This is an Application for Leave to Appeal and Appeal brought by Senior Constable ("SC") Bojan Lezaja against the decision of Commissioner Murphy in Chircop v Commissioner of Police; Lezaja v Commissioner of Police [2022] NSWIRComm 1089 ("Decision").
The Full Bench has determined to refuse leave to appeal. Our reasons follow.
[2]
Background
The facts giving rise to the proceedings culminating in the Decision were not significantly in dispute. We acknowledge that the following summary of the relevant background draws in part on that contained in the Outline of Submissions filed on behalf of the Commissioner of Police ("Police Commissioner").
SC Lezaja is employed as a Police Prosecutor in the Police Prosecution Command of the New South Wales Police Force.
On 30 August 2021, (then) Deputy Commissioner Karen Webb published a direction to all members of the NSW Police Force ("Webb Direction"), which stated in part:
"As you are aware, the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (Delta PHO) contains restrictions on 'authorised workers' who are not vaccinated (commencing 6 September 2021) where they leave an area of concern.
From 6 September 2021, an authorised worker who is at least 16 years old must not leave the area of concern for work unless the worker has had at least 1 dose of a COVID-19 vaccine or has been issued with a medical contraindication certificate. …
…
From 6 September 2021, NSWPF officers/employees who reside in an area of concern, that have not had at least 1 dose of a COVID-19 vaccination/have not been issued with a medical contraindication certificate will not be able to attend the workplace. These officers/employees will be required to nominate a form of accrued leave (e.g. annual/extended leave). COVID Special Leave is not available in these circumstances."
SC Lezaja resided in an 'area of concern' (Cumberland LGA), and ordinarily performed duties as a Police Prosecutor at Mt Druitt Local Court, which falls within a different 'area of concern' (Blacktown LGA). Between 30 August 2021 and 1 November 2021, he was not vaccinated against COVID-19, nor did he have a medical contraindication certificate.
In a number of emails to his supervisors between 31 August 2021 and 2 September 2021, SC Lezaja stated that he did not wish to take annual leave or extended leave. He stated that he was "ready, willing and able" to work from home or from any other location within the Cumberland LGA, including the Granville Police Station or the Merrylands Police Station.
On 3 September 2021, Superintendent ("Supt") Kirsty Heyward, the Commander of the Police Prosecutions Command, sent an email to SC Lezaja ("Heyward Email"). The Heyward Email is reproduced in its entirety in the Decision. It is not necessary that we do so. In short, the Heyward Email reiterated the substance of the Webb Direction; directed SC Lezaja to comply with the Webb Direction, to nominate a form of leave to be taken, and to respond to acknowledge receipt of the direction in the Heyward Email; and informed SC Lezaja that a failure to comply with the direction "may result in managerial action/consequences".
On the same day, SC Lezaja sent an email to Supt Heyward, in which he stated that in compliance with the direction contained in the Heyward Email, he would not be attending any place of work. He further stated that he was "nominating annual leave" but he was "not nominating it willingly or freely".
On 7 September 2021 Commissioner Michael Fuller issued a direction to all members of the NSW Police Force. The effect of the direction was that, subject to limited exceptions, a member of the Force could not perform any duties after 30 September 2021 unless they had received at least one dose of a COVID-19 vaccine, and after 30 November 2021 unless they had received at least two doses of such a vaccine ("Vaccine Mandate").
On 14 September 2021, SC Lezaja purported to notify the Industrial Registrar of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996. SC Lezaja withdrew that notification in proceedings before Commissioner Murphy on 21 September 2021, on the basis that he did not have standing to notify an industrial dispute under s 130.
On 24 September 2021, SC Lezaja filed a Notice of Appeal - Public Sector Discipline, purportedly pursuant to Ch 2 Pt 7 of the Industrial Relations Act ("Application"). The Application identified the "type of discipline decision being appealed against" as "Fine" and "Suspension". Under the heading "Reasons for Appeal" it included the following:
"On 3rd September 2021, I was advised as of 6th September 2021 that I was not to attend my work place or any other work place unless I have received one dose of COVID-19 Vaccination, or have been issued with a contraindication certificate, and to nominate a form of leave (accrued or LWOP) to be taken.
