Commissioner of Police v Industrial Relations Commission of New South Wales

The Police Act 16The Police Act, formerly known as the Police Service Act, governs the management and employment of members of the NSW Police Force. 17A "police officer" is defined in s 3 of the Act to mean: "... a member of the NSW Police Force holding a position which is designated under this Act as a position to be held by a police officer." 18Part 2 of the Act, entitled, "NSW Police Force", provides for the establishment of the NSW Police Force: s 4; the composition of the NSW Police Force: s 5; and its missions and functions: s 6. Relevantly, s 5 provides that the NSW Police Force comprises: "(a) the Commissioner, (b) members of the NSW Police Force Senior Executive Service, (c) all other police officers and administrative officers employed under this Act, (d) temporary employees." 19Pursuant to s 6, the NSW Police Force has the function, inter alia, of providing police services for New South Wales. The Commissioner is responsible for the management and control of the NSW Police Force, subject to the direction of the Minister: s 8(1) and s 8(2). 20The Commissioner may classify and allocate duties and issue instructions to members of the NSW Police Force: s 8(3) and s 8(4). Section 10 provides for "positions in the New South Wales Police Force", as follows: "10 Positions in NSW Police Force (1) In addition to the position of Commissioner, the positions in the NSW Police Force consist of such positions as the Commissioner may determine in accordance with this Act. (2) The Commissioner: (a) may create, abolish or otherwise deal with any position in the NSW Police Force, and (b) must classify and grade each such position. ... (4) Police officers of the rank of constable (or such of those police officers as the Commissioner determines) are to be appointed to that rank or to a grade within that rank, and hold a position (but not a separate position) in the NSW Police Force." 21Section 11 provides: "11 Designation of police officers (1) The Commissioner is required to designate the positions in the NSW Police Force which are to be held by police officers. (2) A position in the NSW Police Force is to be so designated if the Commissioner is satisfied that the holder will be required to carry out, or will be concerned in, operational police duties or that it is otherwise appropriate to do so. ..." 22Section 12 provides for ranks and grades of police officers. "Constable" is the lowest of six ranks in the NSW Police Force: s 12. 23Sections 13 and 14 are also relevant. They provide: "13 Oath to be taken by persons exercising police functions (1) Before a person exercises any of the functions of a police officer, the person must take the oath or make the affirmation of office as a police officer in accordance with the regulations. (2) A police officer is not required to take a further oath or make a further affirmation after a change in the officer's position in the NSW Police Force, so long as the officer remains in the NSW Police Force. 14 Additional functions of police officers (1) In addition to any other functions, a police officer has the functions conferred or imposed on a constable by or under any law (including the common law) of the State. (2) Nothing in this section confers on a police officer a power to exercise a function in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002." 24Part 6 of the Act provides for non-executive police officers. A non-executive police officer is defined in Pt 6, Div 1, s 63 as a "police officer to whom this Part applies". As Pt 6, Div 4 deals with appointment and promotion of constables, it must follow that a police constable is a non-executive police officer, notwithstanding that Pt 6, Div 2 deals separately with the appointment of non-executive police officers. It should also be noted that although Pt 6 is entitled "Appointment of non-executive police officers", its scope is much wider, dealing, inter alia, with the appointment of non-executive police officers, temporary appointments, transfers, the vacation of non-executive police officer positions and the retirement of incapable non-executive police officers. 25Section 63 defines "vacant position" as: "(a) a position that is not held by a person, or (b) a position to which a person is temporarily appointed, or (c) a position that is temporarily held by a person who is temporarily appointed to another position in accordance with section 67 (2)." 26Section 64 provides, relevantly: "(1) An appointment (whether by way of transfer or promotion or otherwise) as a non-executive police officer is to be made by the Commissioner. (2) It does not matter whether the person appointed is or is not already a member of the NSW Police Force." 27Section 66 provides that appointments are to be made on merit. 28Sections 72, 72A and 181D of the Act, which are relevant to the issues with which the Court is concerned, provide for three different mechanisms whereby a police officer's employment with the NSW Police Force may be terminated. 29Section 72 provides: "72 Vacation of non-executive police officer positions (1) A non-executive police officer's position becomes vacant if the officer: ... (c) is removed from office ..." 30Section 72A provides: "72A Incapable non-executive police officer may be retired If: (a) a non-executive police officer is found on medical grounds to be unfit to discharge or incapable of discharging the duties of the officer's position, and (b) the officer's unfitness or incapacity: (i) appears likely to be of a permanent nature, and (ii) has not arisen from actual misconduct on the part of the officer, or from causes within the officer's control, the Commissioner may cause the officer to be retired." 31Section 181D, the provision upon which the Commissioner acted to remove Mr Ross, is contained in Pt 9, Div 1B and deals with "Management of conduct within NSW Police Force". Division 1B makes provision for the summary removal of police officers in whom the Commissioner does not have confidence. It provides: "181D Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. (2) ... (3) Before making an order under this section, the Commissioner: (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and (b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the police officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force. (5) The removal takes effect when the order is made. (6) ... (7) Except as provided by Division 1C: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section ... ... (8) For the purposes of this Act, removal of a police officer from the NSW Police Force under this section has the same effect as if the police officer had resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from the NSW Police Force. ..." 32Division 1C, to which reference is made in s 181D(7) and s 181D(7B), contains, relevantly, s 181E, s 181F and s 181G. Mr Ross' application for review was brought pursuant to s 181E, which provides: "181E Review generally (1) A police officer who is removed from the NSW Police Force by an order under section 181D 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 removal is harsh, unreasonable or unjust. (2) An application under this section does not operate to stay the operation of the order in respect of which it is made. ..." 33Section 181F outlines the manner in which the IRC is to conduct review proceedings. In brief, the IRC is required to consider the Commissioner's reasons for the decision to remove an applicant from the NSW Police Force and must consider the case presented by both the applicant and the Commissioner in support of their respective positions. 34Section 181F(2) provides that the applicant seeking the review bears the onus of establishing that the Commissioner's removal of the applicant from the NSW Police Force was "harsh, unreasonable or unjust". 35Section 181F(3) provides for considerations that the IRC may have regard to as follows: "(3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1))." 36Section 181G brings into operation certain provisions of the Industrial Relations Act in relation to an application for review under Div 1C of the Police Act. In particular, it provides: "(1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications: ... (d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted ..."

