Ferraris v Commissioner of Police

Industrial Relations Commission (NSW)|2006-07-01|Before: Wright J, Walton J

CITATION: Ferraris v Commissioner of Police [2006] NSWIRComm 243

APPELLANT Vicki Ann Ferraris PARTIES: RESPONDENT Commissioner of Police

CORAM: Wright J President; Walton J Vice-President; Stanton C

Industrial Arbitration Act 1940 Industrial Relations Act 1996 ss 83, 84, 187, 188, 405 Industrial Relations (General) Regulation 2001 cl 5, 6 LEGISLATION CITED: Police Act 1990 ss 44, 73, 83, 89 Police Regulation Act 1899 Police Regulation 2000 cl 13 Public Service Act 1902 s 32 Public Service Act 1979 s 69

Arnold v Wood (1996) 135 FLR 343 Breen v Williams (1996) 186 CLR 71 Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity (2003) 140 IR 360 Deputy Commissioner of Patents v Board of Control of Michigan Technological University (1979) 28 ALR 551 Doring v Spinout Pty Ltd [2003] NSWIRComm 306 Erduran v Menzies Group of Companies [2003] NSWIRComm 11 Ex Parte Wurth; Re Tulley (1954) 55 SR (NSW) 47 Gibson v Western Sydney Area Health Service (2003) 130 IR 95 Houssein v The Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 Kerr v Commissioner of Police and Crown Employees Appeal Board [1977] 2 NSWLR 721 CASES CITED: Kingmill Australia Pty Ltd (t/a Thrifty Car Rental) v Federated Clerks Union of Australia (NSW Branch) (2001) 106 IR 217 London & North Western Railway v Runcorn [1898] 1 Ch 561 Mann v Ross (1999) 97 IR 385 Myers v Police Service of New South Wales (1999) 93 IR 123 Oslead Pty Ltd v Baier (AIRC, Print Q6780, 24 September 1998) Owens v New South Wales Police Service (1998) 87 IR 1 Police Association of New South Wales (on behalf of Adam Tregonning) and New South Wales Police Service [2000] NSWIRComm 14 R v Clyne, Ex parte Harrap [1941] VLR 200 Ryan v Furneys Stockfeeds Limited (1996) 66 IR 298 Ferraris v NSW Police [2005] NSWIRComm 240 Zoological Parks Board of New South Wales v Australian Workers Union (2004) 135 IR 56

APPELLANT Mr S Crawshaw SC Solicitors: Walter Madden Jenkins, Solicitors

LEGAL REPRESENTATIVES: RESPONDENT Ms T Anderson of counsel Solicitor: Binny Batra Legal Services NSW Police

CORAM: Wright J, President Walton J, Vice-President Stanton C

Application by Vicki Ann Ferraris for leave to appeal and appeal against a decision of Deputy President Grayson given on 20 July 2005 in Matter No IRC 1573 of 2005

