This is an appeal pursuant to s 188 of the Industrial Relations Act 1996 (NSW) ("IR Act") by Zehra Davidson ("appellant") against the decision of Commissioner Murphy in Davidson v Commissioner of Police (No. 2) [2022] NSWIRComm 1000 ("Decision") to dismiss her application for relief pursuant to s 84 of the IR Act.
[2]
Background
The circumstances leading to the appellant's dismissal were not materially in dispute before Commissioner Murphy. It is convenient to reproduce extracts from the Decision to set out that background:
"6. The applicant was medically retired with her last day of service being 2 September 2021.
…
7 The applicant commenced employment with the NSW Police Force in 2011 as a Customer Service Officer/Account Manager. In 2014, the applicant was placed on temporary contracts in the position of Senior Account Manager.
8 The applicant suffered a number of work-related injuries which she described in her witness statement …
9. The WorkCover Certificates of Capacity which the applicant referred to in … her witness statement stated that she 'has capacity for some type of employment' for '5 hours/day 3 day/week', with certain other restrictions."
The appellant's case, so far as it is relevant to the grounds of appeal, was summarised in the Decision as follows:
"10 Shortly stated, it was the applicant's case that she should be reinstated to her former position but on a part-time basis consistent with her medical restrictions, five hours per day, three days per week. It was put on her behalf that the respondent's failure to employ the applicant on this basis constituted a breach of the Workplace Injury Management and Workers Compensation Act 1998 (WIMWC Act) , in particular s 49 of that act, as well as a breach of the Anti-Discrimination Act 1977 (AD Act), in particular ss 49D(2)(c) of that act.
…
13. … [T]he Application was supported by a witness statement by Rebekah Hattch, a full-time General Administrative Support Officer at Nepean Police Area Command. Ms Hattch gave evidence that she had been asked to accept part-time employment to manage her medical condition.
14 The applicant also relied upon a witness statement by Kathryn Meyer, Change Manager, Mobility Support, Digital Technology and Innovation (DTI). Ms Meyer had worked with the applicant in the Client Support Team for over ten years. She gave evidence about the applicant's capacity as an employee. Ms Meyer also expressed her opinion that an employee in the position of the applicant could work effectively on a part-time basis and gave some examples of other employees who were permitted to work on a part-time basis."
The respondent's case, again so far as it is relevant to the grounds of appeal, can be extracted from the Decision as follows:
"17 The respondent relied upon an affidavit sworn by David Driver, Superintendent of Police who held the position of Commander, Workforce Safety Command within the Human Resources Command of the NSW Police Force. In his affidavit, Superintendent Driver explained his role as delegated decision maker in relation to the medical retirement of employees pursuant to s 94B of the Police Act. …
…
18 Annexure DD-2 to Superintendent Driver's affidavit is an extensive file on the applicant titled 'Medical Retirement Review' which contained a number of medical reports which confirmed that the applicant was only capable of performing her role for five hours per day, three days per week and that she had 'reached maximum medical improvement for her injury'.
19 The respondent also relied upon an affidavit of Emmanuel Rivera, Manager Field Support, Client Services and Engagement, DTI, which contained the following:
…
12. When I took over managing Ms Davidson's case in around the end of November 2020, I had a conversation with the then Commander of DTI, Superintendent Martin Hayston …
…
13. From my conversation with Superintendent Hayston, I was under the impression that the part-time arrangements that Ms Davidson was working could not be sustained permanently.
14. In my capacity as Manager Field Support, Client Services and Engagement, while Ms Davidson did not have a direct reporting line to me, I could see and had knowledge of the way the Client Services team worked. In my view, it would not be sustainable to have Ms Davidson perform the role of Client Services Officer on a part-time basis because I do not believe that the Commands within her portfolio would receive the support that was needed on a part-time basis.
15. In my view, a job-share arrangement would also not be appropriate for a number of reasons including:
a) Ms Davidson's hours of work each week did not amount to a full day's work on any day. This would mean that on the days that Ms Davidson was working, Commands within her portfolio would not have the support for a full day shift;
b) The Command could not employ someone to perform 2 hours a day for 3 days per week to cover the hours Ms Davidson could not perform;
c) If another employee was engaged on the same days as Ms Davidson this would [adversely] affect the Command's budget through two people being paid for the same job;
d) It would be difficult to advertise for a two day per week employee to cover the days that Ms Davidson did not work;
e) A jobsharing arrangement would mean that the two employees would need to have at least two hand overs a week, depending on how the shifts were allocated;
Statement of Zehra Davidson
16. I have read the statement of Ms Davidson dated 14 September 2021.
17. In relation to paragraph 9 of Ms Davidson's statement, to the best of my knowledge, Ms Davidson never made any request directly to me, for a flexible working arrangement or applied for any positions within the NSWPF that might have been advertised on a part-time basis."
