Commissioner of Police v Ross

Decisions at first instance 4Having heard evidence and submissions, on 6 October 2010 the primary judge issued a Statement in the following terms:

1. I have reached the preliminary view in this matter that the decision of the Commissioner of New South Wales Police, made pursuant to s 181D of the Police Act 1990 to remove Mr Jamie Ross from the New South Wales Police Force, was harsh in the relevant statutory sense and that relief should be granted to him.
2. However, in light of the decision of the Supreme Court of New South Wales, Court of Appeal in Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47, and having regard to the medical reports of Dr WD Wade, Consultant Psychiatrist, Dr RF Peters, Consultant Psychologist and Dr R Kaplan, Consultant Psychiatrist, HealthQuest, that Mr Ross is not fit for employment in the New South Wales Police Force, it may not be open to me to order the reinstatement, or re-employment of Mr Ross pursuant to the combined operation of s 181G of the Police Act 1990 and s 89 of the Industrial Relations Act 1996.
3. I therefore direct the parties to immediately arrange for the re-examination of Mr Ross by HealthQuest to obtain an up to date medical assessment of his fitness to be employed in the New South Wales Police Force.
4. When the relevant medical report is available, the parties should contact my associate to arrange a short hearing when the report can be tendered and the Commission may hear submissions as to what orders could, or should be made. 5The Police Commissioner responded to these directions by applying for judicial review in the Court of Appeal. However, in the absence of a contradictor in the Court of Appeal (explained by Staff J at [5]-[6] of his Honour's first decision) the appellant proposed to the primary judge, with Mr Ross's agreement, that his Honour revoke his directions of 6 October 2010, which would result in the discontinuance of the Court of Appeal proceedings, and that the matter should proceed before the primary judge on the material already before him. 6The primary judge acceded to the Commissioner's proposition and, in doing so, directed the parties to file further submissions in respect of whether, in light of Mr Ross' unfitness for employment, it was open to his Honour to order reinstatement, or re-employment of Mr Ross. The submissions were subsequently filed. 7In the first decision the primary judge considered the respondent's employment history, noting the respondent was attested as a Constable on 19 May 1996. He was promoted to Senior Constable on 10 August 2001. He also completed 552.5 hours relieving as a Target Action Group and General Duties Sergeant throughout 2006 and 2007. During 2007, the respondent spent six months performing "A" list duties in the Lower Hunter Local Area Command Detectives office as well as performing duties as a Street Level Operative for the Undercover Branch. 8His Honour also considered the evidence regarding the respondent's psychiatric condition, noting the respondent had been subjected to violent incidents in 2002 and 2003, that he had begun to exhibit symptoms of anxiety and became unwell leading to time off work between September 2003 and January 2004, that he had been diagnosed with Post Traumatic Stress Disorder in 2004, and that he had again been referred to a psychiatrist in 2007 and commenced treatment under a psychologist in that year. In October 2007, the respondent's psychiatrist, Dr Wade, considered the respondent to be "totally and permanently incapacitated for work as an operational police officer" and advised medical retirement. In his report dated 25 October 2007, Dr Peters, a psychologist, also concluded the respondent should be medically retired. 9Subsequently, as the primary judge stated at [34] of his first decision: [34] ... On 14 May 2008, the applicant was required by the respondent to be examined and assessed by Dr R Kaplan of HealthQuest. In a report dated 20 June 2008, Dr Kaplan determined the applicant had a partial permanent disability because of an Adjustment Disorder with Depression and Chronic Anxiety. He further determined that, "Whilst it does not appear that Senior Constable Ross could perform Operational Police duties, it has been anticipated that he may be able to successfully undertake some carefully chosen administrative duties within the Police Force." The applicant appealed the HealthQuest report. In a letter signed by Dr Ian Gardner, Chairman HealthQuest Appeals Committee, dated 13 October 2009, the HealthQuest Appeals Committee upheld the appeal and stated that the applicant was "permanently unfit to return to your substantive position or any other position with the NSW Police." 10The primary judge addressed the evidence in the proceedings. In addition to the respondent, two former police officers were called in the respondent's case, Mr Brett Godfrey and Mr Joshua Pimm. Mr Godfrey was in charge of the original investigation into the June 2006 incident and reported to Detective Constable White. 11The primary judge referred to the report into the incident by Detective Constable White who relevantly found in respect of the "Unreasonable Use of Force" issue that: Considering the evidence, Senior Constable Ross appears to have acted in accordance with the directions of the Police Service handbook relating to the use of OC Spray. No information that suggests that Senior Constable Ross acted other than for the protection of Travalos has been disclosed. 12In respect of the "Disobey Reasonable Direction" issue, Detective Constable White found: There is insufficient information to warrant action against Senior Constable Ross for this issue. Senior Constable Hawkins has recorded she refused to speak with Senior Constable Ross about the incident with Travalos. Senior Constable Ross, in the electronically recorded interview, states he was speaking with Senior Constable Hawkins about the result of the event rather than then [sic] spraying incident of Travalos. 13The primary judge noted Mr Godfrey, who had been the respondent's supervisor and had "never let his personal feelings or beliefs get in the way of an investigation", agreed with Detective White's findings. 14Mr Pimm, his Honour observed, was a former operational safety trainer with the Police Force. Mr Pimm's evidence was that generally, in his opinion, a one second burst of OC spray would be appropriate to subdue a person. This, he said, was dependent upon whether a threat of violence continued or not. He agreed that decontamination after being sprayed should occur as soon as practicable. He disagreed with counsel for the appellant's suggestion that being sprayed with OC spray was very painful. The primary judge recorded the following evidence given by Mr Pimm: Q: What would you say about the reason was [that] of giving a person a three-second burst from about a metre away straight in their face? A: It's fine. Q: In the back of the van with their handcuffs behind them? A: Possibly. Q: 17 year old not known otherwise to police - not as a local criminal or anything? A: Depends on the circumstances. Q: This young man's in the back of the vehicle, you have got the photos there, it's a confined space, his hands are cuffed behind him, three-second burst in the face; do you say that could possibly be reasonable just for the fact he was kicking the inside the van? A: I have used a full eight-second burst on someone. Q: In what situation? A: Not in this exact circumstance, but some people just don't react to the OC spray as other people would. It's a situation where different people are affected differently by the OC spray. It's the same as anything, you may be able to eat a hot chilli whereas I cannot. 15For the appellant, Senior Constable Hawkins, Senior Constable Scott and Mr Travalos gave evidence. The respondent also tendered documentary evidence described at [59] of his Honour's first decision. 16Included in the appellant's evidence were written statements from Mrs Helen McGee and Mr Reginald McGee both dated 19 September 2006. Mr and Mrs McGee witnessed the arrest of Mr Travalos and saw him being placed in the police vehicle. The primary judge referred to what Mr and Mrs McGee had said in the following terms: [61] ... Mrs McGee described his behaviour as "extremely aggressive and violent" and said she was "shocked by the noise he was making inside the truck." She said that after a while the rocking stopped and "the male settled down". She was unaware as to why he settled down. In his statement, Mr McGee said the kicking from inside the police vehicle sounded like Mr Travalos was demolishing it from the inside. He said, "I am of the opinion that the male must have had his back against one wall of the truck and was kicking into the other side with his feet. The truck was rocking so much that I said to Helen 'He'll have very sore feet in the morning.'" Mr McGee said the kicking continued in the truck until after a short period of time he settled down. Mr McGee was unsure why. Mr Skinner conceded that less weight should be accorded to this evidence than the evidence of those witnesses who were subjected to cross-examination. 17In his consideration of the "unreasonable force" ground the primary judge: (a)referred to the respondent's appeal in the District Court against his conviction for assault, noting that the judge was "unable to conclude to the required standard that the actions (of Mr Ross) were unreasonable" and upholding the appeal. The primary judge noted that removal of the respondent occurred prior to the Commissioner knowing the outcome of the appeal; (b)referred to the environment at the community event on 10 June 2006 and that the fears of police that there was a potential for further anti-social behaviour at this event, as had occurred in previous years, was well founded; (c)described Mr Travalos' behaviour as "jumping around in the van like a gorilla in a cage" and the evidence that Mr Travalos was "pretty drunk"; (d)referred to the conflicting evidence of the respondent on the one hand and Hawkins and Scott on the other, about when the noise in the van ended prior to the respondent opening the door of the van, but determined the difference in the evidence was not decisive to the outcome of the review; (e)referred to the conflicting evidence of the respondent on the one hand and Hawkins and Scott on the other regarding whether Mr Travalos kicked out at the respondent, but again determined it was unnecessary to resolve this conflict in the evidence; (f)found the decision of the Magistrate convicting the respondent of no assistance, but found the decision of Frearson DCJ, whilst not binding, persuasive. His Honour stated that significant weight must be accorded to the findings of Frearson DCJ that the actions of the respondent were not unreasonable. This was a matter that the appellant did not take into account and may have resulted in a significant injustice being placed upon the respondent; (g)referred to Mr Pimm's evidence that it was open to the respondent to form the view that it was appropriate to use OC spray. His Honour noted this was not challenged other than to the effect that Senior Constable Hawkins was not necessarily wrong when she formed her view that the use of OC spray was inappropriate. His Honour further noted the appellant did not call any evidence that contradicted the evidence of Mr Pimm that if the respondent formed the view, due to the circumstances, to use the OC spray, then it was an appropriate use of the spray. His Honour stated that Senior Constable Scott, in cross-examination, conceded that if there was a belief held by an officer that a detained person in a van was liable to injure him or herself, then the use of OC spray was appropriate; (h)considered an inference could be drawn that the appellant, prior to issuing the Notice pursuant to s 181D(1) of the Police Act, had given consideration to the fact that the respondent was, as a result of injuries sustained during the course of his employment, possibly no longer able to fulfil his duties of office. However, his Honour noted the appellant proceeded to determine the complaint pursuant to s 181D prior to a decision being made by HealthQuest which found the respondent unfit. His Honour expressed the view that it was incumbent upon the appellant to consider all relevant material before he made a decision that he no longer had confidence in an officer which resulted in the termination of employment; (i)accepted the medical evidence that the respondent had a pre-established injury (PTSD). His Honour expressed the view that the respondent may well have played some part in how he perceived the intensity or severity of what was occurring on that particular night. His Honour observed the description by the respondent of his mental process and his thoughts on the evening of 10 June 2006 were never challenged. 18In his consideration of the "wilful disobedience" ground the primary judge: (a)found that at all times, the respondent conceded that he erred in approaching and speaking to Senior Constable Hawkins after being directed not to contact any officers involved in the incident; (b)found that the respondent did not have an improper motive in speaking to Senior Constable Hawkins. His motive was that he "just want to make sure it's nothing personal"; (c)held that whilst disobeying of a reasonable direction by a police officer was a serious matter, the question that needed to be determined was whether, in the circumstances of this case, the failure by the respondent to strictly follow a directive should result in a finding of loss of confidence leading to dismissal. 