DECISION OF THE COMMISSION [2006] NSWIRComm 243 1 Until recently, it was assumed that probationary police constables in New South Wales had rights of redress against their dismissal from employment (or to use the phrase often found in relevant legislation, as we later discuss, when their probationary employment was annulled). 2 It had also been recognised that probationary police constables had rights to redress against the termination of their employment in the Crown Employees Appeals Board (the predecessor to the Government and Related Employees Appeal Tribunal) as long ago as 1977 when the Court of Appeal decided Kerr v Commissioner of Police and Crown Employees Appeal Board [1977] 2 NSWLR 721. 3 There have been a number of decisions of this Commission which proceeded on the assumption that there was power to order reinstatement, or to provide other forms of redress for the dismissal of a probationary police constable: see, for example: Owens v New South Wales Police Service (1998) 87 IR 1; Myers v Police Service of New South Wales (1999) 93 IR 123; Police Association of New South Wales (on behalf of Adam Tregonning) and New South Wales Police Service [2000] NSWIRComm 14. 4 Also of significance to the relevant legislative history are the 1976 amendments to the Industrial Arbitration Act 1940, with respect to the rights of certain employees of the Crown, including members of the police force. Those amendments extended the jurisdiction of the then Industrial Commission by providing express rights of redress to persons employed under the Police Regulation Act 1899. It is clear from the lineage of the current legislative instruments governing the Police Force that those instruments assumed that rights of redress from dismissal have been available to probationary police officers for many years. 5 Another important historical consideration is that until recently the legislature did not refer to the "dismissal" of probationary employees in statutory employment but rather to the power to "annul" the appointment or employment of persons appointed on probation: see, for example, the judgment of the Full Court in Ex Parte Wurth; Re Tulley (1954) 55 SR (NSW) 47 at 49 - 50, concerning s 32 of the Public Service Act 1902. See also s 69 of the Public Service Act 1979, which contained a similar provision to s 32 of the 1902 statute. 6 It seems therefore that the extended definition of the expression "dismissal" in s 83(5) of the Industrial Relations Act 1996, insofar as it refers to a dismissal encompassing, in the case of a public sector employee, "dispensing with the services of the employee, dismissing the employee as a consequence of disciplinary proceedings against, or the commission of an offence by, the employee or annulling the appointment of the employee" included reference to the verbal formula used for many years to describe the termination of employment of a probationary employee, including that of probationary police constables (noting that the phrase "public sector employee" is expressly defined in the Dictionary to the Industrial Relations Act to include employees of the NSW Police). 7 The present appeal is brought pursuant to ss 187 and 188 of the Industrial Relations Act. The appellant, Vicki Ann Ferraris, has applied for leave to appeal and, subject to leave being granted, appeals against the decision of Grayson DP of 20 July 2005 in Ferraris v NSW Police [2005] NSWIRComm 240. While the appellant's claim was dismissed on jurisdictional grounds, his Honour nevertheless considered the substantive merits of the application, ultimately finding that the appellant's dismissal was procedurally and substantively unfair. Consequently, the present appeal is limited to the jurisdictional findings of Grayson DP. 8 In the proceedings at first instance, the appellant applied for a reinstatement order under s 84 of the Act on the basis that her dismissal from the NSW Police was unfair. Grayson DP dismissed the application, concluding that Part 6 of the Act (which includes s 84) did not apply to the appellant in her position as a probationary police constable because of the combined operation of the exclusionary provisions in s 83(2)(b) of the Act and cl 6(1)(c) of the Industrial Relations (General) Regulation 2001 ("the Regulation"). 9 Section 83(2)(b) of the Act relevantly provides: (2) This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes: … (b) employees serving a period of probation or qualifying period … 10 Clause 6 of the Regulation provides: 6 Other exemptions from unfair dismissal provisions ( 1) For the purposes of section 83(2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act: (a) employees engaged under a contract of employment for a specified period of time, if the specified period is less than 6 months, (b) employees engaged under a contract of employment for a specific task, (c) employees serving a period of probation or qualifying period, if the duration of the period, or the maximum duration of the period, is determined in advance and either: (i) the period, or the maximum duration, is 3 months or less, or (ii) if the period, or the maximum duration, is more than 3 months - the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment, (d) employees engaged on a casual basis for a short period except employees who: (i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and (ii) would, but for the dismissal, have had a reasonable expectation of continuing employment with the employer. (2) This clause applies only with respect to dismissals under contracts of employment entered into on or after 1 October 1997. 11 Grayson DP found that the period of probation did not need to be found in a contract of employment for cl 6(1)(c) to apply and that there was no serious issue that the duration of the period of probation was determined in advance as cl 6(1)(c) requires. The Deputy President concluded: In the event that the statute so plainly determines in advance of employment that a period of probation will apply to newly-appointed police constables, it is not to the point whether there is in existence at the time of commencement of the relationship, a contract of employment embodying its terms. It is sufficient that the statutory prescription as to probation applies and where as here, there is no contest as to the reasonableness of the period of probation fixed by statutory means (see for example, Mann v Ross and Others (1999) 97 IR 385) there is no reason to doubt that the exclusionary provisions of clause 6(1)(c) of the Regulation apply. In so concluding, it may be accepted I think, as Mr Reitano submits, that the provisions of clause 6(2) of the Regulation do not operate to limit the scope of clause 6(1)(c) to dismissals under specific contracts of employment. Rather the provisions of clause 6(2) seem to me to limit the scope of clause 6(1)(a) and 6(1)(b) to dismissals under only those contracts of employment of the kind specified which came into existence on or after the date prescribed by clause 6(2) namely, 1 October 1997. 12 His Honour accordingly held that as cl 6(1)(c) of the Regulation and s 83(2)(b) of the Act applied to probationary police officers, the appellant's application was incompetent and dismissed the application. 13 Grayson DP made certain other observations relating to the interplay of the provisions of the Police Act 1990 and the Industrial Relations Act, however, it is unnecessary to refer further to those observations. 14 Notwithstanding his conclusion on the jurisdictional issue, his Honour went on to consider the merits of the application and made an order for the reinstatement of the appellant to her former position if he was wrong about the jurisdictional issue. 15 The issues have narrowed on appeal to the following two questions:

(1) whether the effect of cl 6(2) of the Regulation is such that cl 6(1) operates only to exclude employees from Part 6 if they are dismissed under a contract of employment? In short, Mr S Crawshaw SC, who appeared for the appellant, submitted that the effect of cl 6(2) is that cl 6(1)(c) only applies to dismissals made under a contract of employment and that as the appellant was not dismissed under a contract of employment but rather under s 73(3) of the Police Act , the exclusion in cl 6(1)(c) did not apply to her. Ms T Anderson of counsel who appeared for NSW Police disagreed with this interpretation of the relevant provisions and argued that the effect of cl 6(2) was confined to providing that cl 6(1) had prospective operation or, alternatively, only applied to cl 6(1)(a) and (b) and not cl 6(1)(c). Ms Anderson also made submissions regarding the inconsistent operation of the clause to public and private sector employees if Mr Crawshaw's interpretation was correct.