The Decision quoted in its entirety the appellant's written outline of submissions, together with the concluding nine paragraphs of the appellant's written submission in reply. The latter of which were described in the Decision as "… [responding] to certain aspects of the case for the respondent …". The nine paragraphs were headed, in the appellant's submissions in reply, "Failure to provide permanent suitable duties by reasonable adjustment".
The Decision extracted in two separate parts, large parts of the respondent's outline of submissions. The first of these extracted submissions are in substance set out at [4] above.
Commissioner Murphy explicitly adopted the following of the respondent's submissions as his reasons for decision:
"4. Harsh, Unreasonable or Unjust
4.1 To be entitled to any remedy, the Applicant bears the onus of establishing that the dismissal was harsh, unreasonable or unjust.
4.2 The Respondent submits that the medical retirement of the Applicant was not:
(a) unjust because the Applicant was unfit or incapable of discharging the duties of her position. She was afforded procedural fairness at all times.
(b) unreasonable because the Applicant had been unable to perform the full functions of her substantive position since August 2018. The Applicant's medical retirement was consistent with the s 94B of the Police Act and the Respondent's procedures and policies.
(c) harsh because the Applicant's incapacity was of a permanent nature. Further, in circumstances where a medical retirement cannot be regarded as punishment, consideration of whether the dismissal was 'harsh' is not appropriate.
4.3 In determining whether a dismissal is harsh, unreasonable or unjust, the Commission may consider the matters set out in section 88 of the IR Act, which include:
(a) whether a reason for the dismissal was given to the applicant;
(b) if any reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for the behaviour or to justify the reinstatement;
(c) whether a warning of unsatisfactory performance was given before the dismissal;
(d) the nature of the duties of the applicant immediately before the dismissal; and
(e) whether or not the applicant requested reinstatement or re-employment with the employer; and
(f) such other matters as the Commission considers relevant.
4.4 In light of all the factors the termination of the Applicant's employment was not harsh, unreasonable or unjust. We deal these factors below:
Notice of the reason for dismissal
4.5 The Applicant was notified of the reasons for her dismissal in the letter of 20 July 2021 advising the Applicant that she was being referred for consideration of medical retirement, and the letter of 19 August 2021 advising the Applicant that she was being medically retired pursuant to s 94B of the Police Act.
Nature of reason for dismissal and whether the reason had basis in fact
4.6 As addressed above, the Applicant was dismissed pursuant to section 94B of the Police Act.
4.7 There appears to be no dispute that the requirements of s94B of the Police Act were satisfied at the time the Delegate made the decision.
Opportunities to make out a defence
4.8 The Applicant was given an opportunity to provide any further or relevant information as to why s94C of the Police Act was not applicable to her prior to the Delegate making a decision as to whether to medically retire her.
4.9 The Applicant did not provide any further information.
Whether a warning of unsatisfactory performance was given before the dismissal
4.10 The Applicant's dismissal was not related to unsatisfactory performance. The Commission need not consider this factor.
Other relevant matters
4.11 The Commission is empowered, in determining the Applicant's claim, to consider any other relevant matters. The Applicant's submissions suggest that the Commission should consider the application of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) and the Anti-Discrimination Act 1977 (NSW) (AD Act). The Respondent submits that a consideration of these factors does not lead to a conclusion that the Applicant's dismissal was harsh, unjust, or unreasonable. We address the application of those statutes in detail below.
4.12 ln must be noted that the power of the Respondent to medically retire the Applicant is derived from s94B of the Police Act as extracted above. There is no requirement in that statutory provision for the Respondent to consider, where a person is found to be suffering from a permanent incapacity or unfitness and cannot discharge the duties of the person's position, whether they are capable of performing a different position.
4.13 The Respondent understand [sic] that the Applicant remains in receipt of workers compensation payments and this is a factor to which the Commission may have regard. Additionally, the ongoing benefits associated with the Applicant's workers compensation claims mean that the workers compensation insurer can look for alternative employment for the Applicant in line with her capacity and restrictions. These are factors the Commission may consider against the proposition that the Applicant's dismissal was harsh, unreasonable, or unjust.
4.14 The process in leading to the dismissal decision complied with the Respondent's policies and procedures.
5. Workplace Injury Management Act
5.1 The Applicant submits that the Respondent has breached s 49 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) by 'failing to provide ongoing suitable duties in the form of part time work': AS [4].
5.2 S 105(1) of the WIM Act provides:
Subject to this Act, the [Personal Injury] Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.
5.3 The Respondent, firstly denies breaching s 49 of the WIM Act, and secondly, submits that would necessarily require an impermissible trespass by this Commission into the exclusive jurisdiction of the Personal Injury Commission.
5.4 This Commission does not have jurisdiction to determine or examine whether the Respondent has breached s 49 of the WIM Act.
6. Anti-Discrimination Act
6.1 The Commission is required, pursuant to s 169 of the IR Act to take into account the principles contained in the Anti-Discrimination Act 1977 (NSW) (AD Act).