The Industrial Relations Act 37The Industrial Relations Act, s 89 provides for the orders that the Commission may make in respect of an application for review as follows: "89 Orders for reinstatement, re-employment, remuneration, compensation (1) Reinstatement The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. (2) Re-employment If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable. (3) Remuneration If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order. (4) Continuity If the Commission orders reinstatement or re-employment, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal. (5) Compensation If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave. (6) When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment. ... (8) An order under this section may be made on such terms and conditions as the Commission determines."

Judgment of the Full Bench of the IRC 38Mr Ross' application for review proceeded before the IRC and the Full Bench on the basis that Mr Ross was permanently and totally incapacitated from performing the duties of a police constable. Staff J had also found, and this was uncontested, that Mr Ross' dismissal would result in him forfeiting his entitlements under the Crown Employees (Police Officers Death and Disability) Award 2005 (the Award). Mr Ross had contributed 1.8 per cent of his salary to the scheme set up under the Award. Staff J also found that Mr Ross' superannuation entitlements were adversely affected by his dismissal. 39The Full Bench made the following critical findings which constituted the basis for the challenge by way of judicial review to this Court. 40First, it held, at [118], that Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; 221 CLR 539: "... is authority for the proposition that the purpose of a reinstatement order is ... 'to ensure that the employee in question is placed in the status quo ante.' That is, the employee is to be reinstated to the position he or she occupied immediately prior to dismissal and all of the incidents of that position, including any work the employee was performing at the time of dismissal, are required to be put back into place." 41Their Honours noted that this statement was not entirely consistent with the terms of s 89(1), which provides that the IRC could order reinstatement to the employee's former position on terms "not less favourable to the applicant" than those that would have applied had the applicant not been dismissed. The Full Bench explained, however, that there was no inconsistency between the statement in Blackadder and the words of s 89(1), provided the employee was reinstated on terms "no less favourable to the applicant" than those upon which the employee had previously been employed. 42Secondly, the Full Bench held that Blackadder was not authority for the proposition that an order for reinstatement could not be made where the employee was unable to perform work due to, for example, disability or injury at the time the reinstatement order was made: see Blackadder at [44] per Hayne J. 43Thirdly, the Full Bench considered that the decision of this Court in Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47; 77 NSWLR 159 (Casari's case) was not to any different effect: see Casari at [21]-[22] per Spigelman CJ. 44Fourthly, the Full Bench held, at [134], that "a state of employment" may persist even though an employee becomes permanently incapacitated. Their Honours held that such state of employment "will continue until such time as either party takes steps to end the employment relationship or the doctrine of frustration operates". Their Honours further expressed the view that the doctrine of frustration would not necessarily automatically terminate the employment contract because of an incapacitating illness or condition. 45The Full Bench concluded, at [135], that the IRC had undoubted power to make a reinstatement order in this case and that the primary judge did not err in making an order that Mr Ross be reinstated. Their Honours observed, however, that it was not for the IRC to anticipate what might follow from making that order: see Blackadder at [78] per Callinan and Heydon JJ.

Legal principles 46It is convenient in the first instance to refer to the case law that is relevant to the issues raised on the application. The Commissioner submitted that contrary to the Full Court's reasons, its case was supported by Blackadder and Casari. The Commissioner also relied upon the decision of the Full Court of the IRC in Retail Traders Association of NSW v Shop, Distributive & Allied Employees Association of NSW (1990) 36 IR 38.

