(c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(2) However, the rules of evidence and other formal procedures of a superior court of record apply to the Commission in Court Session.
16 In connection with s 163(1)(c), I acknowledge that there is open to debate an argument about whether or not this sub-section is procedural only or is substantive in nature.
17 Although I acknowledge that proceedings of this kind are conducted in an adversarial manner, I am not persuaded that the same limitations as apply to the finality of the litigation process are necessarily appropriate to proceedings of this kind before an industrial tribunal. I refer, again, to the matters that are required to be considered by the Commission under s 89.
18 Furthermore, it seems to me that the stage reached in these proceedings at the time that I handed down my decision on 18 August 2009 may be compared, by analogy, to the processes undertaken by a court in criminal proceedings, in circumstances where a finding of guilt has been recorded. At that stage, a court is required to undertake a process to enable an appropriate sentence or penalty to be imposed. During that process, it is clear that a court is entitled to call for information and evidence which the court feels is necessary to enable the sentencing proceedings to be conducted in a proper manner. It is not uncommon for a judge to call for a pre-sentencing report of some kind.
19 In making these observations, I have not undertaken any examination of any kind of any authorities that have compared the functions and powers of an industrial tribunal with those of a court. To some extent, such an examination may be less than helpful because the processes and powers of an industrial tribunal will vary considerably depending upon the type of proceedings before it. As is obvious, unfair dismissal proceedings are more akin to the litigation process conducted by a court.
20 Mr Kenzie QC sought to rely on the judgment of the New South Court of Appeal in Commissioner of Police v Goodwin [2008] NSWCA 345. Those proceedings are capable of being distinguished from the proceedings with which this Commission is dealing. This is not a case of a judge, on his or her own initiative, suggesting that some other cause of action or approach to the litigation should be considered. In the circumstances of these proceedings, I have merely called for further consideration of the matter by both sides to enable the Commission to fulfil its statutory duty created by s 89.
21 There is another reason which militates against acceding to the approach contended for by the Commissioner. My decision was one for which neither party contended. The applicant submitted that in all the circumstances his removal was harsh, unreasonable or unjust including a consideration of the "merits" of his case. The applicant further submitted that there was a "technical" reason why he should succeed. The respondent denied that there was any justification in the technical argument advanced by the applicant and submitted that the applicant's merit case should fail based on a demonstrated lack of integrity.
22 In the end result, I found that the applicant's technical argument succeeded, as contended for by him, but expressed grave doubts concerning his integrity, as contended for by the Commissioner. I concluded that in all the circumstances, the process undertaken by the Commissioner was so tainted that I would be justified in finding that the applicant's removal was unreasonable and unjust. In these circumstances, I would not expect the parties to have been able to formulate alternative submissions about the precise relief that should be granted having regard to the number of variables comprised within an application under s 89. I am of the opinion that some leniency should be shown in considering whether any application to adduce further evidence, by way of the reopening of the respective cases of the parties, should be permitted. Indeed, as I have previously observed, it is my opinion that the parties, and especially the respondent, are compellable to furnish such further information or evidence which will enable the Commission to discharge its statutory duties under s 89.
23 As I have said, the Commissioner declined to provide any further evidence in the proceedings. The applicant applied to reopen his case by requesting that the Commission accept a statement made by him on 16 November 2009. I agreed to allow him to reopen his case because I considered that it was appropriate to do so in all the circumstances. They include the matters that I have previously discussed, my reasoning hopefully being obvious from the various observations which I have made.
24 In his further statement, the applicant said that at the time that he was suspended from duty in September 2006, he was working six hours a day for three days a week at Goulburn Police Station performing "permanent restricted duties." He assisted "any police officers that needed assistance …. My prior duties involved answering telephone and counter enquiries, creating events and filing documents. Whilst I was authorised to access the COPS, I rarely if ever did so, and my access was severely restricted."
25 The applicant, in his further statement, asked for a transfer to one of six nominated police stations which were closer to his place of residence. He also nominated "other suitable duties" which he thought he could undertake with some retraining, including "a roster officer, domestic violence liaison officer, youth liaison officer, crime prevention officer, exhibits officer, education development officer, intelligence officer and court process officer".
26 The applicant said that if he undertook his prior duties, he would not be required to give evidence in any court proceedings and he would not need to access COPS. He referred also to the fact that if reinstated he wished to pursue a medical discharge and he was desirous of maintaining his secondary employment as a magician because he needed to supplement his income, provided, of course, that he had obtained the necessary approval to do so.