(2) whether the appellant's probation period had been determined in advance in the manner required by cl 6(1)(c) of the Regulation? Mr Crawshaw SC submitted that the appellant's probation period had not been determined in advance as the period could be extended by reference to the terms of the Police Act and her terms and conditions of employment. Ms Anderson submitted that it had been effectively determined in advance as the Commissioner had not made a contrary determination when the appellant was first appointed to her position.

16 Other than with respect to the length of the appellant's probation period, the factual background is not in dispute and can be shortly stated from the decision of Grayson DP as follows:

(a) the appellant commenced duties as a probationary constable assigned to the Shoalhaven Local Area Command working from Nowra Police Station on 27 August 2004;

(b) on 29 September 2004, the appellant, whilst driving her private motor vehicle, was arrested for drink driving (with a high range PCA reading) and on 13 December 2004, she pleaded guilty to, and was convicted of, the relevant offence;

(c) on 22 December 2004, while suspended without pay, the appellant was served with a notice to show cause why she should not be dismissed from employment under s 73(3) of the Police Act , to which she responded in writing on or about 18 February 2005; and

(d) On 14 March 2005, the appellant was served with a dismissal order in the following terms: I, David Barry Madden, Deputy Commissioner, Operations, having considered your conduct and the issues outlined below, am of the view that you should be dismissed from employment as a probationary constable with the New South Wales Police pursuant to Section 73(3) Police Act 1990. By this Order I remove you from the New South Wales Police.

In reaching my decision I have given careful consideration to the matters in the Show Cause Notice. I am satisfied that the following matter demonstrates your failure to meet the standards required by NSW Police in order to hold the office of Constable of Police, namely - 1. Conduct and Integrity in that:

a) About 4.15am on 29 September 2004 you drove a motor vehicle with the high range of prescribed concentration of alcohol Your dismissal takes effect from the date of this order.

You will be paid two weeks salary in lieu of notice. Your final pay, including any annual leave accrued to the date of termination, will be deposited to your account as soon as possible. You should return all items of uniform, study notes and any other items or property belonging to NSW Police issued to you, to the Commander, Shoalhaven Local Area Command. As arrangements to release monies owing to you at the time of termination cannot be made until all such items have been returned, it is in your interest to do so promptly. 17 Grayson DP also found that the appellant's period of probation was expressed to be for one year in accordance with the provisions of s 73(2) of the Police Act and cl 13 of the Police Regulation 2000, however, the appellant has effectively challenged this finding on appeal. We shall shortly deal with this issue.

18 The first issue arising in this appeal is whether cl 6(1) relates only to dismissals under contracts of employment such that if a dismissal is effected by some other means, the exclusionary provision does not have any operation.

19 As mentioned earlier, Mr Crawshaw submitted that the effect of cl 6(2) is that cl 6(1)(c) only applies to dismissals made under a contract of employment and that as the appellant was not dismissed under a contract of employment but rather under s 73 of the Police Act, the exclusion in cl 6(1)(c) did not apply to her. In this regard, we observe that it was not suggested that the appellant did not have a contract of employment with the NSW Police as indeed it is clear that she did and no contrary position was advanced. The appellant simply contended that she was dismissed under the Police Act and not under her contract of employment. 20 Mr Crawshaw further submitted that cl 6(2) is not, in its terms, limited to cl 6(1)(a) and 6(1)(b) contrary to the conclusion reached by Grayson DP. In this regard, Mr Crawshaw distinguished the judgment of Beazley J in Ryan v Furneys Stockfeeds Limited (1996) 66 IR 298, which had been relied on by the respondent at first instance on the basis that the Commonwealth regulations considered in that case did not include a clause analogous to cl 6(2) and that, accordingly, her Honour's reasoning did not extend to cl 6(2) which evinces an intention that the whole clause is confined to contracts of employment. 21 Ms Anderson submitted that cl 6(2) was simply a provision intended to ensure that the exclusions set out in cl 6(1) applied prospectively and had no retrospective effect and that there is nothing in the clause to suggest that it was intended to cut down the effect of cl 6(1). Ms Anderson also submitted that to interpret cl 6(2) in the manner contended by the appellant, it would only apply to employees in private sector employment.