Blackadder 47In Blackadder, the appellant had been dismissed for refusing to do hot neck boning work in the respondent's abattoir, which was different from his normal work in the pre-chilled meat section, and for which he was not fit to perform because it involved greater rotational force and effort of both the wrist and elbow than his usual work. He brought proceedings in the Australian Industrial Relations Commission (AIRC) seeking relief for unlawful termination of his employment pursuant to the Workplace Relations Act 1996 (Cth), s 170CE. Section 170CH(2) provided that the AIRC was empowered to reinstate the employer if it considered that remedy was appropriate. Section 170CH(3) provided: "(3) If the Commission considers it appropriate, the Commission may make an order requiring the employer to reinstate the employee by: (a) reappointing the employee to the position in which the employee was employed immediately before the termination. (b) appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination." 48The AIRC made an order that the appellant: "... be reinstated to the position in which he was employed prior to the termination of his employment without loss of continuity of service or entitlements ..." 49It was apparent from the AIRC's reasons for decision that the reinstatement order was directed to the appellant's employment in the pre-chilled meat section of the abattoir. 50The respondent purported to reinstate the appellant by paying him base ordinary time wages and an average of the bonus payments earned by other employees in the same position and required him to undertake a medical examination to satisfy the respondent that he was fit to carry out his pre-termination duties. However, the appellant was not given any work and was not allowed to participate in any work which earned bonus payments. 51The appellant brought proceedings in the Federal Court to enforce the AIRC's order. In the Full Court: Ramsey Butchering Services Pty Limited v Blackadder [2003] FCAFC 20; 127 FCR 381, Moore J, in his dissenting judgment, held that the employer had failed to comply with the AIRC's order. His Honour, after referring to Retail Traders Association of NSW v Shop, Distributive and Allied Employees Association of NSW stated, at [21]: "... an order for reinstatement is not to achieve a notional or academic reinstatement but a practical one. It requires a re-establishment of the pre-existing employment relationship as a matter of reality and not in some notional or fictional way. The purpose of such an order is to place the dismissed employee in a position that he or she was in before the dismissal. It is to restore the status quo ante." 52This approach found favour in the High Court. 53The issue before the High Court was the construction of the AIRC's power to reinstate an employee "to the position in which the employee was employed immediately before the termination" within the meaning of s 170CH(3), and relevantly, the meaning of "reinstatement". The Court unanimously held that an order of reinstatement pursuant to the Act involved placing the employee into the employment position he or she was in immediately prior to termination. 54McHugh J, at [9], noted that the AIRC Commissioner made certain findings, which indicated that his order intended to reinstate the appellant to do the work that he ordinarily did before his employment was terminated, namely, hindquarter boning work and it was not open to the employer to defy the factual substratum upon which the order was based. 55His Honour continued, at [14]: "To construe the power 'to reinstate' as confined to restoring contractual or other legal rights fails to give full effect to the term 'reinstate'. To reinstate means to put back in place. In this context, it means that the employment situation, as it existed immediately before the termination, must be restored. It requires restoration of the terms and conditions of the employment in the broadest sense of those terms. It empowers the Commission to do more than restore the contract of employment. So far as practicable, the employee is to be given back his 'job' at the same place and with the same duties, remuneration and working conditions as existed before the termination." (emphasis added) 56Thus, the employee was to be reinstated to do the general boning work and, in particular, the hindquarter boning work that he had done prior to the termination. McHugh J stated, at [16], that an employer could not make an order for reinstatement subject to conditions formulated by the employer and which had not been subject of the AIRC's order. 57Kirby J, after referring to Moore J's remarks, stated, at [33]: "By the Act, and the order, reinstatement of the appellant was meant to be real and practical, not illusory and theoretical. The effect, if the respondent's argument were correct, it would permit the respondent to thumb its nose at the heart and core of the order made, namely that the appellant be 'reinstated', that is, according to the word's derivation and ordinary meaning, 'put back in place' in his former employment. The Act does not offer to the employer the power to buy its way out of the obligations imposed on it under a valid law of the Parliament. The employer is bound to comply with the order and the Act." 58Relevantly, language used by Staff J appears in the language of Kirby J's judgment, at [34], where his Honour stated the purpose of a reinstatement order as follows: "The purpose of a reinstatement order is to ensure that the employee in question is placed in the status quo ante. It is not to anticipate every eventuality that might thereafter arise; nor is it to provide the employee the subject of it with employment for life. What happens in the future, and what follows from what happens, depends on all the circumstances then obtaining." (original emphasis) 59Hayne J stated, at [44]: "... reinstatement by reappointing to a former position requires the recreation of the circumstances of employment that preceded the termination. The contractual nexus between the parties must be re-established. The terms and conditions of that contract must be the same. The employer must provide work to be done by the employee of the same kind and volume as was being done before termination." 60Callinan and Heydon JJ, in their joint judgment, also stated, at [75]: "All of the language of the relevant section must be given meaning. The use in s 170CH(3) of the word 'reinstate' is significant. Section 170CH(3)(a) and (b) describe the way in which the reinstatement may be effected. 'Reinstate' literally means to put back in place. To pay the appellant but not to put him back in his usual situation in the workplace would not be to reinstate him. The words 'reappoint' and 'position' should not be read in any restricted way. ... It was therefore within the power of the [AIRC] to make such an order as would contemplate or require that the employer provide a reappointed or reinstated worker with actual work to do." 61Notwithstanding that there were four judgments in the High Court, there was no difference of substance in the response of the individual members of the Court to the question in issue in that case. That issue was whether the employer had complied with the order for reinstatement. In that context, their Honours were of the opinion that reinstatement was not confined to reinstatement of the contract of employment. The actual employment circumstances had to be reinstated, including the conditions under which the employee was working immediately prior to his dismissal. In Blackadder, that involved the practical reinstatement to the job the employee held immediately prior to the wrongful termination.