The decision to stand me down was made arbitrarily without valid cause, preventing me from earning a wage or salary. My entitlements are not salary or wages, therefore not income. In absence of me using my entitlement being my annual leave, I would not be paid. Considering I have been directed not to attend any work place and not being paid, I am effectively suspended without pay.
…
I have been coerced into nominating leave under duress by the virtue of clause 8 of Police Regulation 2015 and threatened with potential managerial consequences if I were not to nominate leave. The leave I nominated was done unwillingly, reluctantly and not freely."
(Reproduced verbatim)
The Application came before Commissioner Murphy for mention on 1 October 2021. At that time there was a discussion as to whether police officers could invoke Ch 2 Pt 7 of the Industrial Relations Act. It was agreed by the parties that Ch 2 Pt 7 was not available to police officers. Commissioner Murphy proposed, and the parties agreed, that the Application would be treated as an application under s 174 of the Police Act 1990.
To avoid confusion, we observe that the proceedings below - as the title of the Decision suggests - involved two applications which were heard together. One was that brought by SC Lezaja, and the other being a similar application brought by SC Jared Chircop. This will explain references to "applicants" and "Applications" in extracts from the Decision and in transcripts of the proceedings below to which we will refer.
On or around 1 November 2021, SC Lezaja was served with a 'show cause notice' pursuant to s 181D(3)(a) of the Police Act, alleging he had engaged in misconduct by refusing to comply with the Vaccine Mandate.
On 1 November 2021, SC Lezaja was inoculated with the first dose of a COVID-19 vaccine. He returned to duties on 3 November 2021.
On 7 February 2022, the Police Commissioner made a finding that SC Lezaja had engaged in misconduct by failing to comply with the Vaccine Mandate. She made an order for the recording of an adverse finding on SC Lezaja's file, being "nonreviewable action under s 173(2) and Schedule 1 of the Police Act 1990" ("173 Order").
The Application was heard by Commissioner Murphy on 7 April 2022. The Decision was handed down on 21 October 2022.
[3]
The case below
We have referred above to extracts from the Application, which described the nature of SC Lezaja's grievance. During the mention before Commissioner Murphy on 1 October 2021, there was the following exchange (Tcpt, 1 October 2021 pp 4(50)-5(26); Appeal Book pp 65-66):
"COMMISSIONER: All right but isn't the position this, from both applicants, that the claim is that the action of directing them not to attend for work without a vaccination certificate or other indication, that direction constitutes an order under section 173(2)(d), any other action other than dismissal or the imposition of a fine that the Commissioner considers appropriate? Isn't that the argument?
APPELLANT LEZAJA: Yes, it is, Commissioner.
…
ROBERTS: I understand that's the argument. I'm not sure the Commissioner would agree that there has been such an order.
…
COMMISSIONER: The issue, as I see it, is whether or not what has occurred with these two officers comes within 173(2)(d). That's what the argument's about isn't it?
ROBERTS: Yes."
The reference in this passage to "Roberts" is to Nathan Roberts, a solicitor who appeared for the Police Commissioner.
This extract and the balance of the transcript of 1 October 2021 reveal that from the first mention of the proceedings, the Police Commissioner was calling into question the jurisdiction of the Commission to determine the Application. The Police Commissioner contended that the Application did not disclose an order within the meaning of s 173(2) of the Police Act, with the result that there was no basis on which SC Lezaja could invoke the Commission's jurisdiction under s 174 of that Act.
To provide context, ss 173 and 174 of the Police Act are relevantly in these terms:
173 Commissioner may take action with respect to police officer's misconduct or unsatisfactory performance
(1) In this section -
non-reviewable action means action referred to in Schedule 1.
reviewable action means action referred to in subsection (2), other than non-reviewable action.
(2) The Commissioner may order that the following action be taken with respect to a police officer who engages in misconduct -
…
(d) any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate.
174 Review generally
(1) A police officer in respect of whom an order for reviewable action is made under section 173 may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the order is beyond power or is harsh, unreasonable or unjust.
