1 We have each had the opportunity of considering the draft decision prepared by Kavanagh J in this matter. We agree with her Honour's orders and reasons with respect to the application for leave to appeal for the reasons given by her Honour. We agree that those grounds of appeal, which challenge the findings at first instance that the removal of Bradley Smith was harsh, should be rejected for the reasons given by her Honour, although we will add some short supplementary remarks in that respect. We also agree with her Honour's orders quashing the conditions attaching to Order 2 of the orders made at first instance. Unfortunately, we are unable to agree with her Honour's conclusion that the appeal should only be allowed in part (as to the conditions imposed) and the cross-appeal allowed, thereby effectively confirming the orders for reinstatement at first instance. In our view, the appeal should be allowed, the orders at first instance quashed, the cross-appeal disallowed and the matter remitted for determination in accordance with the decision of the Full Bench for reasons which are also shortly set out below.
2 The conduct engaged in by Mr Smith which brought him to notice under the provisions of Div 1B of Pt 9 of the Police Act 1990 was such that only compelling mitigating circumstances may have justified a finding of harshness, particularly when public interest considerations were taken into account. However, the justification for the conduct in this case was, to borrow the analysis undertaken by Peterson J in Wells v Commissioner of Police [2000] NSWIRComm 157; (2000) 100 IR 106 at [36], of a high level, because the evidence in the proceedings established that Mr Smith's behaviour was an aberration deriving from a recognised and diagnosed mental condition. It is in the public interest that mental conditions arising from employment of the kind experienced by Mr Smith receive the same recognition, acceptance and compassion as physical illnesses, injuries and infirmities. Further, the trial judge was correct in her finding that there was a procedural error in the Commissioner not having proper regard to the explanation provided by Mr Smith for his conduct based upon this psychological illness.
3 We do not consider it is necessary to resolve the competing contentions as to the proper application of Johnston v Commissioner of Police [2007] NSWIRComm 293; (2007) 169 IR 301 at [43] for two reasons. First, whilst the Full Bench in that matter accepted that the recovery of an applicant from "depressive illness" may be a matter relevant to whether a removal was harsh, unreasonable or unjust, the Full Bench does not purport to dictate just how that factor may operate, if relevant, in a particular case. Secondly, in this matter, we are satisfied that it was open for the trial judge, on the evidence at the trial, to find that there was a low risk of Mr Smith re-offending (in terms of his misconduct) as a consequence of the treatment of his mental illness. We agree with Kavanagh J's conclusions, in that respect, although wider questions arise with respect to the issue of impracticability under s 89 of the Police Act.
4 As to the relief granted by Backman J, we note that her decision was delivered after the decision of the NSW Court of Appeal in Director-General, NSW Department of Health v Industrial Relations Commission of NSW [2010] NSWCA 47 ('Department of Health'). The judgment in Department of Health overturned orders made by a Full Bench of this Commission in Casari v Sydney South West Area Health Service [2009] NSWIRComm 103; (2009) 185 IR 217 upon which Backman J predicated her reinstatement orders (or at least the conditions attaching to them).
5 Those reinstatement orders cannot stand in the light of the decision in Department of Health. We do not consider that the conditions attaching to the order to reinstate can be effectively severed, so as to preserve the reinstatement orders.
6 The orders were predicated upon a basis now unsustainable in the light of the judgment in Department of Health. Her Honour's determination was based upon earlier overturned authorities of this Commission. Further, the orders reflected the case advanced on behalf of Mr Smith to the effect that he would not return to active duty in the NSW Police Force in any capacity, other than to be discharged on medical grounds.
7 This conclusion must result in the appeal being upheld as there is a clear error of law. The same consideration requires that the orders be quashed and the cross-appeal be dismissed. Mr Smith cannot, in our view, be permitted to sustain the decision at first instance by the cross-appeal, because that appeal seeks to challenge orders made by the trial judge that were made consistently with the very contentions advanced at trial on behalf of Mr Smith.
8 That gives rise to the question as to whether or not this Full Bench should determine for itself the appropriate remedy in this matter, having regard to the fact that the findings of harshness have been sustained on appeal.
9 We consider that question should be answered in the negative. Her Honour's order to reinstate was given on an entirely false legal premise. It is likely that the same foundation resulted in her Honour failing to make particular findings as to impracticability required by s 89 of the Industrial Relations Act 1996 ('the IR Act'). Nor was there any alternative case pressed for re-employment by Mr Smith, no doubt again influenced by the then state of the law.
10 In our view, it is appropriate that Mr Smith be permitted to formulate applications for relief based upon the current state of the law and upon up to date medical evidence relevant to any application pressed by him. Appeal proceedings, such as these, do not represent a suitable vehicle to undertake those tasks, even though, as a matter of principle, appellate benches in this jurisdiction endeavour to give an ultimate resolution to appeals which concern unfair dismissal applications or removal matters under the Police Act.
