Glen Robinson v Commissioner for Police, NSW Police Force

DECISION 1This is an application by Mr Glen Robinson for reinstatement in employment pursuant to s.241 of the Workers' Compensation Act 1987. ('the WC Act') The respondent employer opposes the application. Facts 2The facts leading to this application coming before the Commission are very largely not in contest. They can be summarised in this way. 3Mr Robinson was a police officer from April 1991 to June 2011. 4On 2 June 2011 he was medically discharged pursuant to the provisions of s 72A of the Police Act 1990. ('the Police Act') He was made an award payment pursuant to the Crown Employees (Police Officers Death and Disability) Award 2005. ('the D&D Award') 5At the time of his medical discharge, Mr Robinson held the rank of Sergeant at the Eastern Beaches LAC. He had held the rank of Sergeant since 2003. 6In November 2008, Mr Robinson read some newspaper articles describing a riot in 2001 in which he had been tangentially involved in circumstances where he had been placed in considerable danger. On reading the articles he experienced symptoms which led to his being diagnosed as suffering from the psychological injury of post-traumatic stress disorder ('PTSD'). 7He had some absence from duties and returned to full duties in August 2009. On 6 September 2009 he went on pre-arranged leave and returned to work in February 2010. He returned to a new place of work, the Eastern Beaches LAC, under a new Commander, Superintendent Dengate. 8In June 2010, Mr Robinson reported a back injury associated with wearing his police belt. He was certified fit for suitable restricted duties by his general practitioner, Dr Tilmann Rust, from 2 July 2010. 9Mr Robinson had not hit it off well, to use neutral language, with his new Commander, Superintendent Dengate. Following this report of injury there were further interactions between them, from which Mr Robinson formed the view that Superintendent Dengate had an adverse view of him. On 5 July 2010 there was a meeting between the two men which Mr Robinson characterised as an altercation. 10On that day, 5 July 2010, Mr Robinson terminated his shift and attended a medical practitioner. He was provided that day with a medical certificate stating that he was suffering from anxiety, and certified unfit for duties within the NSW Police Force. 11Mr Robinson lodged an incident notification form concerning his interaction with Superintendent Dengate. He alleged harassment, intimidation and bullying by Superintendent Dengate. 12On 6 July 2010 Mr Robinson lodged a workers' compensation claim alleging incapacity arising from a recurrence of the psychological injury he sustained on 15 November 2008, that is, the post-traumatic stress disorder arising from the 2001 incident. 13In support of that claim he provided a WorkCover medical certificate issued by Dr Rust dated 7 July 2010 describing Mr Robinson as suffering from 'anxiety' and stating that he was unfit for any work. That certification was continued by Dr Rust until 16 February 2012. 14This workers' compensation claim was disputed but was ultimately settled. Relevantly, it is not said that Mr Robinson is not an 'injured worker' within the meaning of the WC Act. 15From 7 July 2010, Mr Robinson was treated by Dr Rust and a psychologist, Ms Suzie Sharman. He did not return to duty after that date. 16On 15 October 2010 Mr Robinson lodged a complaint with the Anti-Discrimination Board (NSW) alleging disability discrimination by the respondent and referring particularly to Superintendent Dengate. 17In a series of communications with the respondent in November and December 2010, Ms Sharman stated that she did not support a return to work on Mr Robinson's part and suggested that he be medically discharged. 18In December 2010, the Workplace Injury Management Team within the NSW Police Force arranged an appointment for Mr Robinson to be medically assessed by Dr Jeff Bertucen, an independent psychiatrist, in relation to his fitness to continue employment with the respondent and consideration for medical discharge. Mr Robinson attended that appointment on 25 January 2011. 19On 31 January 2011 Dr Bertucen provided a report stating that Mr Robinson was not fit to be an operational police officer in the foreseeable future, but saying that his prognosis was uncertain and that he may be fit to return to non-operational duties after his condition stabilised further. 20Mr Robinson appealed against the recommendations made in Dr Bertucen's report. In part, Mr Robinson's appeal was based on his assertion that he could not return to work with the NSW Police Force in any capacity, contrary to Dr Bertucen's suggestion. 21On 3 March 2011 the respondent's Injury Management Advisor dealing with Mr Robinson's case, a Ms Angus, spoke to Dr Rust. Dr Rust said that he agreed with Dr Bertucen's recommendations, and said that Mr Robinson could commence a return to work plan if it did not involve a return to his substantive command. 22On that same day, 3 March 2011, following her conversation with Dr Rust, Ms Angus wrote to Mr Robinson saying that both return to work in another position and medical retirement were being considered, based on Dr Rust's advice that continuing employment might be possible and Dr Bertucen's report. She suggested that a case conference involving Dr Rust be organised. 