…
The submissions filed by the parties in advance of the hearing of the Application were in large part directed to the question of the Commission's jurisdiction. At [17]-[23] of the Decision, Commissioner Murphy summarised the case presented by SC Lezaja. In our view that summary was accurate and adequate. We will confine ourselves to reproducing the following extracts:
"19. In their written submissions, the applicants contended that, as a result of their failure to promptly nominate a form of leave to be taken after the publication of the Webb direction on 30 August 2021, Superintendent Heyward commenced 'Management Action' and the Heyward email constituted 'notice of an "order" to the Applicants' that 'arises from perceived misconduct or unsatisfactory performance by the Applicants' and is, therefore, 'reviewable action' within the meaning of s 173 of the Police Act.
…
21. The applicants point to the 'significant financial loss' they have suffered 'as a direct consequence of the Management Action taken against them by Superintendent HEYWARD' being the loss of their accrued annual leave which would otherwise have been available to be paid to them on termination of employment. This financial loss caused 'the relevant Management Action to fall within the definition of Reviewable Action'.
22. The written submissions of the applicants then proceeded on the basis that the 'Management Action' was 'reviewable action' within the meaning of s 173 of the Police Act, to contend that it was beyond power; was taken with or without appropriate delegation; was non-compliant with the provisions of s 173 and, therefore, 'unlawful in nature'; was non-compliant with certain provisions of the Crown Employees (Police Officers - 2017) Award; and was, even if not beyond power, at the very least, harsh, unreasonable or unjust. Because of the determination I have reached in this matter, it is unnecessary for me to deal with these contentions in this decision and I do not propose to do so."
(Emphasis in original)
Commissioner Murphy summarised the Police Commissioner's case in these terms:
"31. … The primary submission of the respondent is that the Commission lacks jurisdiction in these proceedings because the applicants have not been subject to any order for reviewable action within the meaning of s 173 of the Police Act which is necessary to enliven the Commission's jurisdiction under s 174. The Heyward email cannot be characterised as an order for reviewable action made pursuant to s 173."
Consistent with the cases advanced by the parties, Commissioner Murphy described the question for determination in these terms:
"8. The question to be determined was whether or not the direction that the applicants not attend the workplace together the requirement that they utilise accrued leave constitutes 'reviewable action' as defined in s 173 of the Police Act which may then be the subject of an application to this Commission brought pursuant to s 174 for 'a review of the order on the ground that the order is beyond power or is harsh, unreasonable or unjust'. This decision determines that question."
[4]
The Decision
In the Decision, Commissioner Murphy examined the contents of the Webb Direction. He concluded:
"42. On any view, neither of these elements of the Webb direction could constitute an order for reviewable action, especially given the wide dissemination of the Webb direction. Further, it is not part of the applicants' case that the Webb direction is an order for reviewable action."
The Commissioner next considered the terms of the Heyward Email. He observed at [45] that the only way that "the applicants" could succeed was for the Heyward Email to be regarded as falling within s 173(2)(d) of the Police Act. At [46]-[50] the Commissioner examined the several aspects of the Heyward Email. He concluded:
"51. The Heyward email, whether considered as a whole or broken down into its different parts, does not constitute an order for reviewable action with respect to a police officer who engages in misconduct. It follows that [there] is no order made pursuant to s 173 of the Police Act before the Commission. As a consequence, the Commission lacks the jurisdiction to deal with the Applications under s 174."
Commissioner Murphy ordered that the Application be dismissed.
[5]
The Appeal
SC Lezaja seeks to appeal the Decision. On 10 November 2022 he filed an Application for Leave to Appeal and Appeal pursuant to ss 187 and 188 of the Industrial Relations Act.
The Application for Leave to Appeal and Appeal identifies two matters appealed against. The first is Commissioner Murphy's finding that there was no order made pursuant to s 173 of the Police Act before the Commission. The second is the Commissioner's finding at [42] of the Decision that SC Lezaja "never challenged the Webb direction as an order for reviewable action".
The Application for Leave to Appeal and Appeal contains the following:
"H. Grounds of the appeal are:
(a) The Commissioner erred in concluding the Appellant never challenged the 173 Order by Commissioner Karen Webb as an order for reviewable action, particularly when the order was admitted into evidence without objection.
(b) The Commissioner erred by never considering or assessing the 173 order by Commissioner Karen Webb.