27 I refer to the observations which I made in my previous decision concerning the significance of integrity in the context of appointment as an officer within the New South Wales Police Service. That discussion commences at [111] of my decision.
28 In one sense, I am in no better position to determine what relief should be granted to the applicant at this stage of the proceedings than I was at the time of my original decision on 18 August 2009. However, the applicant has been given an opportunity of reopening his case and has sought to adduce some additional evidence, which I have received. The applicant has not sought to adduce any further evidence, nor has he sought to compel the Commissioner to produce any particular evidence. In these circumstances, and even allowing for the failure of the Commissioner to adduce any evidence, I propose to deal with the proceedings on the basis of such evidence or other information as is before the Commission. In doing so, I do not propose to proceed on the basis that the applicant necessarily has any particular onus to demonstrate that the relief should be granted to him under s 89 because, as I have earlier observed, arguably the burden of adducing particular evidence about the applicant's former position and the availability of any suitable position for reemployment may fall on the Commissioner as the employer.
29 Although the applicant asserted that his demonstrated lack of integrity would not affect the work that he was performing at the time that the Commissioner determined to remove him from the police service, a compelling argument against the applicant's reinstatement, having regard to the serious concerns I have about his integrity, is that at the time of his removal, the applicant was undertaking the same part-time duties as he would be if reinstated. The applicant's integrity has been tainted in the manner that I have described in my earlier decision. In summary, he knowingly breached a prohibition on unauthorised secondary employment and he lied about it. He disobeyed an order of a superior officer. In my opinion, these findings militate against any grant of relief by way of reinstatement in favour of the applicant. The duties that he performed, albeit restricted, were nevertheless duties that involved him in carrying out work as a sworn police officer. The fundamental requirement of integrity continues to apply to the position that the applicant occupied at the time of his removal. The findings which I have made concerning his lack of integrity would, in my opinion, render it impracticable to reinstate him to that position.
30 It is then necessary to consider whether or not relief should be granted by way of an order of reemployment as contemplated within s 89(2). What is contemplated by these provisions is the subject of discussion in the decision of the Full Bench in Carlton and United Beverages Limited, previously referred to. The meaning of "available" is discussed in [59] of that decision. I note, with interest, that the Full Bench in those proceedings reached a conclusion that there was insufficient evidence before the Commission to enable an assessment as to the suitability of reemployment to be undertaken. The Full Bench determined to remit the matter so that "the question of whether leave should be granted to adduce further evidence" might be determined. (At [65]). It was contemplated by the Full Bench that even at the stage where proceedings had been concluded, a decision taken and the matter considered on appeal, it might still be appropriate to adduce further evidence to enable the Commission to fulfil its functions under s 89.
31 I am less confident that there is currently before the Commission any evidence of any other position that the employer has available which is suitable to the applicant as contemplated by s 89(2). The applicant has suggested a number of positions which he has submitted are suitable, albeit that each of them would require some retraining. Fortunately, this Commission is entitled to take notice, in general terms, of work performed by persons in industry, including work performed by persons who perform duties which are well known and which are understood within the general community. Even though the state of the evidence or information about suitable positions is, in my opinion, unsatisfactory, having regard to the need to finalise these proceedings and having regard, in particular, to the fact that the applicant did not seek to further reopen the proceedings beyond the tender of his additional statement, I proceed to consider whether any such position would be suitable, assuming also that it was "available" in the sense referred to by the Full Bench at [59] and following in Carlton and United Beverages Limited.
32 In my opinion, the findings concerning the applicant's integrity, to which I have previously referred, would militate in favour of a conclusion that each of the positions, which the applicant put forward as being suitable for reemployment, would be impracticable. Each of them is either intimately connected with the work of the New South Wales Police Force or the justice system, or both, and would require a high degree of integrity including obedience.
33 I conclude that it would not be practicable in these circumstances to order reemployment.
34 This leaves for consideration the question of compensation. The maximum amount which might be ordered to be paid is fixed by s 89(5) and the basis upon which it is calculated is also set out in that sub-section. The Commissioner conceded that, in all the circumstances, it would be appropriate to make an order for payment of compensation. In these circumstances, I will not examine the relevant evidence in any detail. I observe that it is likely that the level of compensation would be affected by the level of remuneration earned by the applicant whilst undertaking restricted duties so that the final amount of compensation will be relatively small.
35 Given that such finding as I have made in the applicant's favour is directed more to the "technical" basis for his claim rather than any merits, I would assess, in all the circumstances, an appropriate amount of compensation equivalent to a period of three months' remuneration that he earned immediately before his removal. Otherwise, the provisions of s 89(5) are to apply.
Orders