23Within two hours of receiving that communication from Ms Angus, Mr Robinson wrote to the respondent at some length. That letter was a detailed argument to the effect that he could not return to work with the respondent in any capacity. It comprehensively refuted any suggestion that work in an administrative capacity, for example, might be open; it advanced a number of matters that, if accepted, effectively meant that only discharge was an available option. Mr Robinson did not, he said, wish to participate in any case conference. 24In that letter Mr Robinson expressly identified the symptoms he was suffering as being related to PTSD arising from his police duties over his whole career. 25Later on the same day, 3 March 2011, Mr Robinson wrote to Ms Angus again saying that Superintendent Dengate's actions which Mr Robinson characterised as bullying, intimidation and harassment, had 're-exacerbated' his PTSD creating another psychological illness. 26Shortly after this, and after a further consultation with Mr Robinson, Dr Rust advised the Respondent that Mr Robinson was unfit for work in any capacity inside and outside the NSW Police Force, that he, Dr Rust, did not support a return to work within the NSW Police Force and that it was in everyone's best interest for Mr Robinson to be medically discharged. 27On 30 March 2011, Mr Robinson's appeal against the recommendations made in Dr Bertucen's report was disallowed. On the same day, Mr Robinson was advised that his injury management file had been referred to the respondent's Fitness to Continue Unit ('FTCU') for consideration of medical discharge. 28On 26 May 2011, the respondent's Medical Discharge Review Panel ('MDRP') recommended that Mr Robinson be medically discharged. 29On 27 May 2011, Mr Robinson provided the respondent with executed copies of his medical discharge documents. 30The respondent was also provided with a certificate prepared by Ms Sharman dated 27 May 2011 for purposes related to the Australian Taxation Office stating that: "because of ill-health, it is unlikely that Glen Robinson can ever be gainfully employed in capacity for which he is reasonably qualified because of education, experience or training" 31The respondent was also provided with a similar certificate prepared by Dr Rust dated 2 June 2011 stating that "it is unlikely that Glen Robinson can ever be gainfully employed in capacity for which he is reasonably qualified through experience or training" 32On 2 June 2011, Mr Robinson was medically retired from the NSW Police Force pursuant to section 72A of the Police Act. 33As a consequence of being medically retired, he received a lump sum payment, that being a partial and permanent disability benefit of $545,067 gross pursuant to the D & D Award. After tax the net payment amounted to some $487,000. 34In order to receive the payment that he did, Mr Robinson had to satisfy certain criteria. They included that he had to be found to be suffering from a "permanent physical or mental disability" and that, as a result, he was "permanently unable, by reason of that disability, to perform the duties that the Police Officer was required to perform before the police officer suffered the disability." 35In January 2012 Mr Robinson applied for work as a cabin crew member with Jetstar. He was accepted and commenced employment in early April 2012. 36On 27 February 2012, in the context of the settlement of his claim for disability discrimination that Mr Robinson had brought, he received a letter from Superintendent Dengate in which that officer, referring to Mr Robinson's allegations of harassment, said 'I acknowledge that you feel aggrieved and I sincerely regret that you feel that way.' 37On 5 April 2012, Dr Rust prepared a WorkCover Medical Certificate certifying that Mr Robinson "is fit for pre-injury duties from Thursday 5 April 2012". This was not provided to the respondent at that time. 38On 29 August 2012, Ms Sharman prepared a report stating that Mr Robinson "has fully recovered". Referring to the letter dated 27 February 2012 from Superintendent Dengate, she expressed the view that 'Mr Robinson's mood and overall functioning improved dramatically once the bullying issue was satisfactorily resolved'. 39 On 4 October 2012 Dr Rust prepared a certificate that provided: "This is to certify that I believe Mr Glen B Robinson will be fit to return to duties in the NSW Police Force in his previous or similar position as a general duties team leader, Sergeant. He was previously medically discharged in June 2011 on the grounds of a medical condition (Adjustment disorder with anxiety). He has had extensive treatment for this condition by a psychologist and his symptoms have resolved. I am confident he is able to return to full duties since the causative issues have also been dealt with." 40On 18 October 2012 Mr Robinson wrote to the Commissioner of Police seeking reinstatement to his former position as a Sergeant, Team Leader at Eastern Beaches LAC under s 241 of the WC Act, referring, inter alia, to the fact that he had been certified as fit for pre-injury duties, and saying that he was "fully recovered and fit to return to my employment as a police officer". 