6.2 In Stephen York v NSW Department of Education and Communities [2015] NSWIRComm 37 at [71], the Full Bench considered the application of s 169:
Section 169 has been held to impose a mandatory obligation to take into account the principles in the Anti-Discrimination Act but not to dictate any particular outcome or result: New South Wales Lotteries Corporation v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2003] NSWIRComm 143 at [8]. Upon that provision, the principles of the Anti-Discrimination Act are to be treated as a fundamental consideration in the decision-making process: Re Nursing Homes, & Nurses' (State) Award and Others Awards [2001] NSWIRComm 298 ('Nursing Homes and Nurses' Award'). It is the 'principles' of the Anti-Discrimination Act that are to be taken into account under s 169(1). Given that Act does not contain any provisions which are in terms described as its principles, nor is the word 'principles' a term commonly used in law to refer to the provisions of a statute or any particular part of a statute, the use of the word in s 169(1) seems directed at picking up the foundational concepts of the Anti-Discrimination Act, that is both the express provisions of the Act and the broader conceptual framework: Nursing Homes and Nurses' Award.
6.3 At AS [9], the Applicant submits that her medical discharge constitutes a dismissal for the purposes of section 49D(2)(c) of the AD Act. The Respondent accepts that this is so.
6.4 S 49D(4) of the AD Act relevantly provide a complete defence to unlawful discrimination pursuant to s 49D(2)(c):
(4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person [on] the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability-
(a) would be unable to carry out the inherent requirements of the particular employment, or
(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.
6.5 The Respondent submits that this defence is made out.
6.6 The inherent requirements of the Applicant's position are set out in the affidavit of Emmanuel Rivera. The inherent requirements include (relevantly for these purposes but not exhaustively):
(a) that the position be performed on a full-time basis;
(b) driving between Commands;
(c) keying and typing.
6.7 There is no dispute between the parties that the Applicant cannot perform the position on a full-time basis and that the Applicant is restricted in terms of driving and keying and typing.
6.8 The Applicant submits that she is able to perform her duties on a part-time basis and that in 'refusing to allow [the Applicant] to work part-time when it has allowed nondisabled employees to work part time, the [Respondent] has discriminated against [the Applicant] on the grounds of her disability': AS [15].
6.9 There are a number of points to be made in respect of that submission.
6.10 Firstly, it appears that the Applicant's submission is that allowing the Applicant to perform her duties on a part time basis is a 'service or facility' that the Respondent could reasonably have provided.
6.11 S 49D(4)(b) does not require an employer to provide an employee with alternative or light duties. Further, it does not require the employer to modify the inherent requirements of the position in order to maintain an employee's employment.
6.12 Employing the Applicant on a part time basis would require the creation of a new position within the Respondent's organisation, or the employment of another person to perform the duties not performed by the Applicant.
6.13 The provision of an alternative position for the Applicant to perform when she could not meet the inherent requirements of the position of Customer Service Officer or making modifications to the inherent requirements of the position of Customer Service Officer so that the Applicant could remain in employment is not a service of facility contemplated by s 49D(4)(b) of the AD Act. It follows that the Respondent was not required, pursuant to that act, to modify or alter the Applicant's employment in this way.
6.14 ln the alternative, if it is determined that the requirement to perform the position on a full time basis is not an inherent requirement (which for the avoidance of doubt, is not conceded by the Respondent), to allow the Applicant to perform the position permanently on a part-time basis would constitute an unjustifiable hardship on the Respondent for the reasons set out in paragraphs [13] to [15] of the affidavit of Emmanuel Rivera. What constitutes an 'unjustifiable hardship' is set out in s 49C of the AD Act.
6.15 To this end, the Respondent's policies relied on by the Applicant do [not] assist as they create no obligation on the Respondent to permanently offer part time employment.
6.16 Secondly, comparative evidence of the circumstances of other employees who may have been permitted to work or offered part time arrangements is not useful nor determinative of the question of whether s 49D(4) is satisfied. The evidence sought to be relied upon by the Applicant in this respect is irrelevant to the proceedings presently before the Commission.
6.17 Based on the evidence before the Commission, no breach of the AD Act by the Respondent can be made out. Therefore, unlawful discrimination against the Applicant is not a factor to be considered in whether the Applicant has been unfairly dismissed."
The Decision then sets out further reasoning of Commissioner Murphy, in which the issues raised on appeal are found. The further reasoning is as follows:
"26 In this matter I have determined to dismiss the Application for the reasons set out at paragraphs 4.1-6.17 of the respondent's outline of submissions with which I agree (at [22] above). It follows that I reject the case that has been put on behalf of the applicant, both in chief and in reply.
27 It is a matter for the respondent, not the PSA or this Commission, to determine whether it is 'reasonably practicable' for the work which was previously undertaken by the applicant on a full-time basis to be performed on a part-time basis for five hours per day, three days per week, ongoing. It is a matter for the respondent to determine whether the applicant's medical restrictions prevented her from carrying out the 'inherent requirements' of her previous role. The Commission would only interfere in this aspect the respondent's managerial prerogative to conduct her business as she sees fit in a case of clearly demonstrated unfairness to an employee or employees. No such unfairness has been demonstrated in this case.
