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.