41On 21 November 2012 the respondent's workers compensation insurer asked Mr Robinson to confirm his then most recent medical certificate was accurate and that he was fit for pre-injury duties because "this will have implications for your ongoing weekly benefits which are being paid to you". The insurer advised Mr Robinson that "if it is confirmed that you are deemed fit for pre-injury duties, you will no longer be entitled to any benefits under the workers compensation scheme". 42Mr Robinson confirmed he was certified as fit for pre-injury duties by way of email dated 22 November 2012 and further that "I am looking to return to the Police Force". 43 On and from 3 December 2012 the respondent ceased paying benefits under the workers compensation legislation, on the basis that Mr Robinson was fit for his pre-injury duties. 44Following his letter in October 2012 to the respondent requesting reinstatement, Mr Robinson communicated with the respondent a number of times and received a number of communications from the respondent. 45On 21 March 2013 the respondent wrote to Mr Robinson saying 'If you satisfactorily meet the requirements for reinstatement, the NSW Police Force will reinstate you to the duties and rank at the time of your discharge.' 46This did not occur. At the same time, the respondent did not indicate that there was opposition to Mr Robinson being reinstated. 47On 30 April 2013, no step having been taken to reinstate him since October 2012 despite what had been said in the respondent's communications to him, Mr Robinson commenced these proceedings. 48The matter came before the Commission on 10 May 2013. On that day it became apparent that notwithstanding what had been held out to Mr Robinson, the respondent in fact intended to oppose any reinstatement. At that time it was proposed by the respondent that a question be referred to a full bench of this Commission. More time was taken while that was considered but ultimately that proposal fell away. It caused, however, a delay which meant that the substantive matter did not begin to be heard until 30 September 2013. 49In the course of the proceedings on 10 May 2013 I made a number of comments to senior counsel for the Respondent which were intended to convey, and I hope were understood to convey, sharp disapproval of the length of time that the Respondent had taken to form a view that it would oppose Mr Robinson's reinstatement, doing, so far as I could ascertain nothing at all, including failing to obtain early and relevant advice, while at the same time holding out to Mr Robinson that it would reinstate him subject to a medical assessment. The Commission's critical view of that course of conduct by the Respondent has not altered; it does not, however, touch on or influence my view of the matters for determination here. The question before the Commission 50As I say, the facts set out above are essentially uncontroversial. On one view, the matter is a very simple one; given that Mr Robinson is conceded to be an injured worker within the meaning of part 8 of the WC Act, is the Commission satisfied that Mr Robinson is 'fit' for work within the meaning of s.243 of the WC Act? 51The respondent, however, submits that before that question may even be considered by the Commission two things stand in its way. The first issue - whether Mr Robinson was dismissed 52As I note above, it is not in contest that Mr Robinson is an 'injured worker' within the meaning of the WC Act. 53However, the respondent advances that the Commission's jurisdiction in respect of the application he has made is not enlivened because Mr Robinson was not 'dismissed' within the meaning of Part 8 of that Act. 54The respondent correctly points out that the Commission's power to reinstate an injured worker pursuant to part 8 of the WC Act is not enlivened unless the injured worker has been dismissed, as only an injured worker who has been 'dismissed' can make an application; WC Act s.241(1), s.243(4), s.244(1) and (2), s.247, s.248(1), (3) and (4) and s.249. 55The respondent submitted that 'dismissal' both generally and in this context means a termination of employment at the initiative of the employer without the consent of the employee, calling in aid Smith v Director-General of School Education (1993) 31 NSWLR 349 at 366, and State of Victoria v Australian Teachers Union (1993) 49 IR 149 at 157, 160 and 163, that consent being able to be implied as well as expressly given. A dismissal, it was said, does not mean a termination by consent of the parties nor a termination effected by operation of law. 56It was then said that Mr Robinson was not 'dismissed' within the meaning of the WC Act on three bases. 57They were, first, that Mr Robinson consented to the medical discharge, so that the cessation of his employment was itself simply by consent, and accordingly not a dismissal, on the basis of the authorities cited above. 58Second, it was said that in any event the respondent had no option other than to exercise the discretion under s.72A of the Police Act in favour of medical discharge once the medical evidence established that an employee had satisfied the circumstances for medical discharge. 59Third, it was put that where the employer and employee acted on the consensual basis that the employee is unfit to discharge the duties of the employee's position, the employer had, again, no option other than to exercise its discretion in favour of medical discharge in order to conform with the principles of natural justice and in order to exercise the power under s.72A for bona fide purposes and reasonably. 