19The primary judge further found as follows: (a)the respondent has become incapacitated for further police work and carrying out his normal duties as a result of an injury sustained in the course of his employment. The injury first occurred prior to and independently of any circumstance related to the Notice under s 181D(1) of the Police Act. There were therefore, on the medical evidence, mitigating circumstances with respect to the respondent's actions on 10 June 2006. This included his state of mind by which he sought to explain his conduct; (b)the appellant did not put in issue either the medical condition or the effect of the medical condition upon the respondent. The appellant did not address the question of the unjustness that may arise in circumstances where the termination of an officer for conduct that was effected by, or caused by a medical condition brought about by the duties required by his service and not through any act of misconduct; (c)the respondent was remorseful in respect of his failure to comply with the directive, stating he certainly should not have spoken to Senior Constable Hawkins; (d)removal of the respondent resulted in him forfeiting any rights he may have pursuant to the Crown Employees (Police Officers Death and Disability) Award 2005. He may have been entitled as a result of the injuries suffered by him, prior to the incident and in the course of his duties, a benefit pursuant to the Award. His removal also impacted upon his superannuation entitlements; (e)the Commission was confronted with a situation where the key basis of the decision of the appellant (the decision of the Magistrate) for removing the respondent had dissolved; (f)striking a proper balance between the competing interests embodied in s 181F(3) of the Police Act, the removal of the respondent from the NSW Police Force was harsh in its consequences for his personal and economic situation: Wells v Commissioner of Police [2000] NSWIRComm 157; (2000) 100 IR 106 at 118. If the removal was to stand, the respondent's future life would be severely affected. Removal in those circumstances, having regard to the respondent's conduct, would be too harsh a sanction. 20The primary judge proceeded to consider the question of remedy. His Honour rejected the notion that there was power to reinstate or re-employ him under s 89 of the Industrial Relations Act 1996 ("IR Act") and then order the appellant to medically retire the respondent under s 72A of the Police Act. 21After considering the decision of the High Court in Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539, the Court of Appeal's decision in Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47; (2010) 193 IR 244 ("Casari") and the decision of the Full Bench of this Commission in Commissioner of Police v Eade-Smith [2010] NSWIRComm 162; (2010) 200 IR 424 ("Smith"), the primary judge determined as follows at [123]-[125]: [123] In this case, in view of the agreement between the parties to act on the medical reports relied upon during the hearing, the question that is before the Commission for determination is whether the dismissal was harsh and although the applicant was unfit for employment in the NSW Police Force, that was the position when he was dismissed and that remains the current situation. Therefore, bearing in mind this situation, I do not consider that it is appropriate to find that it is impracticable to order reinstatement of the applicant. Although certain consequences may follow from this finding within the NSW Police Force including possible termination, because the applicant is not fit for employment, the provisions of Pt 8, Protection of injured workers from dismissal of the Workers Compensation Act may apply (see also Australian Salaried Medical Officers' Federation (NSW) v Central Sydney Area Health Service [2005] NSWIRComm 339; (2005) 147 IR 56 and the discussion of the majority, Wright J President and O'Neill C; Staunton J dissenting, of the definition of "injured worker"), or dismissal on some other basis, as Kirby J observed in Blackadder at [34]: I agree with Callinan and Heydon JJ [43] that Moore J in the Full Court of the Federal Court gave the correct analysis of what might happen in the future if the appellant were unable, or unwilling, to perform the work of his former position as a boner in the chilled boning room (or such other work as was later assigned to him) [44]. The purpose of a reinstatement order is to ensure that the employee in question is placed in the status quo ante [45]. 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. [124] The status quo ante (position prior to the decision to terminate) should therefore prevail. The appropriate order is that the applicant is reinstated. [125] I will hear the parties in respect of what orders, if any, should be made in respect of continuity of service (s 89(4)). If the parties are content to have this issue determined on the provision of written submissions, the parties have leave to approach my associate in this respect. Such leave should be exercised within seven days of the date of this decision. 22In his Honour's second decision, the primary judge made the following orders:
5. The applicant's removal under s 181D(1) of the Police Act 1990 was harsh.
6. The applicant is reinstated to the NSW Police Force.
7. The Commission orders that the respondent pay to the applicant an amount which equates with the remuneration that the applicant would, but for being dismissed, have received in the intervening period between dismissal, reinstatement, and/or medical retirement, less any amounts received as payments in respect of workers compensation or derived from alternative employment. This amount is to be paid as soon as practicable and within 21 days from the date of this decision.
8. The Commission orders that the period of employment of the applicant with the employer shall be taken not to have been broken by the dismissal. The intervening period between dismissal and reinstatement of the applicant shall be counted for all purposes as a period of employment.
9. The parties have liberty to have the matter restored to the list to determine any dispute that may arise in respect of order 3.

Appeal grounds 23In the original application for leave to appeal and appeal there were four appeal grounds: 1)In all the circumstances his Honour erred in holding that the removal of the respondent was "harsh" in the statutory sense, because: a)his Honour incorrectly applied a subjective test, i.e. the respondent's own belief, to the question of whether the use of force by the respondent upon the young person on 10 June 2006 was reasonably necessary; and/or b)his Honour placed too great a weight upon the personal and economic consequences to the respondent of his dismissal. 2)His Honour erred at [123] of his judgment dated 14 July 2011 in not holding that it was impracticable to order reinstatement of the respondent to his former position. 3)In the circumstances of his Honour's finding that the current situation of the respondent is that he is unfit for employment with the appellant, Order 2 made by his Honour in paragraph 11 of his judgment dated 7 September 2011 is ultra vires. 4)Order 3 made by his Honour in paragraph 11 of his judgment dated 7 September 2011 is ultra vires because it purports to bestow upon the respondent an entitlement to payment of monies additional to those provided for by Division 2 of Part 3 of the Workers Compensation Act 1987. 24The fourth ground of appeal was not pressed. 25At the commencement of the hearing of the appeal the appellant sought to rely on supplementary written submissions designed, it was said, to expedite the proceedings. However, the respondent raised an objection on the basis that the supplementary submissions went to matters beyond those identified in the grounds for leave to appeal and the grounds for the substantive appeal. 26The appellant responded by seeking leave to amend the appeal by adding to ground 1 of the appeal the following sub-grounds: c)his Honour erred in declining to decide upon the clear conflict between the Respondent and the two other eyewitnesses in the evidence as to the actual physical events surrounding the spraying of the young person; and/or d)his Honour erred in not accepting the evidence of the two other eyewitnesses over that of the Respondent as to the actual physical events surrounding the spraying of the young person; and/or e)his Honour erred in his view of the evidence surrounding the conversation that the Respondent had with Constable Hawkins after he was directed not to speak to her; and/or (f)his Honour erred in holding that the Applicant's removal decision was mainly founded upon the conviction of the Respondent by the learned Magistrate. 27The Full Bench granted the appellant leave to amend his application, but in doing so invited the respondent to raise any matter he considered caused him prejudice as a consequence of the leave being granted and the Full Bench would consider that issue if and when it arose.

Leave to appeal 28In stating why leave should be granted, the appellant's application was in the following terms: 1)There is a real question of importance in the public interest as to whether the Commission has the power under s 89(1) of the Industrial Relations Act 1996 to order an employer to reinstate an employee who is totally unfit for any work able to be provided by the employer. This question has been the subject of obiter comment at appellate level in recent judgments by the Court of Appeal (see Director General, NSW Dept of Health v Industrial Relations Commission of NSW [2010] NSWCA 47) and in the Commission (see Commissioner of Police v Smith [2010] NSWIRComm 162), but has not been the central issue in any judgment to date and it remains undecided at appellate level. 2)There is a real question of importance in the public interest as to whether the Commission has the power under s 89(3) of the Industrial Relations Act 1996 to order an employer to pay to an employee who at the time of dismissal was an injured worker receiving payments pursuant to the Workers Compensation Act 1987 additional monies over and above his statutory entitlements under that legislation. 29Unlike the grounds of appeal, the appellant did not seek leave to amend that part of the application that requires reasons why leave to appeal should be granted. On the face of it, the application seeks leave to appeal only in respect of the question of whether the Commission has jurisdiction under s 89(1) of the IR Act to order reinstatement of a worker who is permanently unfit for work. The other question raised in respect of leave was the Commission's power to order an employer to pay to an employee who at the time of dismissal was an injured worker receiving payments pursuant to the Workers Compensation Act 1987 additional monies over and above his statutory entitlements under that legislation. 30There was no reason provided as to why leave should be granted in relation to the primary judge's decision regarding harshness. The prescribed form (form 28) requires an appellant to "set out with particularity the reasons, in numbered paragraphs, including reasons why it is claimed that the matter is of such importance that, in the public interest, leave should be granted". This follows from s 188 of the IR Act, which provides: 188 Appeals to Full Bench by leave only (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) 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. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister. 31If an appellant does not seek leave in respect of a particular matter, the respondent and the Commission would usually be entitled to proceed on the basis that the appellant did not consider leave would be granted in respect of the particular matter for the reason that it was not a matter of such importance that, in the public interest, leave would be granted. If leave is not sought in relation to a particular matter it follows leave would not be granted and, therefore, the matter could not be the subject of a hearing on the merits of the appeal. 32If leave is not sought in relation to a matter yet there are indications in the other parts of the application that the appellant seeks to have the matter litigated, which is the case here, it creates unwelcome and needless confusion and risks the Commission striking out the matter or causes proceedings to be adjourned. 33The appellant's application for leave to appeal and appeal is significantly deficient. However, the Commission is not a court of strict pleading and it indicated that subject to any matter the respondent considered was prejudicial because of the lack of notice regarding the matter, it was satisfied the respondent was seized of the issues the appellant sought to have litigated in the appeal. Accordingly, despite the deficiencies in the application, the Commission has treated the application as seeking leave in respect of those matters identified in the grounds of the amended notice of appeal. 34In respect of whether leave should be granted, the appellant submitted that the appeal raised significant issues of principle going to the powers that the Commission has to deal with unfair dismissal applications seeking reinstatement brought by police officers in particular and workers in general who are in fact unfit to return to work. 35Further, it was submitted the judgment under appeal was attended by significant doubt as to its correctness upon the issue of whether it was in fact harsh by the appellant to dismiss the respondent. 36In opposing leave, the respondent submitted the case turned on its own facts, the appellant seeks on appeal to argue matters that were not put to the respondent and/or were not part of the appellant's case at first instance and merely challenges matters going to weight. 37We propose to grant leave. The appeal does raise a significant issue of principle in respect of the Commission's powers to reinstate an employee under s 89(1) of the IR Act in circumstances where the employee is unfit to perform work. We also consider that on the question of the primary judge's decision regarding harshness the parties would benefit by an appellate review of that decision.

Consideration 38We deal first with the appellant's challenge to the primary judge's treatment of the first ground relied upon by the Commissioner to remove the respondent from the Police Force, namely, that the respondent used unreasonable force upon Mr Orey Travalos on 10 June 2006. 39The matters that appear to have influenced the primary judge regarding this ground in arriving at the conclusion that the dismissal was harsh, are as follows: (a)the respondent was a senior constable with 11 years' service without him coming under adverse notice in that time; (b)on 10 June 2006, the police fears that there was a potential for further anti-social behaviour at the Lemon Tree Passage community event were well founded and a potentially volatile situation developed; (c)Mr Travalos was "pretty drunk"; he was kicking the inside of the police van with such force that it caused the van to rock back and forward; (d)there was a conflict in the evidence of SC Hawkins and SC Scott on the one hand and the respondent on the other, as to whether Mr Travalos had ceased thrashing around inside the van shortly before the cage door of the van was opened by the respondent. Hawkins, Scott and the respondent each may have been mistaken regarding their recollection of events bearing in mind the circumstances of the night. However, the difference in the evidence was not decisive to the outcome of the Commission's review; (e)there was a further conflict in the evidence as to whether Mr Travalos kicked out at the respondent when he opended the door of the police van. The evidence of both SC Hawkins and SC Scott was that they did not see Mr Travalos kick out. However, both witnesses conceded that they lost sight of Mr Travalos for a moment when the door of the van was opened and the applicant stepped towards the van. Nevertheless, in light of the ultimate conclusion that his Honour reached, it was unnecessary to resolve this conflict in the evidence; (f)in his reasons for removing the respondent, the Police Commissioner did not refer to the respondent's evidence that he took the action he did in an attempt to prevent Mr Travalos from injuring himself, inciting others and causing mob conduct on the night; (g)the Police Commissioner took the decision to remove the respondent without the benefit of the findings of Frearson DCJ upholding the appeal by the respondent against his conviction for assault; (h)the decision of the Magistrate was of no assistance; (i)the Commission was confronted with a situation where the key basis of the decision of the respondent had dissolved and the reasons for dismissal therefore rested on a much narrower foundation than the decision that was made which is the subject of these proceedings; (j)the reasons of Frearson DCJ in upholding the appeal and quashing the Magistrate's decision were persuasive and must be given appropriate weight; (i)Mr Pimm, a former police weapons trainer, gave evidence that the circumstances of a handcuffed person in a police van did not preclude the use of OC spray. Mr Pimm's evidence was that it was open to the respondent to form the view that it was appropriate to use OC spray. This was not challenged other than to the effect that SC Hawkins was not necessarily wrong when she formed her view that the use of OC spray was inappropriate. The appellant did not call any evidence that contradicted the evidence of Mr Pimm that if the respondent formed the view, due to the circumstances, to use the OC spray, then it was an appropriate use of the spray. (j)Senior Constable Scott, in cross-examination, conceded that if there was a belief held by an officer that a detained person in a van was liable to injure him or herself, then the use of OC spray was appropriate. She volunteered that she had used OC spray in a similar circumstance, although in a difference type of police van. SC Hawkins also conceded that the use of OC spray was not inappropriate because a prisoner was confined in a police truck or van; (k)the respondent relied on his state of mind on 10 June 2006 in believing that the use of OC spray was reasonable. The respondent was suffering from PTSD at the time and subsequently. Dr Wade, a psychiatrist, had stated: the events of 10th June 2006 - his reactions and over-reactions - are highly consistent with suffering Post Traumatic Stress Disorder, in particular, where depressive symptoms would also add to blurred judgment. ... He can be exceedingly anxious, his mind is over-active with negatives, seeing danger, being very scared of what might happen next and also in this state increasingly going into a dissociative state - ... and later: The PTSD has worn him down and as is often the case, the PTSD is often a dance of fear and aggression, much like the two chase one another's tails; (l)the medical evidence was that the respondent had a pre-established injury. The respondent's cessation of work in 2007 was unrelated to the events on 10 June 2006. The respondent's condition may well have played some part in how he perceived the intensity or severity of what was occurring on that particular night. The respondent's evidence was that he was fearful and overwhelmed by the events of that evening and came to a conscious decision to use the OC spray. It was never put to the respondent that his understanding of the circumstances at the particular time he used the spray was wrong, nor was it said that his intention was wrong, or that he had any other motive in respect of Mr Travalos, who was unknown to him. The respondent's description of his mental process and his thoughts on the evening of 10 June 2006 were never challenged; (m)the appellant referred the respondent to HealthQuest on 11 March 2008 to determine the respondent's medical condition and fitness for duty. An inference may, therefore, be drawn that the appellant, prior to issuing the Notice pursuant to s 181D(1), had given consideration to the fact that the respondent was, as a result of injuries sustained during the course of his employment, possibly no longer able to fulfil his duties of office. However, the appellant proceeded to determine the complaint pursuant to s 181D prior to a decision being made by HealthQuest which found the respondent unfit; (n)the appellant did not seek to challenge the medical evidence relied upon by the respondent before the primary judge. However, the appellant submitted there was competing medical evidence as to whether the respondent suffered from PTSD (a reference to the opinion of Dr Kaplan of HealthQuest who diagnosed the respondent with an adjustment disorder). This was appealed and the Workers Compensation Commission found the respondent was suffering from PTSD; (o)in respect of the appellant's submission to the primary judge that, on the one hand, the respondent contended that he acted completely reasonably on 10 June 2006 and on the other hand, the respondent contended that his judgment at the time was impaired, his Honour accepted the respondent's submission that he had always contended that he acted reasonably, but pointed to his medical condition at the time as a mitigating factor. 40The appellant contended the primary judge erred in his approach to the unreasonable force ground by having regard to respondent's capacity to form rational judgments because of his then disability of post-traumatic stress. This approach, it was submitted, was subjective when the test of whether the respondent used unreasonable force upon Mr Travalos required an objective approach. 41The task of the primary judge was not to determine, either objectively or subjectively, whether the respondent used unreasonable force for the purpose of determining whether he was guilty of contravening s 230 of the Law Enforcement (Powers and Responsibilities) Act 2002. His Honour's task was to determine whether the removal of the respondent was harsh, unreasonable or unjust in accordance with the relevant provisions of Pt 9 of the Police Act. 42However, even if the primary judge had determined the force used by the respondent, viewed objectively, was unreasonable it would not automatically follow that the removal was justified. The primary judge was required, amongst other matters he considered relevant, to have regard to the interests of Mr Ross and to the public interest: s 181F of the Police Act. Staff J acknowledged this was his task: see [62], [83] and [84] of the first decision. 43In referring to the decision of Frearson DCJ in the District Court, the primary judge said he found the findings "persuasive" and should be given appropriate weight. Frearson DCJ was unable to conclude to the required standard (that is, beyond reasonable doubt) that Mr Ross' actions were unreasonable and, accordingly, his actions could not amount to assault. 44The findings of Frearson DCJ included the following: the situation at the community event on 10 June 2006 was disturbing and chaotic; there was drunken misbehaviour inside the police truck and outside the police truck and a degree of chaos and a degree of irresponsibility by people who should know better; Ross may well have believed that his actions would help control the people outside the truck; 45Staff J reached similar conclusions to Frearson DCJ and was obviously strengthened in that by the decision of Frearson DCJ. Were these similar conclusions open to his Honour? First, there is no doubt on the evidence that the situation on the evening of 10 June 2006 was "disturbing and chaotic". As the primary judge observed in his first decision, on 10 June 2006, a community carnival took place at Lemon Tree Passage. In the previous year, attendees at the carnival had become violent. In 2006, Operation Viking was set up by the Lower Hunter Local Area Command in an attempt to prevent a recurrence of violence from the previous year. The respondent was on duty at the carnival with approximately 10 other police officers although it would appear that not all of these officers were initially present. 46Senior Constable Scott acknowledged in her evidence before the primary judge that there were a large number of juveniles, the police were outnumbered, bottles were being thrown at police and the situation was "volatile". 47Mr Travalos was a "large" youth. Senior Constable Collier was present on the night. He said Mr Travalos was with a group of people and he started yelling at police, "swearing... using offensive language in the middle of Lemon Tree Passage Road." Senior Constable Scott was involved in the arrest of Mr Travalos and together with two other officers - because it took three officers to hold him down - managed to handcuff the arrestee. When asked in cross-examination whether she considered Mr Travalos "was a person who was or had the potential for some violence", SC Scott replied, "Absolutely". In her statement to DSC White, SC Scott said that in the process of arresting him Mr Travalos "was yelling and kicking out and carrying on like a fool". SC Hawkins agreed in cross-examination that Mr Travalos "had been particularly violent on that night [10 June 2006]..." 48Two residents, Mr and Mrs McGee, made statements about what they saw in connection with the arrest of Mr Travalos. Mrs McGee said: My view of the street was partially blocked because of where the vehicles were parked. I could see peoples' heads and I could hear a male person swearing and yelling abuse. I saw some police trying to get a male into the back of the Police truck. This male was struggling and he was yelling out and swearing. After the Police put the male into the back of the truck I saw what I would describe as a violent attack come from inside the van. The male who had been placed inside was screaming out and was swearing unreservedly. I was shocked by the noise he was making inside the ruck. The behaviour of the male was appalling. He was extremely aggressive and violent. The male was in the back of the van for a number of minutes and his attack continued. The male was continually swearing. After a while the rocking stopped and the male settled down. I am unaware as to why he did settle. 