Casari 62The meaning of reinstatement in s 89(1) was considered by this Court in Casari. Mr Casari's claim for unfair dismissal was upheld on appeal by the Full Bench of the IRC. However, the Full Bench found that reinstatement under s 89(1) was impracticable. It ordered, purportedly pursuant to s 89(2), that Mr Casari be re-employed in his former position effective from the date of the decision, but on terms that he not return to work and that he resign immediately. The Full Bench also ordered that the employer pay Mr Casari the wages he would have been paid had he not been summarily dismissed up until the date of his resignation. 63The effect of the IRC's order was twofold. First, notwithstanding that it had been made under s 89(2), it was in fact an order for reinstatement, an order that the IRC had held was impractical to make. Secondly, it was a means by which the appellant was paid his salary for the period between his wrongful dismissal and his resignation, which was a condition of the IRC's order. 64On the employer's application for judicial review, this Court held that the IRC had exceeded its jurisdiction and had misconstrued the limits of its powers by making an order outside the scope of s 89. Spigelman CJ (Tobias JA and Handley AJA agreeing) observed, at [21], that the condition that the appellant was not to return to work and would resign from the position was inconsistent with the concept of an order to 're-employ the applicant' within the meaning of s 89(2) and that there was no power to order 're-employment' that involved no return to work at all: see Blackadder at [13]-[15], [33]-[34], [43]-[44], [65] and [69]. As discussed above, the effect of those passages is that the order for reinstatement has to be "real and practical, not illusory and theoretical": see Blackadder at [33] per Kirby J. Spigelman CJ concluded, at [22], that: "... a condition requiring a person to resign and not return to work is outside the permissible sphere of any order capable of answering the description of an order 'to re-employ'."

Retail Traders Association of NSW v Shop, Distributive & Allied Employees Association of NSW 65It will be recalled that Moore J in Blackadder had referred with approval to Retail Traders Association. The issue on the appeal to the Industrial Commission of New South Wales (the Industrial Commission) in Court Session in that case was whether the Industrial Commission had power to make an order that an employer reinstate a person to his former employment in circumstances where the person had died after the date of dismissal but before the Industrial Commission's determination of the application for reinstatement brought by the person's union. Reinstatement was important as the superannuation payout to the worker's family was affected by the date of termination. At first instance, Hungerford J held that the employee's termination had been harsh, unjust and unreasonable and made an order reinstating the deceased to his employment as from the date of termination. 66Cahill VP (Glynn and Maidment JJ agreeing) held that the order for reinstatement was beyond the jurisdiction of the Industrial Commission and was, in effect, a nullity. His Honour stated, at 46: "I consider that that term essentially and fundamentally requires that the employment relationship formerly existing between the employer and employee can, as a matter of reality, and not in some notional or fictional way, be re-established." 67As the employee had died, there could be no resumption of the employer-employee relationship. 68His Honour considered that there was no jurisdiction to impose an obligation on an employer, a breach of which was punishable by law, which was impossible of compliance. His Honour also expressed the view, at 54, that an application for reinstatement that was a device to secure some other objective may be an abuse of legal process. Further, his Honour considered that an industrial tribunal, in the exercise of its discretion, would refuse to make an award that was effectively a fiction. 69Cahill VP also considered that an order for reinstatement could not be made retrospectively and stated, at 51. "I find it difficult to accept the practicability of such a requirement insofar as its retrospective operation is concerned. It directs the re-establishment of a relationship at a time when, in fact, no such relationship existed and when, indeed, the employee may have been in employment with another employer. It seems to me that the retrospective term of such an award is impossible of compliance and is beyond power to make." 70His Honour noted that an employee could be protected from the adverse consequences of an unfair dismissal by the Court's exercise of its powers under the additional statutory provisions now contained in s 89(3) and s 89(4) for the payment of an amount of money equivalent to the employee's remuneration between the date of the dismissal and the date of reinstatement and an order for the employee's continuity of employment. His Honour concluded that the award of reinstatement was outside the jurisdiction of the Industrial Commission, as compliance with the award was impossible.