28 Such intervention by the Commission, were it to occur, could only be based on the Commission's assessment of matters over which it has jurisdiction such as, for example, victimisation (s 210 of the IR Act), not on a determination by the Commission, as has been put on behalf of the applicant in this case, that the respondent has breached s 49 of the WIMWC Act. I repeat what I said in Colefax v Secretary, Department of Education [2018] NSWIRComm 1033:
29 I agree with the submission of the respondent to the effect that this Commission has no jurisdiction to deal with an alleged contravention of, or failure to comply with, such a determination (see section 105 of the Workplace Injury Management and Workers Compensation Act). Any finding by this Commission that the respondent acted unfairly in medically retiring the applicant on 29 March 2017, in part, because it failed to comply with the determination made by the WCC in August 2012, would necessarily require an impermissible trespass by this Commission into the exclusive jurisdiction of the WCC.
29 I note that, pursuant to s 105 of the WIMWC Act, the Personal Injury Commission of New South Wales established by the Personal Injury Commission Act 2020 has 'exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act', which includes alleged breaches of s 49 of the WIMWC Act. It would be an odd outcome if, on the facts of this case, this Commission determined that the respondent had breached s 49 and the Personal Injury Commission, on those same facts in proceedings before it involving the same parties, determined that there had been no breach.
30 Similarly, whist s 169 of the IR Act requires that the Commission, in the exercise of its functions, take into account the principles contained in the AD Act, this does not extend to clothing the Commission with jurisdiction to determine, in a matter such as this Application, that an employer, such as the respondent in this case, has unlawfully discriminated against an employee, such as the applicant in this case, in a manner proscribed by s 49D of the AD Act. There is an elaborate apparatus established under the AD Act which provides the mechanism for employees to pursue complaints of unlawful discrimination by employers.
31 I accept, for the reasons set in Mr Rivera's affidavit, that it is not practicable for the role that had been performed by the applicant to be carried out as a part-time role on an ongoing basis (at [19] above). I accept that this is the case, despite the fact that the applicant had been working part-time for a number of years as part of a return to work program. This should not now be held against the respondent as a basis for requiring the respondent to provide permanent part-time work to an employee in the DTI Command in circumstances where the respondent has demonstrated that it is not practicable to do so. The fact that part-time work is available in other parts of the respondent's operation is irrelevant to the determination of this Application.
32 The respondent is under no obligation to fashion or create a job or position to accommodate the circumstances of the applicant. In this respect, I rely upon the following statement of the Full Bench (Hungerford and Marks JJ, O'Neill C) in Cansino v South Western Sydney Area Health Service (1998) 130 IR 1 (at 16), albeit that this statement was made with respect to what was then s 94 of the IR Act, since repealed and replaced by s 243 of the Workers Compensation Act 1987 (WCC Act):
We are quite unable to construe the relevant provisions as requiring the respondent in some way to create or fashion a job or position to accommodate the circumstances of the appellant.
33 There is nothing in the materials relied upon by the applicant in this matter which obligates the respondent to employ her as a part-time employee, five hours per day, three days per week, on an ongoing basis.
34 The applicant has an extant workers compensation claim. Her entitlements and remedies, if any, are to be found in the WCC Act and the WIMWC Act, not in the IR Act.
35 I find that there is no unfairness to the applicant in the respondent's decision to medically retire her pursuant to s 94B of the Police Act. Her Application must be dismissed."
[3]
Grounds of appeal
The grounds of appeal, as set out in the Application for Leave to Appeal and Appeal, were:
"1. The Commission erred at law in finding at [26] (adopting the respondent's submissions at paragraph 5.4 recited at [22]) and at [28]-[29], that the Commission has no jurisdiction to determine or examine whether the respondent has breached s 49 of the WIMWC Act by operation of s 105 of the WIMWC Act (Ground 1).
2. The Commission erred at law in finding at [30] that the Commission does not have jurisdiction to consider unlawful disability discrimination under s49D of the AD Act (Ground 2).
3. The Commission, although finding that there was no unfairness demonstrated in the case at [27] and at [35], failed to consider the substantive merits of the application and by consequence, denied procedural fairness and constructively failed to exercise jurisdiction (Ground 3).
4. The Commission erred at law in finding at [31] that the availability of part-time work in other parts of the respondent's operation is irrelevant to the determination of the application (Ground 4).
5. The Commission erred at law in finding at [34] that due to the existence of the appellant's accepted workers' compensation claim, her entitlements and remedies were found in the WC Act and WIMWC Act, not in the IR Act (Ground 5)."
In his oral submissions, Mr Howell of Counsel for the appellant clarified that grounds 4 and 5 were not pursued as separate grounds of appeal. Mr Howell submitted that " … [grounds 4 and 5 are] really manifestations of the errors otherwise pleased in ground 1 to 3. … So we don't plead them as separate grounds of appeal."