49Mr McGee said: I saw some police struggling with a particular male. They placed him into the back of a Police truck and shut the door. After being locked in the truck the make began to kick into the inside of the truck. It sounded like he was demolishing it from the inside. I am of the opinion that the male must have had his back against one wall of the truck and was kicking into the other side with his feet. The truck was rocking so much that I said to Helen: "He'll have very sore feet in the morning." The male continued to kick in the truck and yell abuse and swear for a short period of time. There were a large number of people around the Police vehicles and ambulance. A short time after the male settled down the Police truck drove away.... 50SC Hawkins agreed in cross-examination that Mr Travalos caused the van to rock and "There was a lot of kicking and banging going on". SC Hawkins also agreed that at some point Mr Travalos "was probably banging on the van with his head". SC Scott also agreed in her ERISP interview that Mr Travalos "could have been" banging his head in the van. 51Mr Travalos, during his oral evidence, agreed that he had been jumping side to side and up and down in the back of the police vehicle. He said he was kicking at the door of the vehicle for approximately 15 minutes. The respondent said in his evidence that Mr Travalos was yelling to be let out of the van and using offensive language which "made the crowd's intensity increase and they began shouting and I could sense from my years of training and experience the situation was escalating." 52Her Honour Magistrate Truscott described the scene thus: Whilst in the rear of the truck he [Travalos] kicked and banged the inside walls and floor of the truck and shouted and swore. The crowd of predominantly intoxicated youth around the truck were unruly, evidenced by throwing bottles, yelling, swearing, verbally abusing each other and abusing the police. There were fears that the crowd, in reaction to what the accused was doing in the truck would attempt to free him or be hostile towards the police. They began to approach the truck causing police to move them back across the road. 53A critical issue before the Magistrate was whether Mr Travalos was sitting quietly or still kicking the vehicle when the door of the van was opened immediately prior to Mr Ross spraying Mr Travalos. Her Honour considered that if Mr Travalos was sitting quietly there could have been no reasonable excuse for deploying the OC spray to prevent a violent confrontation in the truck. Her Honour considered Scott and Hawkins to be "certain and clear witnesses" and favoured their testimony over other police officers present. The evidence of SC Scott and SC Hawkins was that at the time Mr Ross opened the van door, Mr Travalos was behaving. SC Hawkins' evidence was that Mr Travalos "had calmed down" and he was "sitting staring straight ahead". 54Magistrate Truscott discounted the value of SC Collier's evidence, which was that: Once inside, the young person began yelling "Get me out of here, fucking come on". This appeared to be directed at the crowd that had formed and was growing. He then began to kick the inside of the cage repeatedly. At this time, I walked past the kerbside door (of the truck) toward my vehicle and retrieved my notebook when I heard Snr Const Ross say "Open the door". At this time the young person was still kicking the inside of the cage. I looked back and saw the door being opened by Snr Const Ross and I kept walking to my car. As I retrieved my notebook I heard members of the crowd saying things like "That's pepper spray, they sprayed him". 55Senior Constable Collier was cross-examined about this evidence and agreed, "it was possible the kicking could have stopped before the accused approached and opened the door." Her Honour found that SC Collier "did not know whether the kicking stopped before or after the spray was used." 56Magistrate Truscott also considered whether Mr Ross used the OC spray to help the police control the crowd or whether he used it because he was concerned that Mr Travalos might hurt himself "from all the kicking and jumping around". Her Honour dismissed the first proposition on the basis that Mr Ross was not charged with guarding, securing or protecting Mr Travalos and there was no evidence SC Scott and SC Hawkins were failing in their guarding duties. Her Honour dismissed the second proposition on the basis that Mr Ross had the OC spray in his hand before opening the van door, which was inconsistent with any concern that Mr Travalos was hurting himself and in any event "looking through the window [of the van] would have allayed any concerns about Travalos's welfare...." 57In the proceedings before the primary judge SC Hawkins disagreed with the proposition put in cross examination that up until the time Mr Ross had opened the van door Mr Travalos had been making "violent noises... in the rear of the truck". In her ERISP interview SC Hawkins said that Mr Travalos had calmed down by the time the van door was opened; that Mr Travalos only "thrashed about" for a couple of minutes from the time he was placed in the van. SC Scott said in her ERISP interview that Mr Travalos "wasn't making the same racket as what he was a few minutes earlier than [the door being opened]... the noise and racket had stopped". In her evidence before the primary judge, SC Scott confirmed what she said in her ERISP interview, namely, the noise in the van stopped a few minutes prior to the van door being opened. However, in cross-examination, SC Scott conceded that whilst Mr Travalos had stopped "banging" he may have been "yelling out" at the time Mr Ross asked for the van door to be opened. 58The respondent's evidence before the primary judge was that he pursued a course of action in an attempt to prevent Mr Travalos from injuring himself, inciting others and causing mob conduct on the night. The respondent also claimed that when he opened the door of the police van, Mr Travalos kicked out at him. However, the respondent did not claim he used the OC spray in self defence. The respondent said he already had it in his mind that he was going to spray Mr Travalos before the van door was opened. 59The evidence about whether, at the time Mr Ross requested the van door to be opened, Mr Travalos had calmed down is not clear-cut. SC Scott conceded he may have still been yelling out. SC Collier ultimately could not be sure and despite his initial view that Mr Travalos was still kicking inside the van when the door was opened he ultimately conceded that it was possible the kicking could have stopped prior to the door being opened. Apart from Mr Travalos himself, who by his own admission was "pretty drunk" at the time, only Senior Constable Hawkins remained certain Mr Travalos had completely calmed down prior to the door being opened. 60It is clear, however, that the scene was "chaotic" and the van in which Mr Travalos was being held had become the centre of the large mob's attention. As Magistrate Truscott observed, there were fears that the crowd, in reaction to what Mr Travalos was doing in the truck, would attempt to free him or be hostile towards the police. There is every possibility that the distraction of the mob, the concern about bottles being thrown and dealing with Mr Travalos' violent conduct on the evening all blurred perceptions of time and events. 61It is not without reservation that we refrain from adopting the Magistrate's evidentiary findings. Her Honour considered all of the evidence carefully and in considerable detail. But the circumstances of the events of 10 June 2006 do not present a black and white picture where one is able to easily reach conclusions about what occurred and why. Moreover, the legal task her Honour undertook was quite different to the task undertaken by Staff J. 62It seems to us it cannot be discounted that Mr Travalos was continuing to misbehave in the police van at or very close to the time Mr Ross asked for the door to be opened and that Mr Ross' motive in using the OC spray was out of concern that Mr Travalos' conduct could incite the mob to further violence. The Magistrate's reason for refusing to accept Mr Ross was motivated to use OC spray on Mr Travalos to assist in the control of the crowd was that Mr Ross was not charged with guarding, securing or protecting Mr Travalos and there was no evidence SC Scott and SC Hawkins were failing in their guarding duties. However, Mr Ross was a police officer assigned to assist in ensuring violence did not break out and there was no evidence that it was impermissible for him to use his initiative to quell or avert violence if he perceived the threat of violence from the mob that had gathered near the police van. 63Mr Ross said he was also concerned Mr Travalos was banging his head insider the van and he was concerned about him injuring himself. As we earlier noted, SC Hawkins agreed that at some point Mr Travalos "was probably banging on the van with his head". SC Scott also agreed that Mr Travalos "could have been" banging his head in the van. However, in the circumstances, we are inclined to believe it was unlikely that concern Mr Travalos might injure himself was a reason for Mr Ross' resort to OC spray. As the Magistrate observed, it was a simple matter of Mr Ross looking through the window of the van to allay any concern about injury. 64The primary judge found in relation to the conflicting evidence about whether Mr Travalos had calmed down prior to the door being opened that: I formed the view that each of the witnesses was endeavouring to accurately recall the events of 10 June 2006. In my view, it was quite possible that either Ms Hawkins, Senior Constable Scott, or the applicant, were mistaken in respect of this aspect of the incident, bearing in mind the circumstances of the night. As I will discuss shortly, the difference in the evidence is not decisive to the outcome of this review. 65The primary judge did not make a specific finding - objectively or subjectively based - as to whether the use of the OC spray was unreasonable. His Honour appears to have taken the view that he could not be certain what occurred on 10 June 2006, a view strengthened by the similar findings of Frearson DCJ. In addition, his Honour seems to have taken the view that the key basis upon which the Commissioner removed the respondent was the conviction for assault. With that conviction being overturned by Frearson DCJ the key basis had dissolved. 66The Commissioner certainly did have regard to the conviction for assault in deciding to remove the respondent. Whether it could be regarded as the key basis for the Commissioner's decision is doubtful. The Commissioner did canvass what he considered to be the relevant material from the Commissioner's Confidence Supporting Documentation and quite independently of the Magistrate's decision, concluded the use of OC spray was "inappropriate and unreasonable", that the disobedience of a reasonable direction was an even more serious ground justifying removal and that the respondent's conduct breached various obligations that bound the respondent as a police officer. The overturning of the conviction may have removed one plank upon which the Commissioner relied for removing Mr Ross, but that did not render the Commissioner's reasons entirely invalid. 67Thus, it is apparent the primary judge's reasoning was that the conviction for assault had been overturned and his Honour was left to determine whether, nevertheless, there remained proper grounds to remove the respondent. His Honour then considered the events of the evening of 10 June 2006. That led him to similar conclusions to those of Frearson DCJ including that Mr Ross may have believed that his actions would help control the people outside the truck. These conclusions were open to him on the evidence. The primary judge indicated (at [83] of the first decision) that he had given significant weight to the findings of Frearson DCJ "that the actions of the [respondent] were not unreasonable." 