The Full Bench's reasons 71The Full Bench stated, at [118], that Blackadder was authority for the proposition that "the purpose of a reinstatement order is ... to ensure that the employee in question is placed in the status quo ante" (original emphasis). The language relied upon by the IRC was adopted from Kirby J's judgment in Blackadder, set out above at [58]. The Full Bench considered, at [119], that Blackadder did not support the proposition that an order for reinstatement was unavailable in circumstances where an employee was unable to perform work because of some disability or injury at the time that the reinstatement order was made. Such an interpretation, according to the Full Bench, would have been inconsistent with Hayne J's statement, set out above at [59], that "reinstatement by reappointing to a former position requires the recreation of the circumstances of employment that preceded the termination". 72The Full Bench continued, at [119], that in Blackadder, 'work' became a focal point, because what was relevant in that case was the particular type of work that was performed by the employee prior to termination. The Full Bench dismissed the submission, at [122], that Blackadder required that in all cases where an order of reinstatement was made there was a requirement: "... that the person reinstated must engage physically and/or mentally in the performance of work in the job the person occupied immediately prior to dismissal." 73The Full Bench continued, at [123]: "Moreover, reinstatement is not the same as re-employment. As it was pointed out in Blackadder, to reinstate is to restore the status quo ante or to recreate the circumstances of employment that preceded the termination. Because it was concerned with the meaning in a statute of 'to reinstate' and the meaning of 'position', Blackadder did not involve any question of whether, at common law under a contract of employment, actual work must be provided for an unlawfully terminated employee ..." (emphasis added) 74The Full Bench distinguished this Court's decision in Casari, stating, at [127], that Casari was not concerned with restoring the status quo ante under s 89(1). Rather, the issue was whether an order could be made that a person be re-employed under s 89(2) on the condition that the person immediately resign. In that regard, the Full Bench stated, at [128]: "As to the latter, whether reinstatement requires or involves the performance of work will depend on the factual circumstances of employment that preceded the termination." 75The Full Bench also considered, at [127], that: "Blackadder ... is not authority for the proposition that if an employee is unable to perform work because, for instance, of some disability or injury at the time the reinstatement order is made that fact precludes an order for reinstatement ..." 76The Full Bench also distinguished Retail Traders Association of NSW v Shop, Distributive and Allied Employees Association of NSW on the basis that in that case, there was no person to reinstate to employment. 77The Full Bench considered, at [134]: "There can be no doubt that a state of employment will exist notwithstanding the employee may, temporarily, be unable to perform work. It may also exist even though an employee becomes permanently incapacitated and in such circumstances the state of employment will continue until such time as either party takes steps to end the employment relationship or the doctrine of frustration operates." 78The Commissioner contended that the Full Bench misconstrued the High Court's reckoning in Blackadder. He submitted that critical to the notion of 'reinstatement' was "a return to active duties". In this regard, the Commissioner relied upon the joint judgment of Callinan and Heydon JJ, quoting Moore J's dissenting judgment (set out above, at [51]) and [77] of the joint judgment, where their Honours stated: "...it is almost unthinkable that the Commissioner would have made an order that the appellant be reappointed had he thought that the appellant would either not be able to perform, or would not be allocated actual work by the respondent for him to do. The order made by the Commissioner should be read as Moore J in dissent in the Full Court preferred to read it, as an order intending that the appellant be reinstated, and that he be given work to do of the kind which he had done in the past." (Commissioner's emphasis) 79In respect of the reference to 'status quo ante' by Moore J and Kirby J, the Commissioner submitted that this was: "... merely a reference to the identification of the actual work the employee was doing at the time of dismissal, with a reinstatement order only being 'appropriate' because he was still fit to do that work." 80The Commissioner submitted that an order of reinstatement must be made with regard to the applicant's "current fitness for work". The reinstated employee must be "ready, willing and able to work and would be given work to do". If an employee was not able to perform work, the IRC would, on the Commissioner's submission, be able to make an award for compensation pursuant to s 89(5). 81The Commissioner contended that the Full Bench wrongly found that Casari did not apply to reinstatement under s 89(1) on the basis that the remedies available under s 89(1) and s 89(2) were different. The Commissioner submitted that where the applicant was permanently unable to perform any duties for the employer then there was no relevant distinction between the remedies available under s 89(1) and s 89(2), as neither remedy was available. Therefore, the Full Bench erred in distinguishing Casari and by not correctly applying Blackadder in respect of the expression "reinstate". 82The Commissioner further submitted that the Full Bench erred in distinguishing the decision of Retail Traders Association of NSW v Shop, Distributive and Allied Employees Association of NSW, as that decision correctly held that reinstatement orders are directed at re-establishing employment relationships for the future, but only where it is practicable for that to occur. 83Mr Ross contended that police officers, who are unfit or incapable of performing their duties as police officers, still occupy the position of a police officer until the Commissioner causes the officer to be retired pursuant to s 72A of the Act. Mr Ross further contended that the Full Bench had been correct in finding that the fact an employee was temporarily or permanently incapacitated from performing work did not of itself bring a contract of employment to an end. Rather: "[The] contract of employment will continue until one party takes steps to end the relationship or the doctrine of frustration operates." 84The Commissioner further contended that the jurisdictional error in this case flowed from the IRC's failure to recognise that the question of an appropriate remedy is assessed not by reference to the facts prevailing as at the date of dismissal, but by reference to the facts and circumstances prevailing as at the hearing of the unfair dismissal application: see Retail Traders Association of NSW v Shop, Distributive and Allied Employees Association of NSW; Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia [1987] HCA 63; 163 CLR 656 at 666 and Australasian Meat Industry Employees Union v Sunland Enterprises Pty Limited (1988) 25 IR 137. In this context, the Commissioner submitted that the IRC was required to focus upon whether it was reasonable at the time of its decision to make an order for reinstatement or re-employment that re-established the employment relationship between the parties, in circumstances where "the order speaks prospectively": see Retail Traders Association of NSW v Shop, Distributive and Allied Employees Association of NSW. 85It followed, on the Commissioner's submission, that the purpose of the reinstatement here, in circumstances where Mr Ross was unable to provide services to the NSW Police Force, was for the collateral purpose of enabling Mr Ross to access such workers compensation entitlements he had prior to his dismissal.

