the Dismissal Finding was the result of the application of the principles set out in Allison "and other decided cases" (none of which are identified).
It is clear from Allison that the conduct of the employer must have "compelled or unduly influenced the employee to resign". As the Police Commissioner submitted, this requires a two-step process. First, determining whether the Police Commissioner had engaged in the alleged conduct. Second, if so, whether there was a causal nexus between that conduct and the decision to resign: Pawel v Australian Industrial Relations Commission (1999) 94 FCR 231; (1999) 97 IR 392 at [56].
It is clear on the face of the Decision that Commissioner Murphy relied on two facts to support the Dismissal Finding: the Police Commissioner had issued "contradictory directives", and Ms Danger had been stood down without pay. We have already found that there was no proper basis for the first of these findings. We have accepted that the second finding was reasonably open on the evidence, albeit on balance.
The Decision does not permit any assessment as to the weight attached by Commissioner Murphy to these factual findings in reaching his Dismissal Finding. On a proper construction they are presented as factors which cumulatively resulted in the Dismissal Finding, rather than as separately justifying that outcome. To that extent, given our finding in respect of Ground H(a), the factual underpinning of the Dismissal Finding must be called into question.
Further, in so far as the Dismissal Finding was based on the finding that the Police Commissioner had issued "contradictory directives", there was no evidence before Commissioner Murphy that this was causative of Ms Danger's decision to resign. It did not form part of Ms Danger's case before Commissioner Murphy that she was in any way confused about her obligation to provide proof of vaccination or that this confusion had played any part in her decision to resign. To the contrary, her evidence revealed that she knew what was required of her but she objected to providing the evidence of vaccination that had been requested.
In her Godfrey Report, Ms Danger stated: [8] "1. A request for the entirety of my immunisation history is not relevant to the COVID 19 vaccination Direction. It divulges far more information than what is necessary for this Direction and is an invasion into my highly sensitive health information. I understand this is required of me (as per the first information collection notice sent out 07.09.2021), however there has been major mishandling of employee health records since the Direction was given and I have subsequently requested no third parties have access to this record as per my legal rights. … 6. The second information collection notice sent out 07.09.2021 states it is only requested of me to provide my COVID 19 vaccination statement. As per the reason above, I will not provide this to the NSWPF." (Reproduced verbatim)
In a written outline of submissions filed by Ms Danger in respect of the Motion, she submitted: [9] "37. It is a matter of fact that the Applicants 'immunisation history statement as it appears on the immunisation register' includes a large variety of vaccinations and immunisations from as far back as 1996. It furthermore includes elective vaccinations related to specific diseases and varied health practitioner information. It is a matter of fact that most of the information found within the document is irrelevant and excessive in relation to a COVID 19 vaccinations or proof of. 38. It is a matter of fact that other health records/documents could have been viewed and potentially stored by the employer that did not intrude to an unreasonable extent on the Applicants private and sensitive health information. It is a matter of fact however that the employer required the applicant (and others) to provide this document so the employer could view and store the record. The requirement is found in official NSWPF collection notices and was made through managing staff." (Reproduced verbatim)
None of this suggests any uncertainty or confusion on Ms Danger's part as to what was required of her under the Voluntary Collection Notice or the Mandatory Collection Notice.
Ms Danger's position did not change, even after Commissioner Murphy raised concerns as to the potentially contradictory terms of the Collection Notices and their potential to cause confusion. As noted at [34] above, she maintained her position that the information she was required to provide was excessive.
Significantly, there was nothing in Ms Danger's letter of resignation or in the email she sent to her manager, Andrew Cobham, attaching that resignation that made any reference to her decision being related in any way to confusion arising from the terms of the Voluntary Collection Notice or the Mandatory Collection Notice.
In all of the circumstances, and given our finding in respect of Ground H(a) but allowing for our finding in respect of Ground H(b), we do not consider that the Dismissal Finding can stand. Ground H(c) is upheld.

Ground H(d)

The fourth ground of appeal calls into question the adequacy of the reasons contained in the Decision and asserts that Commissioner Murphy erred by failing address each substantive submission advanced by the Police Commissioner. In light of our findings in respect of Grounds H(a) and H(c), we do not consider it necessary to traverse this ground.

Conclusions

We have upheld Grounds H(a) and H(c). The findings made by Commissioner Murphy which are impugned by those grounds, particularly the Dismissal Finding, underpin his order to dismiss the Motion. The only appropriate outcome is that Commissioner Murphy's order be quashed.