68We note Frearson DCJ's finding was that his Honour was "unable to conclude to the required standard that the actions were unreasonable." The standard of proof to be applied by Frearson DCJ was that of beyond reasonable doubt. So, it may be concluded that his Honour was not satisfied beyond reasonable doubt that the actions of Mr Ross were unreasonable. Staff J was mistaken in stating that Frearson DCJ found the actions of Mr Ross were not unreasonable. Did this mistaken view taint his Honour's decision to the extent it was wrong? We do not think so. 69 Staff J did not make a finding based on his mistaken understanding of what Freason DCJ found. That is to say, Staff J did not make a finding based on his understanding of what Frearson DCJ found that on the balance of probabilities (the standard of proof his Honour was required to apply) Mr Ross's actions were not unreasonable. His Honour did not adopt the findings of Freason DCJ, he only gave them "significant weight" and found them "persuasive". Unlike Frearson DCJ and Magistrate Truscott, his Honour found it unnecessary to resolve key conflicts in the evidence for the purpose of deciding whether the respondent's actions were unreasonable. This was because his Honour's task was to determine whether the removal of the respondent was harsh, unreasonable or unjust, not whether the use of force was unreasonable or amounted to assault. 70Having concluded the reliance by the Commissioner on an assault conviction was not available and having found it was unnecessary to decide whether the actions of the respondent were unreasonable (such finding having been made against the background of his Honour placing significant weight on the findings of Frearson DCJ), Staff J proceeded to consider relevant additional matters regarding the unreasonable force ground. These included that: the respondent had a pre-existing illness that heightened his sense of anxiety and fearfulness; the appellant failed, in removing the respondent, to have regard to the respondent's claim he pursued a course of action in an attempt to prevent Mr Travalos from injuring himself, inciting others and causing mob conduct on the night; and that it was open on the evidence for the respondent to form the view that it was appropriate to use OC spray. 71As to the pre-existing illness, the respondent had been diagnosed with PTSD in 2004. However, the appellant submitted that there was no evidence the respondent was suffering from the effects of PTSD on the evening of 10 June 2006. What is more, the appellant submitted, the respondent could not maintain in his defence that his use of OC spray on Mr Travalos was appropriate and at the same time claim his judgment was impaired because he was suffering from PTSD. 72The primary judge referred to medical evidence that the respondent's "actions and over-reactions" on 10 June 2006 were "highly consistent" with suffering PTSD, added to blurred judgment and that: He can be exceedingly anxious, his mind is over-active with negatives, seeing danger, being very scared of what might happen next and also in this state increasingly going into a dissociative state - ... 73Staff J referred to the fact that in his reasons for removing the respondent the Commissioner stated he could see no additional mitigation or reasons for the respondent's conduct that would provide him with any basis not to lose confidence in his suitability to remain as a police officer. Staff J disagreed and relevantly found the respondent's PTSD: [M]ay well have played some part in how he perceived the intensity or severity of what was occurring on that particular night. The applicant's evidence was that he was fearful and overwhelmed by the events of that evening and came to a conscious decision to use the OC spray. It was never put to the applicant that his understanding of the circumstances at the particular time he used the spray was wrong, nor was it said that his intention was wrong, or that he had any other motive in respect of Mr Travalos, who was unknown to him. The applicant's description of his mental process and his thoughts on the evening of 10 June 2006 were never challenged. 74The primary judge, in our opinion, was entitled to take into account the fact that the Commissioner did not consider the respondent's mental condition to be a mitigating factor in circumstances where the medical evidence was that the respondent's PTSD may have affected his judgment on 10 June 2006. As for the appellant's submission claiming an inconsistency in the respondent's position, an inconsistency does not necessarily arise. That the respondent may have believed he acted appropriately does not deny the fact he was suffering from PTSD, which as the primary judge found, may have "played some part in how he perceived the intensity or severity of what was occurring on that particular night." It was a reasonable conclusion on his Honour's part that this was a mitigating factor not taken into account by the Commissioner. 75The primary judge found that the Commissioner, in his reasons for removing the respondent, made no reference to the respondent's claim he pursued a course of action in an attempt to prevent Mr Travalos from injuring himself, inciting others and causing mob conduct on the night in question. We have discounted that the respondent was motivated out of a concern that Mr Travalos might injure himself. As to the incitement of others and causing mob conduct, on the evidence we have discussed above the possibility that the respondent acted to prevent further mob violence could not be discounted and, accordingly, Staff J was correct in identifying this as a relevant consideration for the Commissioner, but which was overlooked. 76The primary judge referred to the Commissioner's reliance upon a purported breach of the NSW Police Handbook and Pocket Guide in respect of the use of OC spray. His Honour referred to the evidence of Mr Pimm to the effect that the circumstances of a handcuffed person in a police van does not preclude the use of OC spray and that it was open to the respondent to form the view that it was appropriate to use OC spray. His Honour noted this was not challenged other than to the effect that SC Hawkins was not necessarily wrong when she formed her view that the use of OC spray was inappropriate. Staff J also noted the appellant did not call any evidence that contradicted the evidence of Mr Pimm that if the respondent formed the view, due to the circumstances, to use the OC spray, then it was an appropriate use of the spray. In relation to this last matter, of course two of the appellant's witnesses, SC Hawkins and SC Scott, did give evidence that the use of OC spray was inappropriate. 77The primary judge also sought to take some comfort in the concession of SC Scott that if there was a belief held by an officer, that a detained person in a van was liable to injure him or herself, then the use of OC spray was appropriate. His Honour referred to SC Hawkins' concession that the use of OC spray was not inappropriate because a prisoner was confined in a police truck or van. These concessions, made in cross-examination, were of a very general nature and their probative value is relatively minor in the face of the adamant evidence of these two officers that it was completely inappropriate in the circumstances to use OC spray on Mr Travalos. 78Nevertheless, if it cannot be discounted that Mr Ross was concerned about the prospect of further mob violence and acted to avert it by using OC spray on Mr Travalos because he was inciting the mob, the Police Guide on the use of OC spray would not have prohibited its use by the respondent in those circumstances. Further, Mr Pimm gave evidence, accepted by his Honour, that the circumstances of a handcuffed person in a police van did not preclude the use of OC spray and that it was open to the respondent to form the view that it was appropriate to use OC spray. 79In relation to the second removal ground, disobedience of a reasonable direction, the primary judge noted that the respondent had, at all times, conceded that he erred in approaching and speaking to SC Hawkins after being directed not to contact any officers involved in the incident and that he was remorseful. His Honour found there was no oral discussion of the actual event on the evening of 10 June 2006 in such a way as to impugn either SC Hawkins or the respondent. The primary judge concluded that the respondent did not have an improper motive in speaking to SC Hawkins. 80The appellant submitted that contrary to a clear direction from Chief Inspector McPhee that he was not to speak to the other officers involved about "the matter" the respondent, both on that evening and thereafter on one further occasion, deliberately breached that direction and sought to engage SC Hawkins in private conversation about the matter (and the second approach occurred, in spite of her resistance to engaging in such discussions with him on his first approach). The appellant submitted this was a clear and deliberate breach of the direction from the respondent's superior as the internal investigation found, and his attempts to sanitise and downplay this aspect of his behaviour should have been rejected by his Honour as, at the very least, disingenuous. 81It was submitted the only reasonable inference to be drawn, and the inference that should have been drawn, was that the respondent immediately and repeatedly disobeyed the direction of his superior with a view to maximising the prospect that SC Hawkins would actively or at least passively assist him (by making no complaint) with his quest to avoid responsibility for behaving improperly towards Mr Travalos. 82We do have reservations about his Honour's conclusion that the respondent did not have an improper motive in speaking to SC Hawkins. Nonetheless, the primary judge had the advantage of seeing SC Hawkins and Mr Ross as they were examined and cross examined in the witness box. To overturn the judge on this matter we would have to find he was plainly wrong (Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 at 378). Whilst there was undoubtedly a breach of the direction by the Chief Inspector and that was a serious matter, "there was no oral discussion of the actual event in such a way as to impugn either SC Hawkins or the [respondent]." We do not consider we are in a position to find otherwise nor are we in a position to come to a different conclusion to his Honour that the Commissioner's second removal ground was not sufficient to justify the respondent's removal from the Police Force. 83As he was required to do pursuant to s 181F of the Police Act, the primary judge had regard to the public interest and to the interests of Mr Ross. In relation to the public interest, his Honour was of the view that sustaining the order removing the respondent may have resulted in a significant injustice. In relation to the respondent's interests, Staff J acknowledged his good service record, his remorse in respect of his failure to comply with the directive to speak with SC Hawkins, the impact of removal on the respondent's superannuation entitlements and the forfeiture of any rights he may have had pursuant to the Crown Employees (Police Officers Death and Disability) Award 2005 given his disability. 84The primary judge concluded that the removal of the respondent from the Police Force was harsh: at [92] of the first decision. Having regard to all of the matters his Honour took into consideration in determining the removal was harsh, we find there was no error in his Honour reaching that conclusion.

Jurisdiction to order reinstatement 85It was common ground that the respondent was permanently unfit to perform work within the Police Force. In that circumstance, the appellant contended the primary judge had no jurisdiction to make an order reinstating (or re-employing) the respondent. It was submitted that even if the Full Bench were to uphold the finding at first instance that the removal of the respondent was harsh, the only remedy open to the Commission to apply was a compensation order under s 89(5) of the IR Act. 86For this proposition the respondent relied primarily on the decision of the High Court in Blackadder, the decision of the NSW Court of Appeal in Casari, the decision of the Commission in Court Session in Retail Traders Association of NSW v Shop, Distributive and Allied Employees Association of NSW (1990) 36 IR 38 ("RTA case') and the decision of the Full Bench of this Commission in Smith. We shall address those decisions shortly, but first it is necessary to identify the source of power to reinstate the respondent. 87Part 9 of the Police Act deals with the management of conduct within the Police Force. Section 181D allows the Police Commissioner to remove a police officer 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. The section, which is found in Div 1B, is in the following terms: 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) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister. (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) (Repealed) (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, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission. (7A) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action. (7B) Nothing in Division 1C limits or otherwise affects the Commissioner's power to vary or revoke an order in force 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. (9) The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the police officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action. 88Section 181E (found in Div 1C) enables a police officer who has been removed under s 181D to apply to the Industrial Relations Commission for a review of the order removing him or her on the ground that the removal is harsh, unreasonable or unjust: 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. (3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1). 89Section 181F sets out the procedure that must be followed by the Commission in conducting a review: 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (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)). 90Section 181G of the Police Act applies certain provisions of the IR Act to an application for review in the same way those provisions apply to an unfair dismissal application under that Act, subject to the terms of Division 1C and certain modifications: 181G Application of Industrial Relations Act 1996 to reviews (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: (a) section 83 (Application of Part) is to be read as if subsection (3) were omitted, (b) section 85 (Time for making applications) is to be read: (i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and (ii) as if subsection (3) were omitted, (c) section 86 (Conciliation of applications) is to be read as if it provided that a judicial member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review, (d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted, (e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made, (f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless: (i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or (ii) the Commission gives leave, (2) The Commission may grant leave as referred to in subsection (1) (f) (ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances: (a) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information, (b) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently or vexatiously, (c) where the Commission is satisfied that the new evidence might materially have affected the Commissioner's decision. 91Section 89 of the IR Act is in the following terms: 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. (7) Threat of dismissal In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat. (8) An order under this section may be made on such terms and conditions as the Commission determines. 92The question arose in the course of the proceedings whether in ordering reinstatement of the respondent the primary judge was exercising a power under s 89(1) of the IR Act or under s 181G of the Police Act. We note that in his Honour's Statement of 6 October 2010 he referred to "the reinstatement, or re-employment of Mr Ross pursuant to the combined operation of s 181G of the Police Act 1990 and s 89 of the Industrial Relations Act 1996." 93The consensus of the parties was that the primary judge was exercising a power under s 89(1) of the IR Act in reinstating Mr Ross and not under s 181G. This would appear to be consistent with the plain words of s 181G(1) of the Police Act and we do not take a different view to that expressed by the parties. 94The appellant's argument regarding the absence of jurisdiction to make an order reinstating Mr Ross may be summarised as follows: (a)police officers are "statutory employees", but to a significant extent their "contracts" are properly characterised as contracts for "personal service"; (b)all contracts of personal service can and will be "frustrated" or rendered "impossible" to perform in circumstances where the employee is unable to perform the work contemplated by the contract, whether due to death or permanent disability or otherwise; (c)section 89 of the IR Act prevents the Commission from ordering reinstatement (or re-employment) save in circumstances where it would be "practicable" (or "not impracticable") for this to occur; (d)the authorities make it clear that the focus is on the practicability of re-establishing the "employment relationship" between the parties (being a relationship of personal service) in all the circumstances, paying due regard for the interests of the employer as well as of the employee; (e)as established in Blackadder an employer will not have complied with a "reinstatement order" by merely agreeing to "restore" or reinstate the employment contract between the parties without also permitting indeed requiring him/her to resume performing the duties that the employee was undertaking prior to termination (or, if those duties are no longer "available", to perform the duties of "another position" that the employer has available and is "suitable" for that employee to perform); (e)there is no distinction between a reinstatement order and a re-employment order in this regard - they both require the identification of suitable duties for the employee to perform and necessarily involve, as a core feature and pre-requisite, satisfaction that the employee is "ready, willing and able" to perform such duties, whether they be the duties of the worker's "former position" or those in "another position" that is available within the employer's organisation; (f)the reference to the "status quo ante" in Blackadder does not, and cannot, supplant the express words of s 89 of the IR Act, being words that require the Commission to be satisfied that it is practicable for the dismissed employee to "go back to work in his or her former position" or in "another position" available within the employer's organisation (in the event that the worker's "former position" is no longer available) given that the goal is the restoration of a personal service contract and relationship; (g)regardless of how "unfair" the dismissal may be found to be in a particular case s 89 of the IR Act only authorises and permits a "return to work" order being made in specified circumstances, namely where there is still suitable and available work to be performed and, inter alia, where the worker is physically and mentally able to go back to work (i.e. necessarily alive, not serving life or long term imprisonment and not, otherwise rendered permanently unfit for all available and suitable work, whether as a consequence of injury or illness, whether work related or otherwise); (h)as is established by the RTA case, and as more recently affirmed the Court of Appeal decision in Casari, the Commission's power to make a return to work order (i.e. whether by way of reinstatement or re-employment) cannot be used for a collateral or extraneous purpose i.e. to deliver the worker higher order of compensation than is otherwise available under s 89(5) of the IR Act or to facilitate the employee's pursuit of a financially valuable "medical discharge" or for the purpose of enabling access to greater annual leave, long service leave or superannuation entitlements. 95The respondent's submission regarding the absence of jurisdiction to make a reinstatement order may be summarised as follows: (a)where the Commission finds the removal of an officer or employee was harsh or unreasonable or unjust the primary remedy available is reinstatement or re-employment. For reinstatement not to be a primary remedy it must be found that the reinstatement is impracticable. It is for the appellant to establish that reinstatement was impracticable. The appellant called no relevant evidence to establish that the respondent could not be reinstated to his position in the employment of the appellant at the time of the order pursuant to s 181D on the 19 November 2008 or anytime thereafter; (b)at the time of the order the respondent was an employee, incapacitated for work as the result of a workplace injury. An order for reinstatement pursuant to s 89(1) requires reinstatement to the respondent's former position. Blackadder supports the respondent's contention that even though a person may be unfit to perform work, that did not preclude reinstatement to the person's former position; Blackadder stands for the proposition that reinstatement "requires restoration of the terms and conditions of the employment in the broader sense of those terms". Reinstatement to a former position requires the recreation of the circumstances of employment that preceded the termination. In other words, the circumstance of employment means the actual circumstance of the "employee", that is the respondent, that applied under the contract of employment and in accordance with the employer's statutory obligations immediately preceding the dismissal. 96In relation to the appellant's analysis of Blackadder and Casari, the respondent submitted: (a)Casari is to be distinguished. Casari concerned s 89(2) of the Industrial Relations Act, which is not the case in the present appeal. See also Commissioner of Police for New South Wales v Lawrance [2011] NSWCA 377; (b)the appellant's analysis of Blackadder ignore the facts in that case. Despite the reinstatement order the employer resumed paying Mr Blackadder but refused to provide him with work and required Mr Blackadder to undertake a medical examination prior to commencement of what had been his prior duties. When Mr Blackadder was allowed to return to work he was directed into work of a nature different than that he had done prior to his wrongful determination. The reliance by the appellant on references in the judgment such as "'reinstate' means to put back in place the substantive employment relationship including the provision and doing of real work" fails to acknowledge that the High Court was dealing with a refusal by the employer to provide the worker with the work he was doing prior to dismissal. Blackadder was not authority for the proposition that regardless of whether a worker was on workers compensation and unfit to perform work at the time of his dismissal, a reinstatement order required the worker to be provided with "real work"; (c)authorities show that a reinstatement can be made in the case of a worker injured prior to dismissal: see Anderson v Northern Co-Operative Meat Company Pty Limited [2004] NSWIRComm 300; (2004) 137 IR 404; Big W Discount Stores v Donato [1994] NSWIRComm 144; (d)if an order pursuant to s 181D is set aside after review pursuant to s 181F, the logical consequence is that the order is set aside from the date of its execution. The consequence is that the respondent is entitled to be reinstated to his former employment, a consequence of which would be that the respondent retains his statutory entitlement to be removed only upon medical retirement. 97Additionally, the respondent contended: (a)at all times prior to his dismissal Mr Ross held the statutory position of a police officer which attached to it common law powers, statutory powers as well as statutory requirements; (b)the Police Regulation 2008 made it clear it was prefaced on the proposition that the person remained a member of the Police Force until discharged by the Commissioner in accordance with the Act; (c)for instance, it was said in relation to r 125(1) that it applies to a police officer who is in receipt of weekly compensation payments under the Workers' Compensation Act 1987 in connection with the employment as a police officer and who continues to be employed in the NSW Police (respondent's emphasis). This regulation, it was submitted, directly acknowledged that police officers who were hurt on duty continued to be employed in the NSW Police Force until presumably dismissal or resignation. 98The respondent's case regarding his status immediately prior to removal was teased out in the oral submissions of senior counsel. Those submissions may be summarised as follows: (a)the public office of constable exists simultaneously with an employment relationship between the Police Force and the police officer: Police Service of New South Wales v Honeysett [2001] NSWCA 452; (2001) 115 IR 243 at [22] per Priestley JA; (b)section 12 of the Police Act provides for a number of ranks and grades of police officers, and one is that of a constable. Mr Ross was a senior constable in this case. Section 63 of the Police Act defines Mr Ross as a "non-executive police officer" and that certain rights and entitlements attached to that position; (c)the day before he was dismissed Mr Ross was still subject to the oath of office (s 13). He was bound to obey lawful commands of his superior officers (s 201). He could have been required to assist members of the public who were put in danger (s 6); he would have been obliged to come to their aid, subject to his capacity to do so. He was bound by the rules and regulations of the Police Force; (d)Mr Ross remained a member of the police force until s 72 of the Act had application. That is, if the position becomes vacant because the officer: (i) dies or (ii) completes a term of office and is not appointed for a further term, or (iii) is removed from office, or retires or is retired from office, under this or any other Act, or (iv) resigns his or her position in writing addressed to the Commissioner, or (v) abandons his or her employment in the NSW Police Force. Unless any of these events occur the officer remains in a position in the Police Force; (e)section 72A of the Police Act may be said to apply to Mr Ross in the sense that his unfitness for duty on medical grounds is permanent. In that circumstance the Commissioner may cause the officer to be retired. However, until that occurs Mr Ross remains in the Police Force in the position of a non-executive police officer; (f)prior to the decision to remove Mr Ross he had been assessed as partially incapacitated. That was his status immediately prior to his removal. It was only subsequent to his removal that Mr Ross was assessed as permanently unfit. On this basis it would undoubtedly have been the case that there was a position to which Mr Ross could have been reinstated. 99The appellant relied heavily on Blackadder and Casari for the proposition that unless reinstatement of a dismissed employee involved reinstatement to the employee's former position, which had to be construed as reinstatement to a position involving the performance of work, the Commission had no power to order reinstatement under s 89(1) of the IR Act. As Mr Ross was permanently unfit and, therefore, unable to perform work there was no power to order his reinstatement. 100Blackadder concerned an appeal from the Full Court of the Federal Court of Australia involving a question about the application of s 170CH(3) of the Workplace Relations Act 1996 (Cth). That provision was in the following terms: (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. 101Orders were made under s 170CH only if the termination of employment "was harsh, unjust or unreasonable". 102Commissioner Redmond, a member of the former Australian Industrial Relations Commission, had ordered:

1. The [employee] shall 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 within 21 days from the date of this decision.
2. The [employee] is to be reimbursed for all lost salary and entitlements from the date of termination to reinstatement less the salary the parties agree the [employee] received through alternative employment. 103Commissioner Redmond made certain findings that indicated his order was intended to reinstate the employee to do work that the employee ordinarily did before his employment was terminated. 104Subsequently, the employer wrote to the employee stating:
3. Effective on and from 20 April, 2000 you have been reinstated in the position of Boner in the employ of Ramsey Butchering Services Pty Ltd. ...
4. Until further notice you will not be required to report for work or otherwise perform work in order to be entitled to your wages and other remuneration.
5. You will be required to undergo a medical assessment by a Company nominated medical practitioner prior to resuming any physical work. Our reason for instituting this requirement is more fully explained below.
6. In terms of the payment of wages from 20 April, 2000 you will receive a payment representing back pay on the next usual pay day and will receive payment weekly thereafter. The payments made to you will be your weekly wage as a Boner in terms of ordinary pay plus the average of the tally paid to all other Boners in any given week. In addition, your superannuation will be paid as normal.
7. The position will continue until the results of the medical assessment is known and considered by the Company at which time you will be advised of the Company's position. Our reason for excusing you from physical work until further notice is that arising from the proceedings before the Commission, and the tendering of the Medical Certificate from Dr Bacon, doubts exist as to your physical capacity to perform the duties of a boner not only in relation to the duties associated with Hot Necking on the Slaughterhouse Floor but more importantly your ability to bone in the Boning Rooms given the Osteoarthritis in your right elbow. As you are aware, an absolute duty is imposed upon the Company as to your health, safety and welfare at work. Until such time as we are able to ascertain your physical condition to bone we do not wish to expose you to any risk. Prior to your recommencing duties we require you to attend for medical assessment by our nominated doctor. We will advise you by letter of the date and time of the appointment. This appointment will be scheduled during normal working hours. 105As McHugh J observed at [4], after sending this letter, the employer directed the employee to undergo a medical examination on 5 May 2000: But the employee refused to attend the examination on the ground that the Commission's order for reinstatement was not dependent upon fulfilling such a condition. The employee claimed that he was ready and able to resume the boning work that he had performed before termination of his employment. As from 11 June, the employer refused to pay the employee wages because he had failed to submit to the medical examination. 106The matter reached the Federal Court. The primary judge, Madgwick J, ordered, inter alia, that the employer reinstate the employee to the position in which he was employed prior to the termination of his employment, "namely a boner performing chilled boning work in that part of the respondent's premises known as the big boning room." 107The employer appealed to the Full Federal Court. There the employer challenged the reinstatement orders and submitted that an order for reinstatement simply revived the contract of employment an employee does not have a right or entitlement to do actual work under a contract of employment, an order cannot be made in exercise of a power to order reinstatement, conferring such a right on the employee and imposing a corresponding duty on the employer to provide it (at [67]). 108The Full Court upheld the employer's appeal (Tamberlin and Goldberg JJ, Moore J dissenting). The majority said at [77]-[78]: We consider the emphasis on appointing the employee to a 'position' demonstrates that it is the contractual position which is either to be restored in its earlier terms or in equivalent terms. By using the terminology of 'appointing' as opposed to 're-employing' for example, there is indicated a legislative intention to re-establish rights or equivalent rights which were destroyed by the wrongful termination. The language does not indicate a legislative intention to provide more than that to which the employee was entitled prior to the wrongful termination. In our opinion, where a person is reinstated by appointment to a position in which he or she was acting at the time of dismissal pursuant to s 170CH(3)(a), then that provision requires that the person should be restored to all the contractual entitlements which applied in respect of that position at the time of the wrongful dismissal so far as possible, but should not be given any additional entitlement which the person did not previously have under the relevant terms of the person's employment. 109Moore J, dissenting, said at [21] and [23]: Many of the cases concerning what an order for reinstatement comprehends, at least in the context of New South Wales industrial laws, were considered by the Industrial Commission of New South Wales in Court Session in Retail Traders Association (NSW) v Shop, Distributive and Allied Employees Association (NSW). In those authorities it is comparatively clear, to repeat some of the language used, that 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. ... In my opinion, the power to make an order under s 170CH(3)(a) or (b) extends to making an order requiring the employer to permit the employee to take up the position formerly occupied by the employee, or another position, including performing the duties of that position and receiving the benefits from doing so. 110The High Court, in four separate judgments, upheld the employee's appeal. At [14] McHugh J held: 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. The Full Court of the Federal Court erred in the present case by holding that "the emphasis on appointing the employee to a 'position' demonstrates that it is the contractual position which is either to be restored in its earlier terms or in equivalent terms." 111At [33]-[34] Kirby J stated: By the Act, and the order, reinstatement of the appellant was meant to be real and practical, not illusory and theoretical. In 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 grant the employer the unilateral 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. Its failure to do so produces statutory consequences to which, by his orders, Madgwick J sought to give effect. I agree with Callinan and Heydon JJ that Moore J in the Full Court of the Federal Court gave the correct analysis of what might happen in the future if the appellant were unable, or unwilling, to perform the work of his former position as a boner in the chilled boning room (or such other work as was later assigned to him) 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 (citations omitted). 112Hayne J stated at [42]-[44]: The central issue in this appeal is one of statutory construction. What is meant in s 170CH(3)(a) by "an order requiring the employer to reinstate the employee by ... reappointing the employee to the position in which the employee was employed immediately before the termination". In particular, what is meant in that provision by "position"? "Position", when used in s 170CH(3)(a), refers to the place in the employer's commercial structure which the employee occupied before termination. It refers not only to the pay and other benefits which an employee may earn in a position, but also to the work which the person filling that position does. It follows that an employer, ordered to reinstate an employee by reappointing the employee to the position in which the employee was employed immediately before the termination, not only must recommence paying or providing the financial or other benefits attached to the position, but also must put the employee back to the performance of those duties which the employee was fulfilling before termination. There are two principal reasons to reach this conclusion. First, s 170CH(3) provides for two different kinds of order for reinstatement. It distinguishes between, on the one hand, orders requiring an employer to reinstate an employee by reappointing the employee to the position in which the employee was employed immediately before termination, and, on the other, reinstatement by 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". This distinction between reinstatement by reappointing to the former position and reinstatement by appointing to another position reveals that the concept of "position" is insufficiently described by reference only to the pay or other benefits which an employee is to receive from the employer. Yet in essence the respondent's contention was that the appellant was reinstated to his former position because he was paid the same pay and benefits, and that it did not matter whether he was given any work to do. Secondly, both the drawing of that distinction and the Act's reference to "position" rather than "employment" or "contract of employment" reveal that more is required by an order of the kind now in question than recreation of the contractual nexus that existed between the parties before the termination of employment or recreation of that nexus to the extent of giving the employee the benefits available under the terms and conditions which previously existed. Rather, 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. In cases where that last element cannot be achieved (as, for example, where the work formerly done is no longer required) the form of reinstatement for which s 170CH(3)(a) provides would not be appropriate and the question would become whether the alternative form of reinstatement (by appointing to another position) should be made. 113In the joint judgment of Callinan and Heydon JJ it was stated at [75]-[78]: 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. They are intended to apply to a very wide range of workplaces and certainly not to a particular officer or officers. It was therefore within the power of the Commission to make such an order as would contemplate or require that the employer provide a reappointed or reinstated worker with actual work to do. In our opinion it is also at least implicit in the reasons for the order of the Commission at first instance that the appellant would be provided with actual work for him to do. This appears from the passages which dealt with the appellant's fitness to perform the work, and the conclusion that the appellant could do that which he had been doing before his employment was terminated. We do not take the Commissioner at first instance to have deliberated upon these matters only for the purpose of ascertaining whether the termination was in any way justified. He was also doing so for the purpose of considering whether reinstatement was appropriate, and whether upon its occurrence the appellant would be likely to be able to do the work which he had formerly been doing. Before making an order the Commission has to be satisfied of the matters referred to in s 170CH(2). Those matters included the effects (in the future) on the viability on the employer's business if an order (for reappointment) be made (s 170CH(2)(a)), the remuneration that the employee would have received if his employment had not been terminated (s 170CH(2)(c)), and any other matters that the Commission might consider relevant (s 170CH(2)(e)). With respect to the first of these, the Commission made the relevant finding that the operational requirements of the respondent's business would not be affected by the restoration of the appellant to his previous position. In any event 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. It is no answer, as the respondent submits, that the appellant may be unwilling to do hot boning work, or that he may lack the physical and other capacities to do it. It is true that sub-cl 37.20 of the AWA provides that employees shall work as directed, but sub-cl 35.9 makes it clear that the