Consideration 86Although the Commissioner advanced three arguments in support of the contention that the Full Bench committed jurisdictional error, those arguments essentially reduced to the single proposition that the IRC had no power to make an order for reinstatement where a person was not able to perform work. The Commissioner relied upon the statements in Blackadder to which I have referred and, in particular, the notion that reinstatement involves something more than reinstatement of the contract of employment, but requires that the employee "is to be given back his job": at [116] per McHugh J; that the reinstatement is meant to be "real and practical, not illusory and theoretical": at [33] per Kirby J; the requirement that the employer is required to "provide work to the employee": at [44] per Hayne J; or to provide the employee with "actual work to do": at [75] per Callinan and Heydon JJ. 87The order for reinstatement was that Mr Ross be "reinstated to the NSW Police Force". As a matter of jurisdiction, that order could only be made if it fell within the purview of s 89(1), which empowers the Court to make an order "to reinstate the applicant in his ... former position". This involves the construction of the provisions of both the Police Act and the Industrial Relations Act. 88This raises an initial question as to what Mr Ross' former position was. This in turn requires a consideration of the provisions of the Police Act which governed Mr Ross' engagement as a member of the NSW Police Force. 89Given that Mr Ross was not at work and was in receipt of workers compensation payments at the time of dismissal, he was not then subject to any direction or instruction by the Commissioner to perform any particular duties. He was, nonetheless, still a police constable entitled to all the benefits and entitlements of his employment and subject to not being able to perform work, was subject to the obligations imposed upon a member of the NSW Police Force by this Act and Police Regulation 2008. Mr Ross' allocated duties prior to being off work on workers compensation payments had been those of acting in the position as a Target Action Group and General Duties Sergeant. Immediately prior to that, he was on non-active duties, undertaking, inter alia, a firearms audit. Having regard to these matters, it would appear that there are two possible answers to the question what Mr Ross' "former position" was: namely, that he was a police constable in the NSW Police Force; or that he had no position at all, notwithstanding that he was still employed by the NSW Police Force, as a police constable on workers compensation benefits. 90There is then a second and fundamental question as to whether s 89(1) permits reinstatement in circumstances where Mr Ross is permanently unfit to perform the work of a police constable. 91The starting point for any question of statutory construction is the statute itself. In the present case there are two statutes that call for construction: the Police Act and the Industrial Relations Act. The Industrial Relations Act, s 89(1) empowers the IRC to order the employer to: "... reinstate the applicant in his or her former position on terms no less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed." 92Two things are to be noticed about this provision. First, the word "position" is undefined. Secondly, the section does not refer to reinstatement of the contract of employment. However, as is apparent from Blackadder, the section requires that as a minimum. In Blackadder, the order made by the AIRC had been predicated upon the employee being reinstated to the actual work he was doing at the time of the wrongful dismissal. That was a job undertaking a certain type of boning work: see at [47] above. The point made in the judgments of the High Court was that reinstatement was not confined to the mere restoration of the contractual employer/employee relationship. Hence the emphasis on the ordinary meaning of the word "reinstate" as being "put back in place" and, relevantly on the facts of that case, that the employee be "put back in place to the position" he had held at the time of the dismissal. As McHugh J pointed out, reinstatement, in the context being dealt with in that case, required the employee to be given back his job. However, the fundamental proposition made in each of the judgments, as I understand them, was that the contractual nexus between the parties as it was prior to the termination must be re-established. 93The Police Act, s 3 defines a police officer to mean "a member of the NSW Police Force holding a position which is designated under this Act as a position to be held by a police officer". The Police Act, Pt 2 specifies the services a police officer is to perform, including to provide police services as directed by the Commissioner: s 6 and s 8. The word "position" as it appears in the Police Act is not defined and arguably is used in two senses, to mean both the rank that a police officer holds, as well as the particular duties the officer is allocated or instructed to perform at a particular time. Thus, s 10(4) provides that: "Police officers of the rank of constable ... are to be appointed to that rank or to a grade within that rank, and hold a position (but not a separate position) in the NSW Police Force." 94The language of s 10(4) is not particularly clear. A possible construction of s 10(4) is that the reference to "hold a position" is declaratory in the sense that it provides that an officer, who is appointed to the position of constable, holds that position, albeit that the position is not separately determined or designated by the Commissioner, as the Commissioner is required to do under s 11. That construction is consistent with s 10(1), which specifies that "Commissioner" is a position and with s 11 as I explain below. If that is correct, s 12 would be seen to operate not so as to give any different meaning to "position" in s 10, but to provide additionally for ranks and grades of police officers in their positions as police officers. Further, s 13 refers to a police officer exercising the "functions of a police officer" and s 14 refers to a police officer having the other functions that are conferred by law. These sections indicate that there is a differentiation in the Police Act between the position of a police officer and the functions and duties a police officer is required to carry out. 95The operation of s 11 is then to be understood in this context. That section provides that the Commissioner is required to "designate the positions in the NSW Police which are to be held by police officers". Section 11(2) provides that such a position is to be so designated if the holder is to carry out operational duties. The intent of this provision is to ensure that members of the NSW Police Force, who are not police officers, do not carry out police work. However, it would be impractical for the Commissioner to designate a position for every individual police constable in the force. It is for that reason that s 10(4) operates in the way I have indicated. 