The appellant also sought and was granted leave to amend ground 2 to replace the word "consider" with the word "determine", so that ground 2 now reads:
The Commission erred at law in finding at [30] that the Commission does not have jurisdiction to determine unlawful disability discrimination under s49D of the AD Act.
The reasons why leave to appeal should be granted, as set out in the Application for Leave to Appeal and Appeal, are:
"a. Questions 1 and 2 raise a substantial issue of law and the broader jurisdiction of the Commission as it considers the interaction between s 89 of the IR Act and s 105 of the WCWIM Act, and the operation of s 169 of the IR Act.
b. Question 3 raises a significant matter of principle and amounts to a substantial injustice to the appellant as the Commission did not considered [sic] the merits of the application."
[4]
Leave to appeal
The Full Bench invited the parties to address the granting of leave and the merits of the appeal together.
[5]
Principles on leave to appeal
Pursuant to s 188 of the IR Act, an appeal to a Full Bench of the Commission requires leave of the Full Bench. The Full Bench is to grant leave if, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, leave should be granted.
The parties agreed that the principles concerning leave to appeal are well settled.
The respondent's Outline of Submission on Leave to Appeal set out that:
"2. The principles concerning leave to appeal are well settled as the Appellant submits at [10 of the applicant's Outline of Submissions] [1] . However the Respondent seeks to emphasise that:
(a) leave is not lightly or automatically granted and will not generally be granted unless it raises substantial issues of principle or law, or has wider implications for the Commission's jurisprudence. [2]
(b) the Full Bench will only intervene to correct an error or where there has been a demonstrable failure by the primary decision-maker below to properly exercise the discretion afforded to them [3] . Where there is no error detected, or no demonstrable failure to properly exercise discretion, it is futile to grant leave to appeal because the appeal proper cannot succeed.
3. The Respondent also emphasises that the Commissioner's reasons should be read fairly and as a whole, not with a 'fine appellate tooth-comb' attuned to detect error [4] ."
The appellant agreed with the respondent's articulation of the principles, taking issue with their application.
[6]
Appellant's submissions
In her written Outline of Submissions, the appellant articulated several bases on which leave should be granted.
Firstly, she submitted that the Decision was inconsistent with other decisions of the Commission, referencing decisions of Commissioner Webster in Ceniza v Secretary, Ministry of Health in respect of NSW Health Pathology South [2022] NSWIRComm 1002 at [61] and a Full Bench of the Commission in York v Department of Communities (NSW) (2015) 255 IR 1 at [71].
Consequently, the appellant submitted that:
"The relationship between the WIM Act and the AD Act and Part 6 of Chapter 2 of the IR Act, raises matters of broad and general importance to the jurisprudence of the Commission."
The appellant further submitted that:
"The appeal does not primarily challenge findings of fact. The Grounds of appeal assert legal error in a number of respects, ultimately leading the Commissioner to fail to determine the substantive claims made by the Appellant in support of her contention that her dismissal was harsh, unjust and unreasonable. The refusal to consider and determine the central claims advanced by the Appellant in support of her contention that the dismissal was harsh, unjust or unreasonable amounts to a refusal to exercise jurisdiction. Leave to appeal should be readily granted to cure that jurisdictional error."
In her Outline of Appellant's Reply Submissions, the appellant expanded on this, by submitting:
"2. … It is beyond argument that the Commissioner did not determine either the Appellant's claim that the Respondent contravened s 49 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) or s 49D of the Anti-Discrimination Act 1977 (NSW) (AD Act), in terminating her employment (the WIM Act Claim and the AD Act Claim, respectively). The Commissioner did not 'determine' these two fundamental claims made by the Appellant in support of a finding the dismissal was harsh, unjust and unreasonable: cf RLSUB at [8]. Failing to do so for the reasons identified in the Decision, enlivens considerations of broader application to the Commission's jurisdiction. The Full Bench does not finally determine the grounds of appeal, that is finally determine whether the Decision was correct or otherwise, when considering Leave to Appeal … . Each of the Grounds of Appeal are sufficiently arguable to warrant the grant of leave to appeal in the public interest. …"
In oral submissions, Mr Howell submitted in relation to the key points of grounds 1:
"The Commissioner has found he did not have power to decide the relevant contention. In both respects my client says that the Commissioner erred in failing to determine those two substantive clearly articulated parts of the applicant's claim.
…
Murphy C has misconstrued the scope and nature of the power given to him, that is to say he has misconstrued the nature of the jurisdiction with which he was conferred that has led to him not to determine two substantive clearly articulated arguments advanced in support of the appellant's claim below and in doing so he has constructively failed to exercise jurisdiction.
…
… the jurisdiction of the Commission is enhanced by s 175 of the Industrial Relations Act which … [i]s often talked about as an interpretive provision but, with respect, it goes far beyond merely permitting interpretation. 'The Commission may for the purpose of exercising its function in connection with a matter before it' … clearly delineating and narrowing the nature of a determination of this kind to matters with which the Commission is otherwise dealing 'with a matter before it, determine any question concerning the interpretation, the application or operation of any relevant law or instrument'.
There's no carve out for the Anti-Discrimination Act. There's no carve out for the Workplace Injury Management Workers and Workers Compensation Act, the Workers Compensation Act, the Work Health and Safety Act, or any other Act. The Commission is expressly empowered to form a view as to the proper interpretation and, importantly, the application and operation of any relevant law for the purpose of disposing of a matter before it.
…
[Section 175] specifically empowers the Commission to determine, for the limited purpose, the interpretation, application and operation of any relevant law. And application and operation go well beyond merely interpretation."
In response to the submission that the Workplace Injury Management Workers and Workers Compensation Act 1998 (NSW) ("WIM Act") gave exclusive jurisdiction to the Personal Injury Commission ("PIC"), Mr Howell submitted that because the appellant was now a former employee, the PIC no longer had jurisdiction. A determination by the Commission in respect of an alleged breach of obligations under the WIM Act concerning the appellant's circumstances in respect of which the PIC could not make a determination, would not amount to the Commission purporting to exercise jurisdiction exclusively held by the PIC.
In his oral submissions, Mr Howell also submitted that the appellant had never been on notice that the Commission considered it lacked jurisdiction to determine the Anti-Discrimination Act 1977 (NSW) ("AD Act") claims, and therefore had been denied procedural fairness in being unable to put submissions that the Commission had such jurisdiction and should exercise that jurisdiction. Mr Howell submitted:
"The first my client knew about it was when the judgment was published and, with the greatest respect to Commissioner Murphy, that is about as fundamental a breach of the obligation to afford procedural fairness as you'll get. He didn't just deal with merits in a way that we weren't put on notice of; it was the jurisdiction which was found to not exist."
[7]
Respondent's submissions
The nub of the respondent's written submissions can be extracted from her Outline of Submission on Leave to Appeal, as follows:
"4. … [I]t is apparent that when one considers the Decision, in light of the submissions advanced by the parties, the Commissioner was correct when he held that the Commission did not have the jurisdiction to determine whether the Respondent contravened s 49 of the Work Injury Management and Workers Compensation Act 1998 (NSW) or s 49D of the Anti-Discrimination Act 1977 (NSW). Properly and fairly understood, the Commissioner did not hold that the factual matters pertaining to any such claim were not relevant. That is apparent because the Commissioner set out the Respondent's submissions in the Decision (at [26]) and said that he determined to dismiss it for the reasons set out in those submissions (Decision at [26]), and it is also apparent because of the Commissioner's consideration and acceptance of the evidence of the impracticability of the part time role (Decision at [31]). Properly and fairly understood, the Commissioner's reasons included an acceptance that the factual matters that might pertain to a contravention of those Acts were relevant to the assessment he had to undertake; that is whether the dismissal was harsh, unjust or unreasonable. That is, the Commissioner adopted an entirely orthodox and permissible approach to the consideration of an application pursuant to s 84 of the IR Act, in light of the way that it was argued by the Appellant.
…
8. The submission that the Commissioner did not determine the substantive claim (AS at [10(e)]) also does not withstand scrutiny. Again, the Commissioner appreciated that the case was an application under s 84 of the IR Act (Decision at [1]), in circumstances where there was no issue that the Appellant's employment was terminated in accordance with s 94B of the Police Act 1990 (NSW), and what the Appellant really argued was that the Respondent should have changed her role on permanent basis to a part time role rather than the full time role that she was employed to fulfill (Decision at [10]). The Commissioner's finding at paragraph (26] of the Decision picks up all of those matters set out in paragraph [21] of the Decision about the nature of the task."
(Emphasis in original)
In oral submissions Mr Darams of Counsel, who appeared for the respondent, drew together the respondent's response to the appellant's claim of not being on notice that the Commissioner considered the Commission lacked jurisdiction to determine the AD Act claims, with the respondent's overarching submission that the focus of the Commission's jurisdiction in determining claims pursuant to s 84 of the IR Act. He submitted:
"… [that in dealing] with the procedural fairness point about the Anti-Discrimination Act in a moment, our submission is that you would read that in the context of that precise issue that was asked of him, that is make a finding as a part of the three things that were articulated, a breach of WIM Act, breach of the Anti-Discrimination Act and an unfair dismissal, and Murphy C in my respectful submission correctly says, well, this Commission doesn't have jurisdiction to determine whether the Act has been contravened as a matter of law in that respect. He's not, and this is the Colefax point which the Full Bench had, in our submission we make the distinction between the factual elements and the legal elements, he's not saying in my respectful submission that one can't have regard to it. He's just simply saying in the case that was articulated this wanting a breach of the Act that it's not this Commission's jurisdiction to determine that it has been breached in the manner that was argued below.