60The asserted lack of any option under the statute other than to bring the employment to an end was said to mean that the employment ceased by operation of law, not by any action of the employer to bring it to an end. .The provisions of the Police Act 61These propositions must be examined in the context of the provisions of section 72A of the Police Act, which is the source of power for the retirement of non-executive police officers based on medical grounds. That section provides: 72A Incapable non-executive police officer may be retired If: (a) a non-executive police officer is found on medical grounds to be unfit to discharge or incapable of discharging the duties of the officer's position, and (b) the officer's unfitness or incapacity: (i) appears likely to be of a permanent nature, and (ii) has not arisen from actual misconduct on the part of the officer, or from causes within the officer's control, the Commissioner may cause the officer to be retired. 62In my view it is sufficiently apparent from the words of s.72A themselves that the proposition that Mr Robinson was not dismissed within the meaning of Part 8 of the WC Act cannot be accepted. 63 S.72A of the Police Act provides not only that the Commissioner has a particular discretion, conferred on him by the word 'may'; it sets out in terms what it is that the Commissioner may do, that is, he may cause an officer to be retired. 64'To be retired' is a construction involving a transitive verb. It speaks of an action to be performed with respect to someone, in this case an officer, by the Commissioner. 65The act 'to retire' is, as counsel for Mr Robinson submitted, correctly understood in the context of s 72A as meaning: "To remove from active service or the usual field of activity, as an officer in the Army or the Navy ..." "To compel (a person) to leave active military service. Later also: to remove (a person) from office or employment, esp. before the usual retirement age" 66That means that the Commissioner when acting under s.72A takes an active step to bring the employment to an end. The Commissioner 'brings about' the end of the employment: NSW Technical and Further Education Commission v Kerrison [2004] NSWIRComm 269 at [48]. The employee may not wish to contest this decision; indeed, might even have asked that it be made, but the sole causative force bringing the employment to an end is the action of the Commissioner. 67No matter what the medical evidence, no matter what the parties' agreed view of the situation, and indeed no matter however much in this case Mr Robinson may have been desirous of being medically retired, and even pressed for such an outcome, a matter to which I return below, Mr Robinson could not on any basis bring about his medical retirement himself, or even be a party to the decision to bring the employment to an end. The decision was not consensual. Only the Commissioner could, and did, bring the employment to an end by means of medical retirement. 68Accordingly, the end of the employment therefore properly is characterised as a dismissal. 69On this approach, it matters not whether there was in fact an operative discretion, because the cessation of the employment was only able to be effected pursuant to the statutory provision by the Commissioner. 70But even without that, the proposition that the Commissioner had no discretion to exercise in this case is, in my view, not correct. 71It was put that the satisfaction of the criteria in subss(a) and (b) of s.72A determined of themselves that the Commissioner must act only in one way, to cause the officer to be retired. 72On the plain words of s.72A that is not so. Such an approach improperly conflates the actual structure of the section. The satisfaction of the matters set out at subss(a) and (b) are only sufficient to bring the matter to the Commissioner's attention; they do not conclude the issue. Even if the requirements of subss(a) and (b) are met, the Commissioner must necessarily decide whether or not he will do what the Act provides that he 'may' do. 73The decision in Kerrison supra, which was called in aid on this point by the respondent, does not hold otherwise. 74In that case, which considered relevantly identical provisions in the Technical and Further Education Commission Act 1990, the Full Commission in Court Session held: In our opinion, without straining the ordinary meaning of "may cause", these words mean "to bring about". The discretion to take steps to bring about the medical retirement of a particular employee arises once the conditions in ss20(a) and (b) are met. Given that the basis for the exercise of the discretion is a medical opinion, it is a discretion one would expect would normally be exercised in favour of retirement if the pre-conditions in ss(a) and (b) of s20 have been satisfied. (at [48] - [49]) 75That one would normally expect the discretion to be exercised in a certain way if the preconditions for its exercise are met does not at all mean that there is no discretion if they are in fact met, or even that it would necessarily be unreasonable in a given case to exercise the discretion otherwise. Were that to be the intended effect of the statute the parliament may have been expected to so provide, rather than granting an unfettered discretion by the plain words of the statute. 