96There are, however, a number of provisions where the word "position" within the Police Act means the particular job a police officer is allocated and which indicate that "position" when used in the Act refers to particular duties to be performed by a police officer. Whilst the Commissioner may create, abolish or otherwise deal with any position in the NSW Police Force in accordance with the Police Act: s 10(2), the composition of the NSW Police Force is fixed by s 5 and includes "all other police officers ... employed under this Act". Section 12, as I have indicated, then provides for the various ranks and grades of police officers. However, s 10 would not enable the Commissioner to abolish one of the ranks specified in s 12. Those ranks are created by statute and statutory amendment would be required to change them. 97Section 63, which provides a definition of "vacant position", likewise supports the argument that police constable is not a position as such. There are other provisions that support this construction, but it is sufficient finally to refer to s 72, which provides for the circumstances in which a non-executive police officer's position becomes vacant. Even if a position becomes vacant, the police officer does not thereby cease being a police officer of a specific rank. 98The provisions to which reference is made in the previous paragraph clearly use "position" in the sense of particular duties or particular jobs. The provisions referred to above at [94] may also indicate that the word "position" is used in that sense. Usually, in accordance with the principles of statutory construction, a word bears the same meaning throughout a statute. If that tenet of construction applies to the Police Act then "position" in the Police Act is likely to mean the designation of particular duties or duties that are allocated to a particular officer. If that is the correct construction of the word "position", Mr Ross did not in fact hold a "position" within the meaning of the Police Act at the time of his termination, as he was not doing any work. Rather, he was a police constable on workers compensation. 99However, given the express terms of s 10(1) in particular, and what I suggest is the correct construction of s 10(4), the tenet of construction to which I have referred may not apply in the present case. In any event, the fundamental question for determination is whether an order for reinstatement within the Industrial Relations Act, s 89(1) may, as a matter of jurisdiction, be made, notwithstanding that a person cannot be reinstated for the purposes of doing work. It is implicit in the question posed in this way, although in this case not critical to the outcome, that the order of reinstatement operates from the date it is made: see Retail Traders Association of NSW v Shop, Distributive and Allied Employees Association of NSW. Mr Ross did not argue that this approach was wrong. 100It is apparent from what I have said thus far that there may be a distinction between the position held by an applicant at the time of dismissal and the specific circumstances in which an employee may be in at the time of dismissal. The question is whether that is a critical distinction. There are two responses to that. First, "position" in s 89(1) should not be read in a restrictive way: see Blackadder at [75] per Callinan and Heydon JJ. Secondly, the resolution of whether the IRC committed jurisdictional error depends essentially on whether "reinstatement to [the applicant's] position" within the meaning of s 89(1) requires reinstatement to do work, being the work the person was doing in the "position" he held as at the date of termination. If reinstatement requires that the applicant is to perform work, a reinstatement order in this case would be beyond jurisdiction. The question can also be posed in the following terms: can an order be made under s 89(1) where a person does not hold a particular job at the time of termination of his employment and is permanently unfit to do any work in the employment in which he had been previously engaged? 101There is force in the argument that as Mr Ross cannot perform any work as a police officer, he cannot be reinstated. This view is predicated upon the ordinary notion that a contract of employment involves the engagement of a person to do work. Section 89(2) provides support for this approach in that it provides that where reinstatement is not practicable, the IRC may order the employer to re-employ the applicant in another position that the employer has available. Thus, in a case where a person was wrongfully dismissed and although was physically unable to perform the work he or she was performing immediately before the dismissal, was capable of doing some other job, the appropriate order would be an order under s 89(2). It might seem odd then if an order was made under s 89(1) where a person could not work at all. 102Section 89(5) also supports a construction that "reinstatement" in s 89(1) requires that a person be able to perform work. That section refers to the payment of compensation where the IRC considers it would be impracticable to make an order for reinstatement or re-employment. Reinstatement and re-employment may be considered to be impracticable for a variety of reasons, including that a person is unfit or because a job has been abolished so that reinstatement is not practicable for that reason. 103By contrast, the argument in support of the validity of the order depends upon whether reinstatement in this case requires the person to be able to perform the duties of a police officer, as opposed to being able to receive the entitlements of a police officer without the rendering of services in return. This in turn depends upon whether an order may be made under s 89(1) which merely reinstates the person to that person's contractual relationship. As I have already said, the legislation requires that an order for reinstatement is to the person's former position. 104The decisions upon which the Commissioner relied to argue that reinstatement required the performance of work involved the application of a relevantly similar statutory provision to particular factual circumstances. In Blackadder, McHugh J observed, in the context of the particular factual circumstances of that case, that the power to order reinstatement empowered the AIRC to do more than restore the contract of employment. However, as Hayne J stated, it was the contractual nexus that had to be reinstated. Callinan and Heydon JJ stated that reinstatement "literally means to put back in place" and that the words "reappoint" and "position" in the section should not be read in a restrictive manner. It is arguable, therefore, that the express words of the statute do not compel the IRC to do more, by its order, than restore the person's contract of employment, if that is all that can be done. That, in fact, would be a reinstatement to the person's former position. In the present case, that would mean reinstating Mr Ross to his employment, or position, if my understanding of s 10(4) is correct, with the NSW Police Force as a constable in receipt of workers compensation benefits. However, it must be stressed that different factual circumstances would compel a different practical result as was the case in Blackadder. 105Accordingly, I have reached the conclusion, not without great hesitation, that it is possible for the Commissioner to comply with the order for reinstatement. Mr Ross can be reinstated as a police officer with the rank of constable, in accordance with his contract of employment. The Commissioner will be obliged to recognise his entitlement to workers compensation on the basis that he is permanently disabled. The Commissioner will also be entitled to exercise his powers under the Act, including his powers under s 72A. Those are matters that are to be worked out as between the Commissioner and Mr Ross in accordance with their respective statutory rights and obligations. For his part, Mr Ross will be required to observe the obligations imposed on him under the Police Act. 106It follows, in my opinion, that the application for judicial review should be dismissed with costs. 107HOEBEN JA: I agree with Beazley JA and the order which she proposes. 108TOBIAS AJA: I agree with the order proposed by Beazley JA generally for the reasons she has expressed. However, I would wish to add some comments of my own. 109Section 89(1) of the Industrial Relations Act provides that an applicant can only be reinstated to his "former position". He must, therefore, hold a "position" at the time of his dismissal. As Beazley JA correctly observes at [88] of her reasons, this raises the question as to whether and what "position" Mr Ross held at that time. 110In order to answer this question, it is necessary to construe the word "position" in s 89(1). The only relevant "position" Mr Ross held at the time of his dismissal was that of a "police officer". This raises a difficulty in the present case as a "police officer" is defined in s 3 of the Police Act to mean a member of the NSW Police Force "holding a position which is designated under this Act as a position to be held by a police officer". 111However, the word "position" in ss 3, 10 and 11 of the Police Act does not have the same meaning as it has in s 89(1). As Beazley JA observes at [92] of her reasons, its preferable meaning in that provision is "job": cf Blackadder per McHugh J at [116]. If that be so, then as her Honour concludes at [101] of her reasons, Mr Ross could be reinstated to his "job" as a police officer, that being the only "position" he held at the time of his dismissal. 112The meaning of the word "position" in the Police Act, as Beazley JA notes at [98], is one involving particular duties or jobs as determined or designated by the Commissioner pursuant to ss 10 and 11 of that Act and allocated to a particular police officer. Mr Ross did not hold such a position at the time of his dismissal. 113Accordingly, subject to one matter, Mr Ross could not be reinstated as a "police officer" given the definition of that term in s 3. In other words, as he did not hold a position designated under the Police Act as a position to be held by a police officer, he could not be a "police officer" as defined. 114However, the solution to this conundrum is in my view to be found in s 10(4) of the Police Act which is set out at [20] of Beazley JA's reasons. Her Honour has dealt with that provision at [94]. In my view a person who is appointed a member of the NSW Police Force with the rank of constable is not appointed to the "position" of constable. The effect of s 10(4) in my opinion is, in effect, to declare that a person appointed to the rank of constable holds an unallocated "position" in the NSW Police Force, albeit one which is not determined or designated by the Commissioner pursuant to ss 10 and 11 of the Police Act. Given that the majority of the Force are of the rank of constable, it would be impracticable for the Commissioner to designate each to a "separate position" pursuant to s 11(1) of that Act. 115Accordingly, s 10(4) solves this problem by declaring that a police officer of the rank of constable holds a "position" in the Force without that position having to be separately designated or allocated by the Commissioner. It thus follows that Mr Ross did hold a "position" under the Police Act and was, therefore, at the time of his dismissal, a "police officer" as defined. 116Furthermore, as a police officer he held a "job" to which he could be reinstated. The fact that the could not perform that job due to incapacity at the time of his dismissal did not, as Beazley JA has concluded, disqualify him from being reinstated to his job as a police officer with the rank of constable.

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