22 There are two matters to consider in respect of this issue:

(a) is cl 6(2) confined in its application to cl 6(1)(a) and (b)?; and

(b) if cl 6(2) applies to cl 6(1)(c), was the appellant dismissed under a contract of employment? 23 As to the first matter, we consider that the terms of cl 6(2) are clear and should not be read as being limited to (a) and (b) simply because cl 6(1)(c) does not refer to a "contract of employment". 24 There is nothing in the language of cl 6(2) to suggest that it should be confined in its application, indeed the opening words are "This clause …". Further, the legislation does not otherwise reveal an intention to confine its operation to paragraphs (a) and (b). It is correct that those paragraphs expressly refer to a "contract of employment", however, it appears that the purpose of those words is to relate those paragraphs to particular contracts, being ones for a fixed period and a specific task, respectively. 25 We observe also that the entire clause is directed to employment under a contract. Paragraph (d) refers to "employees" and "employment with the employer" and each of the paragraphs refer to "employees". This relates back to s 83 and Part 6 of the Act, which is plainly directed to employees and employers and presupposes, in all instances, the existence of a contract of employment. Accordingly, there is no basis for concluding that cl 6(2) does not apply to cl 6(1)(c) simply because the latter provision does not expressly refer to a "contract of employment". When viewed in the context of the Act, the entire regulation relates to contracts of employment. It is appropriate to consider this context in considering the operation of cl 6(2): see, for example, Zoological Parks Board of New South Wales v Australian Workers Union (2004) 135 IR 56. 26 We also agree with the submission of Mr Crawshaw that Ryan v Furneys Stockfeeds Limited (1996) 66 IR 298 does not deal with a fully analogous situation given the existence of cl 6(2) in the New South Wales scheme and, as such, the approach taken by Beazley J is distinguishable in these proceedings.

27 Finally, Ms Anderson also advanced an argument that cl 6(2) was analogous to cl 5(2) and that the purpose of both clauses was to ensure a prospective operation of the regulation. Accordingly, Ms Anderson submitted that cl 6(2) should be construed in such a way as to only relate to the prospective operation of cl 6(1) and, in effect, to paragraphs (a) and (b). Clause 5(2) provides: This clause applies with respect to dismissals occurring on or after 1 October 1997, whether the contracts of employment concerned were entered into before or after that date. 28 Mr Crawshaw challenged this aspect of the respondent's submission and submitted that the wording of cl 5(2) was quite different and provided for its prospective operation in relation to all dismissals and not just dismissals under contracts of employment. 29 We disagree with the respondent's submission in this respect. There is no basis for reading cl 6(2) in such a limited manner and effectively ignoring the operation of the phrase "dismissals under contracts of employment". In interpreting a statutory provision, the primary consideration is to consider the actual words used and to give those words their plain, ordinary meaning and full effect: see Zoological Parks Board; Kingmill Australia Pty Ltd (t/a Thrifty Car Rental) v Federated Clerks Union of Australia (NSW Branch) (2001) 106 IR 217; Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity (2003) 146 IR 360, subject to our earlier observations concerning the importance of context in the construction of statutes and other instruments. 30 Having concluded that cl 6(2) applies to each paragraph of cl 6(1), the second matter must be considered, that is, was the appellant dismissed "under" a contract of employment as is required by the terms of cl 6(1)(c)? 31 In this regard, we observe that it appeared that both parties accepted that the appellant had a contract of employment, however, Mr Crawshaw submitted that her dismissal was made pursuant to, or under, the Police Act. 32 At the outset, we observe that it is not the existence of a contract of employment that is relevant to the application of cl 6(2) and cl 6(1)(c), but rather how the dismissal was made.

33 Mr Crawshaw referred us to the actual wording of the appellant's dismissal notice and, in particular, the statement that the appellant "should be dismissed from employment as a probationary constable with the New South Wales Police pursuant to Section 73(3) Police Act 1990". He submitted that this was evidence that the appellant was not dismissed "under" a contract of employment but was instead dismissed under the Police Act. During the hearing, Mr Crawshaw noted that he was, in effect, reading the word "under" as meaning "pursuant to". 34 In its written submissions, NSW Police accepted that the power of the Commissioner to dismiss arose under the statute, but submitted that this did not mean that the dismissal did not occur under the contract of employment.

35 Neither party referred us to any authorities as to the meaning of the expression "under"; however, it is instructive to consider the meaning of "under" in other statutory contexts. The term "under" has been considered in a number of different contexts. Things done pursuant to a public Act which incorporates a special Act have been taken to be done "under" the special Act: see London & North Western Railway v Runcorn [1898] 1 Ch 561 and the natural meaning of "under" in its context is "pursuant to particular powers" : see R v Clyne, Ex parte Harrap [1941] VLR 200. R v Clyne was followed in Arnold v Wood (1996) 135 FLR 343 in which Underwood J held: There is no doubt in my mind that "under the regulations" in s 8(3)(a) means, by virtue of the regulations: see R v Clyne; Ex parte Harrap [1941] VLR 200. No breach of s 8(3)(a) occurs unless there is an export which the regulations prohibit unless specified restrictions or conditions are complied with. Section 8(3)(a) and (b) does not refer to conditions or restrictions imposed by or under a licence granted under the regulations. 36 Similarly in Deputy Commissioner of Patents v Board of Control of Michigan Technological University (1979) 28 ALR 551, Franki J concluded: I see no reason to construe the word "under" in s 151(a) in a more restrictive sense than the words "in the exercise of powers". Indeed a decision made under s 160 would not be within the words of s25(1) and so not subject to review unless that decision could properly be said to be made under s160 where it was properly said to have been made in the exercise of powers conferred by that section. This is in accord with the views expressed by Bowen CJ in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 312; 2 ALD 1 at 4. There his Honour said: "I do not think that any relevant distinction arises from the fact that the words 'in the exercise of powers conferred by an enactment' are used in s25(1) of the Tribunal Act and the words 'under Div 1 of Part V' of the Customs Act' are used in Pt XII of the Schedule to the Act and applied by s26."

37 We consider that there is nothing in the context of cl 6(2) to suggest that a different approach should be taken to the meaning of "dismissals under contracts of employment". Clause 6(2) is intended to be a provision confining the operation of the exclusionary provisions in cl 6(1). When read in the context of the Regulations and s 83 of the Act, cl 6(2) is plainly directed to the exercise of powers to bring about dismissal. That is, an employee must be dismissed under, or pursuant to, a contract of employment. We consider that this requires that the dismissal be effected by the operation of a power exercised pursuant to the terms of a contract of employment. 38 It is not in dispute that the power of the Commissioner to dismiss the appellant arose from s 73(3) of the Police Act and that the Commissioner dismissed the appellant under that Act. Section 73(3) provides: The Commissioner may dismiss any such probationary police officer from NSW Police at any time and without giving any reason.

39 This right is not repeated in the offer of employment that the appellant was required to sign before commencing her employment. We observe that it is conceivable that this power could have been included in the offer of employment and indeed it would not be unusual for such a right to be restated. No argument was advanced that the power had been implied into the appellant's contract of employment and given the limited circumstances in which terms may be implied into a contract, we do not consider that the right had been implied into her contract of employment (see Breen v Williams (1996) 186 CLR 71). We also consider that the implication is excluded by the statutory terms, namely s 73(3) of the Police Act.

40 Accordingly, we are satisfied that the appellant was dismissed under, or pursuant to, s 73 of the Police Act. She was not dismissed under, or pursuant to, her contract of employment. Accordingly, the appellant did not fall within the exclusionary provision in cl 6(1)(c) by virtue of the limitation in cl 6(2).

Was the appellant's period of probation determined in advance?

41 Given our conclusion regarding the first issue, it is not strictly necessary for us to consider this issue. However, for the reasons which we will outline, we consider it important that we address this issue. 42 As already mentioned, Grayson DP concluded that the duration of the appellant's period of probation was fixed, noting: Clearly on the evidence in this case, there can be no serious issue that the duration of the period of probation was determined in advance as clause 6(1)(c) of the Regulation requires. This is so because the Police Regulation 2000 and the Conditional Offer of Employment to which reference is made in Superintendent Moore's affidavit both prescribe a twelve-month period of probation and both predate the Applicant's employment. Mr Reitano submits absent any dispute that the period of probation is reasonable; that the provisions of clause 6(1)(c) of the Regulation operate to deprive the Commission of jurisdiction in the present matter and that the application for relief from unfair dismissal is therefore incompetent. 43 Mr Crawshaw submitted that the appellant's appointment was made by the giving to her and the signature by her of a document entitled "Offer of Employment", which contains the following provision regarding probation: My period of probation will generally be twelve (12) months. This may be extended where: · academic progression is unsatisfactory · work performance is unsatisfactory 44 Mr Crawshaw submitted that the provision for the possible extension of her probationary appointment meant that the appellant did not have the actual duration or maximum duration of her period of probation determined in advance as required if cl 6(1)(c) is to be satisfied. He also submitted that the requirement that the duration or maximum duration of a probationary period be determined in advance demands that an employee knew of the existence and duration (or maximum duration) of the probationary period prior to the commencement of the employment, citing Ryan v Furneys Stockfeeds (1996) 66 IR 298 at 300; Erduran v Menzies Group of Companies [2003] NSWIRComm 11 and Doring v Spinout Pty Ltd [2003] NSWIRComm 306.

45 Mr Crawshaw noted that an employer may reserve the right to extend a probationary period, but that cl 6(1)(c) operates only if the maximum period is determined in advance of the employment. If an employer reserves to itself a right to extend a probationary period for an unspecified period, then the duration of the period of probation is not "determined in advance". He referred to Oslead Pty Ltd v Baier (Full Bench, Australian Industrial Relations Commission; Print Q6780, 24 September 1998) and submitted that in that case it was held that where an employer makes provision for an extension of a probationary period for a further unspecified period this does not meet the requirement that the actual duration (or maximum duration) of the probationary period be determined in advance.

46 Finally, Mr Crawshaw submitted that to the extent cl 6(1)(c) is ambiguous, it should be resolved in favour of the appellant on the basis that as it was designed to exclude the operation of beneficial legislation, it should not be liberally construed and the onus is on the party asserting that the remedy is not available. He cited Mann v Ross (1999) 97 IR 385 in which the Full Federal Court said (at 390): Regulation 30B is designed to exclude the operation of beneficial legislation conferring rights on employees and the regulation should not be liberally construed: see Rose v Secretary, Department of Social Security (1990) 21 FCR 241 at 244. Given the exclusionary effect of the regulation, the party asserting that it operates to deny rights otherwise generally available bears the onus of establishing its application in the case in question … 47 Ms Anderson referred to the Police Regulation 2000, which dealt with the appointment of probationary police constables and submitted that it provided that a person when first appointed as a police officer of the rank of constable is to be appointed on probation for a period of one year or for such longer or shorter period (being not less than 6 months) as the Commissioner may direct in the case of the person.

48 Ms Anderson conceded that, as a matter of fact, NSW Police do extend the period of probation of probationary police constables in some circumstances. She further acknowledged that the offer of employment (reproduced earlier) allows NSW Police to extend the period of probation. However, in this regard, Ms Anderson submitted that the offer of employment cannot rise higher than the Regulation and that to the extent that it does, the inconsistent term would be of no effect. She contended that the Regulation sets a definite, known and maximum period of one year of probation in cases where no longer period has been directed in the case of the relevant person and that, as there was no evidence before Grayson DP that a longer period of probation had been set down in the case of the appellant, the maximum duration of the probation was always one year and it had been determined in advance.

49 We disagree with the respondent's submissions in this respect. Clause 13(1) of the Police Regulation, to which Ms Anderson referred, provides: (1) In accordance with section 73(2) of the Act, a person when first appointed as a police officer of the rank of constable is to be appointed on probation: (a) for a period of one year, or (b) for such longer or shorter period (being not less than 6 months) as the Commissioner may direct in the case of that person. 50 Further, the offer of employment which the appellant was required to sign before commencing employment expressly permitted extension of the period of probation if academic or work performance was unsatisfactory. By the very nature of that right, an extension could only occur during or at the end of the initial period of probation.

51 Ms Anderson's contention effectively required the Police Regulation to be read so that the words "when first appointed" apply not only to appointment on probation but also to the length of the period of probation and, in particular, paragraph (b). We consider that the words "when first appointed" only apply to the appointment as a police constable on probation and that the balance of the Regulation deals with the length of probation. The Commissioner has a clear discretion to extend or shorten the period of probation which is not restricted by the words "when first appointed" (and, in fact, this discretion is exercised in precisely that way). To interpret the clause in the manner contended for by Ms Anderson would require the insertion of additional words or punctuation which are not in the clause.

52 We note also that the discretion to extend the probation period is repeated in the offer of employment and it was on this basis that the appellant commenced employment.

53 Given this, we consider that Grayson DP was in error in concluding that the appellant's period of probation was determined in advance. In the present context, this means that cl 6(1)(c) does not operate to exclude the appellant from seeking an unfair dismissal remedy under s 84 as the terms of her employment meant she did not fall within the provision. It is essential for the operation of cl 6(1)(c) that the duration of the period, or the maximum duration of the period, is determined in advance. Importantly in the present context, the length of the period of extension is not specified. In this regard, we agree with the submissions of Mr Crawshaw that cl 6(1)(c) operates only if the maximum period is determined in advance of the employment. If an employer reserves to itself a right to extend a probationary period for an unspecified period, then the duration of the period of probation is not "determined in advance": see Oslead Pty Ltd v Baier.

54 Penultimately, we note that Ms Anderson submitted that as the Commissioner had not exercised its right to extend the probation period, the appellant's probation period had been set in advance. We observe that the relevant factor in assessing whether cl 6(1)(c) is satisfied is whether the Commissioner has the power to extend the probation period and constructed terms to permit the exercise of that discretion, not whether or not the Commissioner has in fact varied the period. For the reasons already outlined, we are satisfied the Commissioner had the power to lengthen the appellant's period of probation and, given that, her terms of employment did not fall within the exclusionary provision in cl 6(1)(c).

55 Finally, we should refer to some other aspects of the statutory scheme which fortify us in the conclusions we have reached. Reference has been earlier made (see para [6] above) to that part of s 83 of the Industrial Relations Act which, in dealing with the dismissal of public sector employees (including police officers), defined the term "dismissal" to include the "annulling [of] the appointment of [an] employee", a phrase specific to the dismissal of probationary public sector employees. 56 The express use of that phraseology, having regard to its historical origin and use, shows the intention of the legislature to include in the relevant part of the Industrial Relations Act, the power in the Commission to deal with the alleged unfair dismissal of probationary police constables. 57 Further, as that statutory definition is to be found in s 83(5) of the statute, it is highly unlikely that the legislature intended, in enacting s 83(2) in close proximity thereto as the provision giving regulation-making power to exclude certain classes of employees from relief, to thereby give power to exclude by regulation from the scope of the relevant provisions, a class of employee (for example probationary police constables) expressly included by s 83(5). 58 This conclusion is confirmed by reference to other aspects of both the Industrial Relations Act and the Police Act. For example, in the Industrial Relations Act, s 83 as well as including subsections (2) and (5) (respectively, the regulation-making power earlier noted, and the extended definition of the term "dismissal") also includes subsection (3) which provides: (3) This Part does not apply to the dismissal of any such employee who is an apprentice or trainee (other than an existing worker trainee) within the meaning of the Apprenticeship and Traineeship Act 2001 or any such employee who is an executive officer to whom Part 2A of the Public Sector Management Act 1988 or Part 5 of the Police Service Act 1990 applies.

Section 83(3) expressly excludes, from the jurisdiction of the Commission, the dismissal of executive officers to whom Part 5 of the Police Act applies, but makes no reference to any limitation in the power of the Commission as to probationary police officers. 59 Similarly, s 405 of the Industrial Relations Act also expressly limits the power of the Commission to make orders or awards which, relevantly, are inconsistent with certain provisions of the Police Act without detracting from the Commission's powers to make orders dealing with alleged unfair dismissals of probationary police constables. Indeed, s 405(3) expressly preserves the power of the Commission in Part 6 of Chapter 2 (Unfair dismissals). Section 405 is in the following terms: 405 Statutory provisions relating to public sector employees

(1) Any award or order of the Commission does not have effect to the extent that it is inconsistent with: (a) a right of appeal under the Government and Related Employees Appeal Tribunal Act 1980 or the Police Service Act 1990, or (b) a function under the Police Service Act 1990 with respect to the discipline, promotion or transfer of a police officer, or with respect to police officers who are hurt on duty. (2) The regulations may provide that an award or order of the Commission has effect despite any right or function referred to in subsection (1). (3) This section does not affect any decision of the Commission under Part 6 of Chapter 2 (Unfair dismissals). 60 A similar situation emerges from reference to relevant provisions of the Police Act. Section 44 and 89 of that statute provide as follows: 44 Industrial arbitration and legal proceedings excluded

(1) In this section, a reference to the employment of an executive officer is a reference to: (a) the appointment of, or failure to appoint, a person to a vacant executive position, or (b) the removal, retirement, termination of employment or other cessation of office of an executive officer, or (c) any disciplinary proceedings or disciplinary action taken against an executive officer, or (d) the remuneration or conditions of employment of an executive officer. (2) The employment of an executive officer, or any matter, question or dispute relating to any such employment, is not an industrial matter for the purposes of the Industrial Relations Act 1996. (2A) Part 6 (Unfair dismissals) and Part 9 (Unfair contracts) of Chapter 2 of the Industrial Relations Act 1996 do not apply to or in respect of the employment of an executive officer. (3) Subsection (2) applies whether or not any person has been appointed to a vacant executive position. (4) Any award or industrial agreement (whether made before or after the commencement of this section) does not have effect in so far as it relates to the employment of executive officers. (5) Subsection (4) does not prevent the regulations or other statutory instruments under this Act from applying the provisions of an award or industrial agreement to the employment of an executive officer. (6) An appeal does not lie to GREAT in relation to the employment of an executive officer. (7) No proceedings for an order in the nature of prohibition, certiorari or mandamus, or for a declaration or injunction or for any other relief, lie in respect of the appointment of or failure to appoint a person to a vacant executive position, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment. (8) In this section, industrial agreement includes any determination under section 85 and any agreement under section 86.