I will come to 175 in a minute, but could I just also make this observation. In terms of an application under s 84 of the Act, there's no requirement or obligation on a Commission member to determine along the way whether there has actually been a breach of the WIM Act or the Anti-Discrimination Act, finally legally determine whether that has occurred in discharging their jurisdiction under s 84 of the Act. Certainly the legislation indicates things that have to be taken into account but to say that the case there has to be a determination that it has been breached in order for the jurisdiction to be exercised properly, when I say the jurisdiction I mean the jurisdiction of s 84, there's no provision on the Industrial Relations Act that provides that is the case.
Now, if one goes to s 88, and just observe what s 88 does say, it starts off obviously saying, 'In determining the...take into account', the other matters, and ultimately in subs (f) 'such other matters...Commission considers relevant'. Nowhere in there will you find a statement that says as a step along the way you must determine as a separate body whether or not this Act or that Act has been contravened.
…
… [T]he jurisdiction was that vested under s 84. It was the decision to determine whether the dismissal was harsh, unjust or reasonable, so there's no constructive failure at all to determine that. He's not asked himself the wrong question. He has, in my respectful submission, because of the submissions, identified well what is this claim, so he has determined the claim. He has determined the claim under the Act in accordance with s 88 of the things that may be taken into account."
The respondent rejected the appellant's submission that there were inconsistencies between the Decision and other decisions of the Commission. Mr Darams took the Full Bench to Commissioner Webster's overarching observations in Ceniza v Secretary, Ministry of Health in respect of NSW Health Pathology South [2022] NSWIRComm 1002 that:
"61 … The Commission is not reposed with jurisdiction to make determinations with respect to whether the requirements of the WIMWC Act has been complied with by any party. The question is only relevant to the extent that it influences an evaluation of whether the dismissal was unfair."
[8]
Overall
The questions raised in this appeal have the potential to impact significantly the conduct of matters before the Commission.
The appellant presses for an outcome under which, in determining applications pursuant to s 84 of the IR Act, the Commission must consider and determine any claim that any other legislative provision has been breached, or otherwise not complied with, by specifically addressing and determining the terms of the other legislative provision.
The respondent says, in summary, that the Commission should consider and determine any issues raised in applications pursuant to s 84 of the IR Act only through the consideration of whether a dismissal was harsh, unreasonable or unjust.
The reference to "Colefax" in the passage reproduced at [27] above was to the decision of the Full Bench in Margaritte Joanne Colefax v Secretary, Department of Education (No. 3) [2019] NSWIRComm 1000 ("Colefax"). In that case the Full Bench observed:
"76. In making his finding, the Commissioner accepted submissions that had been made by the respondent, which were repeated before the Full Bench, that this Commission has no jurisdiction to make factual or legal findings about an alleged contravention of a determination made by the Workers Compensation Commission.
77. We have some doubts about the conclusion that the Commission is unable to make relevant factual findings for the purposes of exercising its jurisdiction under the Industrial Relations Act. However, this is not an appropriate case in which that issue ought be tested."
The observations of the Full Bench in Colefax do not completely determine the questions explicitly now before the Full Bench. That decision nevertheless supports the outcome pressed for by the respondent.
The Commission is plainly reposed of jurisdiction to determine whether a dismissal is harsh, unreasonable or unjust. The scope of such a determination is, on its face, broad and capable of taking into account any factual issues raised by either party to the claim.
Through s 175, the Commission is empowered to "determine any question concerning the interpretation, application or operation of any relevant law …". Confining the jurisdiction of the Commission in the way the respondent contends would ignore s 175 of the IR Act.
Two things should be noted about the Commission's power from the face of the section. Firstly, it is expressly only for the purposes of exercising the functions of the Commission. Secondly, s 175 provides that the Commission "may" determine those matters.
Whether the Commission should proceed to determine any question concerning the application, interpretation or operation of another law will depend on it being relevant to the purpose for which the Commission is exercising the functions of the Commission.
Most obviously, the restriction as to purpose means that any determination by the Commission cannot be for the purpose of granting any relief available under an act other than one which vests the Commission with jurisdiction. A decision of the Commission would therefore not be a statement of the meaning or effect of any law outside of the Commission's jurisdiction.
This restriction, together with the use of "may" in s 175, results in us being unable to accept the appellant's submission that simply by raising questions of breaches of other acts a party has done sufficient to require the Commission to determine whether an act other than the IR Act, or any other legislation investing the Commission with jurisdiction, has been breached.
In the current matter, the purpose must be to determine whether the dismissal of the appellant was unfair. The "question" for determination is whether the alleged breach of the "relevant law" rendered the dismissal harsh, unreasonable or unjust.
Further, a party seeking to have the Commission exercise the power in s 175 of the IR Act must establish that it is appropriate, as a matter of discretion, for the Commission to exercise that power.
[9]
Ground 1
It is clear from the totality of the impugned paragraphs of the Decision, being [26] and [28]-[29], and the paragraphs of the respondent's submission referred to therein, that in those paragraphs Commissioner Murphy was referring to the purported exercise by the Commission of jurisdiction to make decisions pursuant to the WIM Act.