11 There is one final matter that requires mention before passing to the orders which we would propose to make.
12 In the final section of her decision, Kavanagh J discussed the implications of the judgment of the Chief Justice in Department of Health at [21] and the judgment of the High Court of Australia in Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 ('Blackadder'). Her Honour's consideration was directed to the legal implications of those judgments having regard to the medical circumstances of Mr Smith and the prospects of him returning to service in the NSW Police Force. This is understandable as her Honour proposed, by her orders, to reinstate the applicant. Given the orders we propose to make, we shall pass upon these matters only in a preliminary way.
13 Her Honour correctly points out that the relevant observations of the Chief Justice in Department of Health concerned re-employment. Nonetheless, that passage from his Honour's judgment may also have implications for the grant of an order to reinstate pursuant to s 89(1).
14 His Honour stated:
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]).
15 The lynchpin of that analysis is that the applicant would not return to work. So expressed, that is a matter which may have equal applicability to an order to reinstate contemplated under s 89(1).
16 In this matter the question is whether an order to reinstate may be made in the light of Department of Health in circumstances in which Mr Smith may not be able to, wholly or partly, carry out the duties of his former position or may or may not be able to perform duties of 'another position' under an order for re-employment.
17 In order to address that question it is necessary to revisit some of the passages from Blackadder referred to by the Chief Justice in Department of Health.
18 Blackadder involved a question as to whether a reinstatement order which had been made by the Australian Industrial Relations Commission required the employer, the subject of the order, to do more than provide the subject employee with his contractual or other legal rights, by restoring him to the work of his former position. That question was answered in the affirmative in various judgments of the court which have been referred to in Kavanagh J's decision.
19 McHugh J resolved the issue raised in those proceedings as follows (at [14]):
To construe the power "to reinstate" as confined to restoring contractual or other legal rights fails to give full effect to the term "reinstate". To reinstate means to put back in place. In this context, it means that the employment situation, as it existed immediately before the termination, must be restored. It requires restoration of the terms and conditions of the employment in the broadest sense of those terms. It empowers the Commission to do more than restore the contract of employment. So far as practicable, the employee is to be given back his "job" at the same place and with the same duties, remuneration and working conditions as existed before the termination. 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".
20 In terms of the questions raised in this matter, it is instructive to consider the aforementioned passage from his Honour's judgment in the light of the particular issues arising in Blackadder. In the opening paragraph of his Honour's judgment (at [1]), he stated:
The point of principle involved in this appeal is whether an employer reinstates its employee "to the position in which the employee was employed immediately before the termination" within the meaning of s 170 CH (3) of the Workplace Relations Act 1996 (Cth) when it: gives the employee the title of his former position; pays the employee the amount earned for ordinary time by persons in that position together with the average of the tally or bonus payments paid to employees in that position; but refuses to provide the employee with any duties until he undergoes a medical examination and satisfies the employer that he has the physical capacity to carry out his pre-termination duties.
21 The ultimate resolution of that question by his Honour (in an application of the aforementioned statements of law and principle) was as follows (at [16]):
The Order of the Commissioner in the present case must be read against the circumstances of the pre-termination employment and the finding that the employee was not fit to do hot neck boning. When that is done, the direction to reinstate the employee "to the position in which he was employed prior to the termination of his employment" can only mean that the employee had to be given back the job that he had before termination, performing the same duties on the same terms and conditions. He was to be reinstated to do the general boning work and, in particular, the hindquarter boning work that he did before the termination. His reinstatement was not subject to any condition that he was fit to perform his pre-termination duties. An employer cannot evade the operation of a reinstatement order by making it subject to the employer's satisfaction concerning the fitness of the employee or some other condition formulated by the employer.
22 Having regard to these passages from the judgment of McHugh J in Blackadder, it cannot be suggested it lies beyond the reach of orders under s 89(1) of the IR Act to reinstate an employee to a former position, if that position is one that the employee occupied because of a medical limitation.
23 To this observation may be added that an order to reinstate will bring with it all of the incidents and benefits of employment to which the employee was previously entitled at the time of his dismissal including those associated with being hurt on duty. In Blackadder, Hayne J stated (at [43]):
"Position", when used in s 170 CH (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.
24 It is beside the point that an employee's medical circumstances might change so as to alter his capacity to perform his former position. We refer, in this respect, to the judgment of Kirby J (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.
25 The aforementioned analysis does not necessarily deal with a circumstance in which an employee may be unable to, wholly or partly, carry out any of the duties of his former position at the time of the making of a reinstatement order. Further, similar but more extensive issues arise in relation to re-employment.
26 Whether or not the Chief Justice had these considerations in mind in the aforementioned passage from Department of Health is unclear, as it must be remembered that his Honour was there dealing with a case where reinstatement was ordered effectively on the basis that no return to work would occur at all (i.e. the employee would resign).
27 We do not consider that it is appropriate in this decision to resolve this question. It is not at all clear what may be precise medical circumstances applying to the resolution of this matter or, for that matter, what conclusions the trial judge may reach as to the question of impracticability or other discretionary questions. These are matters which should not be addressed on a theoretical basis.
28 In those circumstances, we propose to make the following orders: