On 25 February 2022, the respondent issued an order, hereafter called the Order', pursuant to s 181D of the Police Act 1990 of 'the Act', removing the applicant from the New South Wales Police Force, which I will refer to as 'the Force. I will refer to that as 'the Force' from hereon in.
The order arose from the applicant's failure to abide by a direction made by the respondent on 7 September and 25 September 2021, in relation to COVID-19 vaccinations. From hereon will this be referred to as 'the Direction'.
The applicant has sought a review of the order by way of an application in accordance with s 181E of the Act, which I will refer to as 'the Application'.
In considering the Application, I am required by s 181F of the Act, to take the following approach:
1. Firstly, to consider the Commission's reasons for the decision to remove the applicant from the Force;
2. consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust; and
3. consider the case presented by the Commissioner in answer to the applicant's case.
Section 181F of the Act, places the burden of proof on the applicant to establish that the removal was harsh, unreasonable or unjust. Given that the applicant was unrepresented in these proceedings, the above approach, was brought to his attention prior to him making his closing submissions.
The following background falls from the evidence and is uncontroversial.
The applicant commenced training at the police academy in January 2015 and was attested as a probationary police officer with the force on 21 August 2015 and then he was made a constable.
The applicant was promoted to the position of senior constable on 21 August 2020 and from that time onwards he was stationed at the North Shore Area Command.
From 19 February 2021, medical information in relation to COVID-19 vaccines were provided to members of the Force through various methods, that included the Nemesis system, facts sheets and also in the Police Monthly Newsletter, in particular August 2021 there was a myth busting sheet.
On 7 September 2021, the respondent in writing, and in a video, issued a direction that all members of the Force receive a COVID-19 vaccination in order to perform their duties. The direction required members of the Force and employees to have received at least one COVID-19 vaccination dose by 30 September 2021 and then a second dose of a COVID-19 vaccination by 30 November and provide evidence of vaccination at the request of management.
There were exceptions to the direction including the existence of a medical contraindication or by application.
On September 2021, the applicant submitted a report to the respondent seeking an exemption from the requirement to become vaccinated, on the basis that he and his wife had concerns that the vaccines, which were currently in existence, which was Pfizer, Moderna and AstraZeneca, may interfere with his fertility and they were planning to have children. In this report he informed the respondent that his concerns arose from the inability of his wife's General Practitioner to provide an assurance as to the effect upon his fertility and also based on his own research into the three aforementioned vaccines.
On 24 September 2021, the respondent sent a reminder notice to all members of the Force and employees of the New South Wales Police Force, reminding them of the Direction and informing them that failure to comply with the Direction may lead to disciplinary action.
On 5 October, the respondent wrote to the applicant, informing him that his request for exemption, which was submitted in the report of 21 September 2021, had been refused and provided him with a further seven days to comply with the Direction.
On 12 November 2021, the applicant was served at his house, with a notice pursuant to s 181D(3)(a) of the Act, hereon called 'the Notice'.
On 3 September 2021, the applicant provided the respondent with a written response to the Notice, which he had prepared with the assistance of the New South Wales Police Association. In this reply, he advanced the proposition that he had not refused to follow the Direction, but was merely seeking to obtain further information. He repeated his concerns regarding the effect of the then current available vaccinations on his fertility and went on to request that he be placed on leave without pay until either the Novavax or the Covax vaccine became available.
On 23 January 2022, the applicant tested positive to COVID-19, then on 25 February 2022, the Order was issued, along with the statement of reasons, herein called 'the Reasons'.
Now firstly, I am required to consider the Reasons provided by the Commissioner. Now the Reasons, which were attached to the Order which provide that the grounds relied on by the respondent are as follows:
"I am satisfied that there are reasonable grounds to conclude that you have deliberately chosen not to comply with the direction of former Commissioner Fuller OPM dated 7 September 2021 and my direction issued on 25 September 2021. In particular, it appears that you have failed to receive one or both doses of COVID-19 vaccine, within the specified timeframe and/or failed to provide evidence of your vaccination status.
In the circumstances, I find that your conduct was contrary to the Police Act 1990, the Police Regulation 2015, the WHS Act and the New South Wales Police Force Code of Conduct and Ethics."
The Order then sets out the particulars of the contravention, which I need not repeat.
Turning to the applicant's case, the applicant's case was effectively that the Order was unfair for the following four broad reasons:
1. The vaccines were potentially unsafe and may affect his fertility;
2. the respondent had failed to consult with him personally;
3. the effect of the removal under the order was disproportionate to his conduct; and
4. the order was harsh, given the applicant's age, length of service and his personal circumstances.
Turning to the first of those matters, the applicant's submission in relation to the possible side effects, including a possible impact on his fertility, is effectively a submission that the Direction was unreasonable.
In my recent decision of Welch v Commissioner of Police [2023] NSWIRComm 1002, I dealt with the issue of reasonableness. In that decision, the basis for unreasonable was advanced on a different basis, effectively that there was a failure to consult, as required by the Work Health & Safety Act 2011. This is slightly different.
The applicant relied upon his own research and the alleged inability of his and his wife's treating general practitioners, to guarantee the safety of the vaccines.
The applicant did not bring forward any experts to support his propositions that the vaccines were unsafe and given that he bears the onus of proving that the Order was harsh, unjust, unreasonable, he has not satisfied that onus with respect to the potential or the dangers of the COVID-19 vaccines.
I further note that there is no authority that supports a finding that any policy or direction requiring vaccination is unreasonable and there is any number that have found that it is reasonable.
Turning secondly to the issue of consultation which I dealt with in Welch, which deals with that very same direction as the Direction in this matter.
In that decision I determined that there had been the requisite level of consultation, albeit maybe not as at 7 September 2021, but a later date, and definitely prior to the 181D order in that matter.
Here the applicant advances a different basis for alleged failure to consult and that is that there was no or little consultation with him personally, either prior to the direction or before the Order. Any requirement for consultation emanates from the Work Health & Safety Act 2011 and it does not require consultation with all individuals, particularly in circumstances where you are dealing with a large organisation, see Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356 at [132] & [124].
Turning then to the question of, I will deal firstly with harshness. Now the applicant advanced the same basis as Mr Welch did as to why the dismissal was harsh. Those included length of service, effects upon himself and his personal circumstances.
There is nothing that has been raised by the applicant in this matter, which is different to what was raised in Welch and for the same reasons that I found in Welch, I find in this matter that the removal of the applicant from the Force was not harsh and to repeat what I said in Welch:
that the removal of the applicant from the force is harsh, is beyond doubt, however the removal was a result of the applicant's deliberate failure to abide by direction of the respondent. It would be expected that members of the New South Wales Police Force would abide by such directions and particularly so in relation to matters concerning issues of safety.
I now then turn to the issue of disproportionate, which some may say that falls into the camp of unjust or perhaps unreasonable. It may be harsh as well. As we all know, well not all of us, it is possible that all three could be met at the same time, but in this case, for the same reasons, I find that the Order is not harsh, I find that it is not disproportionate, particularly bearing in mind the nature of the Direction, the nature of the relationship between the applicant and the respondent and particularly so, given it is a matter concerning issues of safety.
For the above reasons I find the applicant has not made out his case and that his removal from the Force was not harsh, unjust or unreasonable. Accordingly, I order that the Application be dismissed.
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Decision last updated: 15 February 2023