As the Commissioner observed at [29], s 105 of the WIM Act specifically provides the PIC the "… exclusive jurisdiction to examine, hear and determine all matters arising under the [WIM Act] …".
The Commissioner's articulation of the questions before him is consistent with the logic we have articulated above, and with the decision of the Commission in Colefax. We agree with the respondent that in reaching those conclusions, the Commissioner " … did not hold that the factual matters pertaining to such a claim were not relevant".
While the Commissioner's phrasing of the analysis he should conduct might initially convey that he proposes to disregard the kinds of obligations imposed by s 49 of the WIM Act, we do not agree that he has had no regard to the issues raised by the appellant.
Both in the paragraphs of the respondent's submissions adopted by the Commissioner, and in the analysis following his adoption of those submissions at [26], the Decision has addressed the relevant facts in the context of s 84 of the IR Act.
The Commissioner has set out that, in the context of the decision he is making pursuant to s89 of the IR Act, he would only consider the respondent's determination that the work of the appellant could not be done part-time as something he should interfere with if he found that determination demonstrated unfairness to the appellant. The Commissioner's findings were made in the terms of s89 of the IR Act, as he is required to do.
In our view the Commissioner considered an obligation of the kind created by s 49 of the WIM Act in an appropriate manner in determining the appellant's application pursuant to the IR Act.
[10]
Ground 2
There is no equivalent to s 105 of the WIM Act in the AD Act. Indeed, the IR Act specifically requires the Commission to take account of the "principles" of the AD Act in its deliberations.
It is apparent from [30]-[33] of the Decision that the Commissioner did consider those principles. Indeed, and contrary to the words of [30], he gave consideration to the specific requirements of s 49D of the AD Act, before then making findings in terms of s 89 of the IR Act.
The respondent submitted that in reaching those conclusions, the Commissioner " … did not hold that the factual matters pertaining to such a claim were not relevant". We would go further and find that the Commissioner addressed the requirements of s 49D of the AD Act in the terms pressed for by the appellant.
To address the submissions of the appellant that she was denied procedural fairness, we agree that it would have been preferable for the question of the jurisdiction of the Commission to determine questions pursuant to the AD Act to have been the subject of explicit submissions.
Nevertheless, given the logic we have articulated above, the Commissioner correctly considered the matters before him. Despite determining that he had no power to assess claims pursuant to the AD Act, he in fact worked through the very sections of the AD Act which the appellant submits were not properly addressed.
Accordingly, the respondent is correct that there is no utility in allowing the appeal on this basis alone. The question the appellant says should have been specifically addressed, was indeed addressed.
[11]
Ground 3
We understand this ground of appeal to take objection to the opening words of [27] of the Decision, where Commissioner Murphy found that it was "… a matter for the respondent, not the PSA or this Commission, to determine whether it is 'reasonably practicable' for the work which was previously undertaken by the applicant on a full-time basis to be performed on a part-time basis for five hours per day, three days per week, ongoing".
Out of context, this could be taken as the Commissioner failing to exercise the jurisdiction of the Commission to determine whether a dismissal was unfair. However, the Decision expressly references the Commission's jurisdiction in such terms and concludes that "[no] such unfairness has been demonstrated in this case".
Accordingly, the Commissioner correctly exercised the jurisdiction of the Commission pursuant to s 84 of the IR Act.
[12]
Determination
This Appeal raises important questions as to the powers of the Commission. Accordingly, in the public interest we grant leave to appeal.
In the Decision, Commissioner Murphy correctly rejected submissions that the Commission improperly purport to exercise jurisdiction belonging to other tribunals. In doing so, he nevertheless properly gave consideration to the facts relevant to the sections in the other acts, in the context of the Commission's jurisdiction to determine whether a dismissal was unfair.
For these reasons, we dismiss the appeal.
[13]
Orders
The Full Bench makes the following orders:
1. Leave to appeal is granted.
2. The appeal is dismissed.
[14]
Endnotes
See also Zopfv Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1012 at [22-27]; Bossack v Health Secretary in respect of Murrumbidgee Local Health District [2020] NSWIRComm 1009 at [27-30]
See Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 at [5]: PSA v Roads and Maritime Services (2015) 250 IR 412 at [10-11]
Section 191 of the Industrial Relations Act 1996 (NSW); Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 at [10]; Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 499; (1999) 92 IR 32; House v The King [1936] HCA (1936) 55 CLR 499
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291 (per Kirby J); Drake Personnel v WorkCover (1999) 90 IR 432 at 458 (Wright P and Walton J)
[15]
Amendments
10 January 2023 - Paragraph [45] and [48] Slip Rule amendment to correct reference to s 105 and replace with reference to s 49.
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Decision last updated: 10 January 2023
Parties
Applicant/Plaintiff:
Davidson
Respondent/Defendant:
Commissioner of Police
Legislation Cited (6)
Workplace Injury Management Workers and Workers Compensation Act 1998(NSW)s 105
Work Injury Management and Workers Compensation Act 1998(NSW)