76As to the proposition that there was a consensual position adopted which deprived the Commissioner of a real or operative discretion, it is defeated for the reason I set out above. It is in any event defeated for reason that for the powers under s.72A validly to be exercised there must be a finding on medical grounds, as provided by subs.72A(a). That requirement could not be satisfied by an assumption of a consensual position absent a medical basis for the finding. If a consensual position as to fitness were all there was, the necessary statutory precondition - that the officer is found on medical grounds - would not be satisfied. 77The respondent called in aid the decision of the Commission in Norville v NSW Fire Brigades [2007] NSWIRComm 45, an application brought under the then-section 93 of the Industrial Relations Act 1996 ('the IR Act'). In that matter Sams DP held that the applicant was not an injured worker within the meaning of the relevant statutory provisions. Having so held, the learned Deputy President also stated (at [53]): "... a medical retirement is not a dismissal, either at law, or how that term is generally understood according to ordinary English usage." 78It is not clear to me that this statement forms part of the ratio of the decision. If it does, I am obliged to say that I respectfully disagree with the learned Deputy President on this point. 79In my view the proposition that the termination of Mr Robinson's employment was not a dismissal for reason that he consented to his medical retirement cannot be sustained for the reasons that the arguments regarding discretion, which I have addressed above, cannot be sustained. However, it cannot succeed for another reason. 80It was said that Mr Robinson consented to the medical discharge by bringing relevant medical evidence, by rejecting opportunities to return to work, by claiming throughout the process that he was incapable of returning to work, by actively participating in and cooperating with the medical discharge process, and by collaborating with the respondent to bring about the finalisation of his employment so as to receive a substantial death and disability payment under the D&D Award. 81I accept that Mr Robinson actively pressed for medical discharge. His letter of 3 March 2011, which was a response to the respondent's suggestion that based on Dr Bertucen's report and Dr Rust's then opinion, redeployment might be an option as well as discharge, was in my view directed, and eloquently directed, toward establishing that only medical discharge was an appropriate outcome. That is consistent with what Mr Robinson told his treating psychologist at and indeed before that time, according to her notes. 82I accept too that Mr Robinson, as the Respondent put it, took active steps to give effect to the decision to enable him to receive the death and disability benefit. 83I do not however accept that this active assistance and indeed pressing for a medical discharge was 'consent' in the sense that it vitiated any decision the employer had to make under the statute or rendered the employer's decision a non-decision. 84However much Mr Robinson may have wished to be medically discharged, and whatever he might have done to provide information and encouragement toward the process, even to the extent of arguing his case, he had no control at all over the recommendation put by the respondent's FTCU to the MDRP, nor did he have any input into or control over the recommendation that the MDRP made to the Commissioner. Either recommendation might have been, for all Mr Robinson knew, a recommendation that he not be discharged. 85His consent or otherwise was not a determining factor. The decision was out of his hands. 86And it was out of his hands for a further reason made clear by the words of s.72A of the Police Act to which I have earlier referred, that is that the Commissioner was required to exercise a discretion bestowed by the use of the word 'may' in s.72A. Mr Robinson patently could not and did not exercise the statutory power to cause him to be retired which only the Commissioner could, and did, exercise. 87Mr Robinson was, it is not in contest, an injured worker. In my view he was dismissed when he was medically retired. In my view this is an application properly brought under Part 8 of the WC Act. Estoppel by convention 88The Respondent also advanced the submission that an estoppel operates to prevent Mr Robinson from denying that he is permanently unfit or permanently incapacitated from working as a police officer. 89The estoppel was expressly said to be an estoppel by convention. 90The estoppel is said to lie on the basis that the applicant and respondent conducted their relations with each other on the agreed or assumed basis that the applicant had been permanently unable to perform the role of a police officer upon which the respondent acted in granting the medical discharge and the making of the death and disability benefit that was made to Mr Robinson. 91In an earlier interlocutory decision 1 I held that no estoppel by convention operated so as to prevent the respondent asserting, by way of leading evidence, that Mr Robinson was unfit for duty. That does not of itself mean that no estoppel by convention as now argued by the respondent lies.