89 Industrial arbitration or legal proceedings excluded in relation to appointments

(1) The appointment of or failure to appoint a person to a vacant non-executive position, or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of the Industrial Relations Act 1996. (2) Subsection (1) applies whether or not any person has been appointed to a vacant non-executive position. (3) No proceedings for an order in the nature of prohibition, certiorari or mandamus, or for a declaration or injunction or for any other relief, lie in respect of the appointment of or failure to appoint a person to a vacant non-executive position, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment. (4) Subsection (3) does not affect the operation of the Government and Related Employees Appeal Tribunal Act 1980. (5) The failure of a non-executive commissioned police officer to be appointed for a further term of office as provided by section 72B is for the purposes of this section taken to be a failure to appoint a person to a vacant non-executive position. 61 It is not necessary to deal with these provisions in detail; however, it is clear that consideration of them shows that although the legislature went to some lengths to limit jurisdiction as to certain matters concerning persons employed under the Police Act - for example, the employment of executive officers (s 44(2)), unfair dismissal and unfair contract proceedings with respect to the employment of executive officers (s 44(2A)), and the "appointment of or failure to appoint a person to a vacant non-executive position ..." (s 89(1)) - there is no reference to any limitation in the Commission's jurisdiction to deal with unfair dismissal proceedings concerning probationary police officers. 62 While accepting that the expressio unius rule may often be "a dangerous master" (Houssein v The Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94), the above analysis of the statutory regime demonstrates that it is highly likely that, if the legislature intended to exclude from the jurisdiction of the Commission the power to deal with unfair dismissal proceedings concerning probationary police officers, or to allow that exclusion to occur by the making of a Regulation under s 83(2) of the Industrial Relations Act, it would have done so in very express terms. The legislature did not, of course, do so. Leave to Appeal

63 As a final matter, it is necessary to consider whether leave to appeal should be granted. Mr Crawshaw submitted that the appeal raised important matters of statutory interpretation of the Regulation concerning the jurisdiction of the Commission to hear unfair dismissal cases brought by probationary police officers and that the objections to jurisdiction upheld by Grayson DP were matters that had not previously been the subject of a decision by the Commission. Mr Crawshaw also submitted that prior to this matter, it had been assumed in a number of unfair dismissal cases brought by probationary police officers that the Commission had such jurisdiction and indeed there were some s 84 applications by probationary police officers pending before the Commission. 64 Ms Anderson did not oppose leave to appeal being granted on the construction of cl 6, although Ms Anderson objected to the grant of leave in respect of the contention that the appellant's period of probation had not been determined in advance as it had not been raised at first instance. 65 There is a broad public interest in the issues raised on appeal in this matter which extends beyond the interests of the individual parties to the appeal. The appeal involves important and difficult issues as to the correct interpretation of the two relevant statutory schemes and their interaction. In this regard, we agree with the observations of Wright J, President in Gibson v Western Sydney Area Health Service (2003) 130 IR 95 at 105 - 106 (para [32]) as to the obligation on a court or, in this case, the Commission to reach its own conclusion as to what it considers is the correct interpretation of relevant statutory schemes and their interaction, notwithstanding this might involve the adoption of a somewhat different approach to that adopted by the parties at first instance or on appeal. 66 We grant leave to appeal to consider all issues raised on appeal given the broad public interest in the rights of probationary police constables to claim unfair dismissal under the Act and also given the errors found in the decision of Grayson DP as already identified. It is in the public interest that the meaning of the relevant aspects of the Act and the Regulation be determined by the Full Bench of the Commission. Appropriate relief

67 We consider that the appeal should also be allowed. The errors of law, as earlier discussed, are such as to make this outcome appropriate. Notwithstanding that Grayson DP concluded the Commission did not have jurisdiction to hear the appellant's application, he proceeded to consider the merits of her case and found that, on the evidence, she had been unfairly dismissed. The Deputy President then went on to make a reinstatement order which was only to become effective if he was found to be wrong on the jurisdictional issue. 68 We do not consider that the Deputy President was able to make an order that is activated automatically if jurisdiction is found contrary to his conclusion (although we consider that his Honour was correct in dealing with the merits of the appellant's reinstatement application). Nevertheless, we have a discretion on appeal to determine the matter and no party suggested otherwise during the proceedings. Accordingly, given the material before us, including the full record of the proceedings before the Deputy President and the conclusions reached, we have decided to exercise our discretion in these circumstances to determine this matter and make final orders essentially for the reasons given by Grayson DP. The reinstatement order purportedly made by Grayson DP required reinstatement forthwith whereas the appellant has sought reinstatement from the date of Grayson DP's decision. The respondent did not make any submission regarding this issue. We consider it appropriate to grant the reinstatement order in the form sought by the appellant subject to the grant of liberty to apply within seven days of this decision for either party to be heard as to the form of the order. 69 Grayson DP made no orders as to back pay or continuity of service having regard to the nature of the appellant's misconduct. Neither party made any submissions regarding this issue, nor sought any variation of the conclusion reached by the Deputy President. Accordingly, we make no orders as to back pay or continuity of service beyond requiring the reinstatement, as we have discussed. Orders

70 The Full Bench makes the following orders: (1) Leave to appeal is granted. (2) The appeal is upheld and the decision as to jurisdiction at first instance is set aside. (3) The appellant is reinstated to her former position as from the date of the decision the subject of appeal. (4) Either party may apply, by written request to the Registrar within seven days of this decision, to be heard as to the form of Order (3).

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