directions may relate to such duties as are within an employee's skill, competence and training only. Commissioner Redmond has held, and it has not so far been controverted, that the appellant has not been trained, and is not fit, to do hot boning work. The Act empowers the Commission to reappoint an employee to the position in which he was employed immediately before his termination, or to another position, and this it did, by reappointing him to work in the chilled boning room. It is not for this Court to anticipate, by making an order in advance, what may follow from that. As Moore J in dissent in the Full Court said: That is not to say, however, that the employer would be precluded, thereafter, from lawfully altering the position of the employee by requiring the employee to perform other duties, standing down the employee or even dismissing the employee. An employer can. However, if these steps were taken capriciously or unreasonably it may be that they could be viewed as steps designed to nullify the effect of the reinstatement order. The order is intended to have the effect earlier described and, to that extent but only to that extent, overrides any contractual or other rights the employer may have. 114In Blackadder, immediately prior to his dismissal, the employee was employed by the employer and working as a boner in the boning room. The employer was ordered by Redmond C to reinstate the employee "to the position in which he was employed prior to the termination of his employment...." The employer did not comply and instead, whilst continuing to pay the employee a wage, refused to provide the employee with work until the employee was declared medically fit to do it. 115The case turned on the meaning of "to reinstate" and the meaning of "position". McHugh J held "to reinstate" meant, "to put back in place"; to restore the employment situation as it existed immediately before the termination, and that "[s]o 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." 116Kirby J held that purpose of a reinstatement order was "to ensure that the employee in question is placed in the status quo ante." Hayne J held that "reinstatement by reappointing to a former position requires the recreation of the circumstances of employment that preceded the termination." 117Callinan and Heydon JJ stated that, "'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." 118Blackadder is authority for the proposition that the purpose of a reinstatement order is, in the words of Kirby J "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. That purpose is not entirely consistent with the words of s 89(1), namely, that 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." But the inconsistency lies only in the fact that provided the employee is reinstated to his or her former position different terms might apply to the position provided they are no less favourable to the applicant. 119In our opinion, however, 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 being made. Such an interpretation would be at odds with what Hayne J said, namely, "reinstatement by reappointing to a former position requires the recreation of the circumstances of employment that preceded the termination." The only reason work became a focal point in Blackadder was not because the members of the High Court considered reinstatement to a former position must necessarily in all cases mean a requirement to perform work, but rather because the circumstances of employment that preceded termination included the fact that the employee was performing a certain type of work. 120Conceivably an employee at the time of dismissal may have suffered a work related injury and was undergoing a program of rehabilitation in order that, at some time, he or she might return to work. That the employee was not performing work at the time of dismissal is not a basis upon which to conclude no power exists to order reinstatement. A reinstatement order would recreate "the circumstances of employment that preceded the termination" and enable the employee to continue with rehabilitation in order that he or she might resume work; it would restore the status quo ante. 121The decision of the Court of Appeal in Casari (followed in Smith) does not alter our opinion about what Blackadder stands for. At [21]-[22] of Casari, Spigelman CJ stated: [21] Finally, the condition imposed by the Full Bench's order to the effect that "the appellant will not return to work and he shall resign" is also on its face inconsistent with the concept of an order to "re-employ the applicant" within the meaning of s 89(2). The idea of 're-employment' necessarily requires a return to work. There is no power to order 're-employment' which involves no return to work at all. (Cf Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 esp at [13]-[15], [33]-[34], [43]-[44], [65], [69].) [22] This is, in my opinion, both jurisdictional error and error of law on the face of the record (even if confined to the order itself) for each of three alternative reasons. First, the power which the Commission purported to exercise did not authorise an order that Mr Casari re-employed "in his former position". Secondly, the Full Bench failed to make findings which were an essential precondition to the exercise of the statutory power. Thirdly, 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". 122Nowhere in the judgments in Blackadder was it said or inferred that reinstatement in all cases must involve a "return to work" in the sense 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. As we have indicated "work" was significant in Blackadder because that is what the employee was doing in his former position at the time of dismissal. 123Moreover, 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 (see [80]). 124Casari, on the other hand, was concerned with "employment", or more specifically re-employment, under s 89(2) of the IR Act, which provides: (2) 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. 125Casari was an appeal from a decision of the Full Bench of the Industrial Relations Commission. The Full Bench had determined that the dismissal of an employee was unfair, but for the reasons expressed in the decision (Casari v Sydney South West Area Health Service [2009] NSWIRComm 103); (2009) 185 IR 217 found that reinstatement was impracticable. The Full Bench ordered that:

4. The appellant is re-employed in his former position effective from the date of this decision on the following terms and conditions: (i) the appellant will not return to work and he shall resign in writing effective from the day immediately following the date of this decision; (ii) for the period from 30 July 2007 to the day immediately following the date of this decision the respondent shall pay to the appellant within 14 days the wages he would have received if he had not been summarily dismissed, together with any benefits, such as annual leave, long service leave and superannuation, that would have accrued to the appellant from 30 July 2007 if he had not been summarily dismissed. 126One of the reasons the Full Bench was found to have erred was that a condition requiring a person to resign and not return to work was outside the permissible sphere of any order capable of answering the description of an order "to re-employ". 127Unlike the present case, Casari was not concerned with restoring the status quo ante under s 89(1) of the IR Act. The issue was whether an order could be made under s 89(2) to re-employ a person, but at the same time order that he not return to work. Blackadder, as we have said, 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 being made. Nor is it authority for the proposition that if an employee is unable to perform work because of some disability or injury at the time a re-employment order is made that fact precludes an order for re-employment being made. 128Casari determined that an order for 're-employment' is inconsistent with an order that the employee not return to work and is, therefore, impermissible. That is an entirely different matter to whether a reinstatement order has been complied with that restores the status quo ante. 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. 129The appellant placed reliance on the RTA case. That was an appeal from a decision of Hungerford J. It concerned whether the Commission had the power to make an order or award directing an employer to reinstate a person in his former employment in circumstances where the person had died after the date of dismissal but before the Commission had the opportunity of considering a reinstatement application. Hungerford J determined there was power. 130The decision of Hungerford J was overturned on appeal. The leading judgment was delivered by Cahill V-P with whom Glynn and Maidment JJ agreed. Cahill V-P stated at 46: In my opinion the effect of the claim so made, and the award made in pursuance thereof, was to impose on the company an obligation, a breach of which would be punishable at law, which was impossible of compliance. The purported award was thus beyond the jurisdiction of the Commission to make and, in effect, a nullity. My conclusion in this regard is based on my view of what is encompassed within the term "reinstatement" in an industrial sense. I consider that the 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. 131It is to be noted that the power with which the Full Bench was concerned in the RTA case was the power under the Industrial Arbitration Act 1940 to make an order or award in relation to "the right to dismiss or refuse to employ or reinstate in employment any particular person..." (emphasis added). There being no "particular person" existing to reinstate or "put back" in "employment" the Full Bench held there was no power to reinstate the person who had died. 132In the present case there is an existing person who could be "put back" in his "former position". At the time Mr Ross was removed, he occupied a position, namely the public office of constable and that of employee. He would be bound by the oath he took as a police officer and would be required to "comply strictly" with the Police Act and the Police Regulation and obey all lawful orders and to comply with the Police Code of Conduct and Ethics. Regulation 9(1)(b) of the Police Regulation, for instance, provides that "A police officer who is off-duty (whether rostered off-duty, on annual leave, suspended or otherwise absent)...(b) will be held responsible for any misconduct by the officer while off-duty..." 133It is apparent that the reinstatement of Mr Ross to his former position would not be to re-establish the employment relationship in some "notional or fictional way". Rather, real consequences would flow. 134There 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. That doctrine, however, will not necessarily automatically terminate the employment contract because of an incapacitating illness or condition (Finch v Sayers [1976] 2 NSWLR 540; Cachia v State Authorities Superannuation Board (1993) 47 IR 254; Hilton Hotels of Australia Limited v Pasovska [2003] NSWIRComm 17; (2003) 122 IR 428) and we do not consider it did so in this case. 135Prior to his removal Mr Ross was in employment and had been declared partially incapacitated. Since his removal he had been declared permanently incapacitated. He has sought an order that he be reinstated to his former position of senior constable. The Commission has undoubted power to make that order. Upon his reinstatement, given his state of permanent incapacity, one would expect he would be treated in accordance with the relevant rules and processes that apply to his situation. But it is not for the Commission to anticipate, by making a reinstatement order, what might follow from that: Blackadder at [78]. 136We find Staff J did not err in making the reinstatement order.

Orders 137The Full Bench makes the following orders: (1)Leave to appeal is granted. (2)The appeal is dismissed. (3)Orders (1) to (4) of his Honour's orders in Ross v Commissioner of NSW Police (No 2) [2011] NSWIRComm 122 are confirmed. (4)The stay order of 28 September 2011 is dissolved.

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