Determination of the Motion

In the Appeal, the Police Commissioner sought, in effect, that if the Full Bench were to quash Commissioner Murphy's order, it should proceed to determine the Motion. We consider that it is appropriate to do so.
We have reproduced at [49] above certain passages from Allison. In that case the Full Bench went on to observe (at 73): "Where an employee initiates the termination of the contract of employment it is necessary to consider whether that ostensible active termination was given freely and without any undue pressure. If the ostensible resignation is, in effect, a response to and consistent with a desire by an employer that such resignation be forthcoming, then what has occurred may be that the termination has been brought about by the employer and that in this way the employee has been dismissed."
In Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154 at 160-161, Moore J observed: "However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct."
In applying the principles set out in these authorities to the circumstances of this case, we consider that the following matters are of particular significance: 1. On 23 September 2021 Mr Cobham sent an email to Ms Danger which stated in part: [10] "An Information Collection Notice - Mandatory was released by NSWPF on 7/9 along with the Commissioners Direction to Mandate Vaccinations for NSWPF. Evidence of vaccination - you can choose to provide either: • your vaccination history • receipt of proof from ie Gosford Hospital (date of vaccination) • the Australian Vaccination Certificate - Covid 19 generated for your phone wallet." (Reproduced verbatim) There is no evidence that Ms Danger explored these alternatives with her managers. Rather, the evidence demonstrates that Ms Danger maintained a steadfast opposition to providing any evidence of vaccination at all. There is little to suggest that Ms Danger was open to any outcome that did not involve NSW Police acceding to her views. 1. Ms Danger elected not to be vaccinated during her employment with NSW Police. She did not apply for an exemption from the requirement to be vaccinated. She deposed in the proceedings before Commissioner Murphy that "as soon as I was obligated to get the vaccine for travel reasons, I of course did so". [11] A COVID-19 digital certificate in respect of Ms Danger was in evidence before Commissioner Murphy. No explanation was offered as to why Ms Danger would be willing to be vaccinated and provide evidence of such vaccination to maintain her ability to travel, but not to secure her ongoing employment. 2. Ms Danger's evidence before Commissioner Murphy demonstrated that she was aware that she could apply to NSW Police for permission to engage in "secondary employment". There is no evidence that she did so. 3. Ms Danger provided her resignation letter to Mr Cobham as an attachment to an email sent on 18 October 2021. In that email Ms Danger stated that the decision to resign was not one that she had made "lightly". [12] There can be no suggestion that Ms Danger's decision to resign was made rashly or in the heat of the moment.
Having regard to these matters, we are not satisfied that the Police Commissioner compelled or unduly influenced Ms Danger to resign. There is no basis to conclude that it was probable that the conduct of the Police Commissioner would result in Ms Danger's resignation, much less that that was the Police Commissioner's desire.
We are unable to agree with Commissioner Murphy's conclusion (at [21] of the Decision) that Ms Danger "had no other choice…than to tender her resignation".
We consider that the termination of Ms Danger's employment is properly to be characterised as a resignation as opposed to a (constructive) dismissal. It follows that the contention in the Motion that Ms Danger "is not entitled to bring the Unfair Dismissal Application and the Commission does not have jurisdiction to hear the Unfair Dismissal Application" must be upheld. It further follows that the order sought in the Motion, namely that Ms Danger's unfair dismissal application be dismissed, ought to be made.

Orders

We order as follows: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The order of Commissioner Murphy in Danger v Commissioner of Police [2022] NSWIRComm 1015 is quashed. 4. The Application for Relief in relation to Unfair Dismissal filed by Ms Danger on 8 November 2021 is dismissed.

Endnotes

Tcpt, p 73(49-50)
Appellant's Outline of Submissions in Reply in respect of the Appellant's List of Authorities, 6 July 2022 at par 15
Appeal Book at pp 79-80
Appeal Book at pp 511-513
Appeal Book at p 517
Appellant's Outline of Submissions, 29 April 2022
Appeal Book at p 172
Appeal Book at pp 439-440
Appeal Book at p 413
Appeal Book at pp 165-166
Appeal Book at p 107
Appeal Book at p 291 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: 11 October 2022

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (12 paragraphs)

Parties

Cases Cited (14)

Cited By (1)