(c) The Commissioner erred by never drawing a nexis between the Heyward direction and the ultimately the Webbs direction's which formed the sustained finding under 173, despite the applicant making submissions on record at the day of hearing of this."
(Reproduced verbatim)
[6]
Leave to appeal
Section 188 of the Industrial Relations Act provides that an appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.
In Fraser v Commissioner of Fire and Rescue NSW [2022] NSWIRComm 1026 the Full Bench observed:
"18. The applicable principles in deciding whether to grant leave are well settled and were summarised in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 at [10]-[11]. In summary:
(1) an appeal under the Act is an appeal in the strict sense, and the Full Bench will only intervene to correct error;
(2) leave will not be lightly or automatically granted, unless substantial issues of principle or law are raised, or there are otherwise wider implications for the jurisprudence of the Commission or the proper administration of justice; and
(3) where an appeal primarily challenges finding of fact leave will rarely be granted."
The Application for Leave to Appeal and Appeal included the following:
"G. Reasons why leave to appeal should be granted:
(a) It is in the public interest that the Full Bench determine whether a Police Officer who directed to stand down (or suspended) without pay meets the definition of s173(2)(d).
(b) It is in the public interest that the Full Bench determine whether a Police Officer can be directed to stand down without pay (be paid a wage or salary, rather than by their own entitlements) when they have not be criminally charged or the subject of any criminal allegation.
(c) It is in the public interest that the Full Bench determine whether the direction not to attend the workplace can be done without paying the employee for complying with that direction.
(d) It is in the public interest that the Full Bench determine whether the direction can contravene the Award.
(e) It is in the public interest that the Full Bench determine whether a Police Officer can have an 'adverse finding recorded' for allegations of criminal matters, arbitrarily determined by the Commissioner of Police, which were never tested in criminal jurisdiction, as this falls foul of separation of powers.
(f) It is in the public interest that the Full Bench determine whether $19,202 in lost wages (304 hours of annual leave and long service leave) falls under s172(2)(d) rather than just a 'adverse finding recorded under schedule 1 in the 173 order."
(Reproduced verbatim)
[7]
Consideration
The grounds of appeal set out in the Application for Leave to Appeal and Appeal rest in large part on the 173 Order. The substantive challenge is the alleged failure by Commissioner Murphy to consider the 173 Order and, by inference, to find that it was an order for "reviewable action" within the meaning of ss 173(1) and 173(2)(d) of the Police Act. There is an ancillary challenge that the Commissioner erred in stating that SC Lezaja "had never challenged the 173 Order".
This latter challenge, reflected in ground (a) of the appeal, can be disposed of quickly. It rests on a misinterpretation of Commissioner Murphy's statement at [42] of the Decision that it was "not part of the applicants' case that the Webb direction is an order for reviewable action". At [5] of the Decision the Commissioner had defined the term "Webb direction" by reference to the direction published by then Deputy Commissioner Webb on 30 August 2021, to which we have already referred (and similarly defined as the Webb Direction). Commissioner Murphy made no reference in the Decision to the 173 Order.
This leads to the more substantive challenge to the Decision, which is reflected in grounds (b) and (c) of the appeal.
There is no dispute that the 173 Order was in evidence before Commissioner Murphy. During his oral submissions at the hearing on 7 April 2022, SC Lezaja called into question the legitimacy of the 173 Order and the Police Commissioner's motivations in issuing it at the time she did, namely 7 February 2022.
As we have outlined, the Application was filed on 24 September 2021. A question arose early in the proceedings as to whether the Heyward Email was "reviewable action" within the meaning of s 173 of the Police Act, so as to enliven the Commission's jurisdiction under s 174. That was the question identified and addressed by Commissioner Murphy in the Decision.
In his oral submissions in the proceedings below, SC Lezaja took the Commissioner to the 'show cause' notice issued by Commissioner Fuller on 1 November 2021. The Commissioner interrupted Mr Lezaja's submissions regarding the contents of the notice and had the following exchange with him (Tcpt, 7 April 2022, p 46(31-34); Appeal Book p 137):
"COMMISSIONER: Is that what's in front of me, though? These are matters that have occurred subsequent to what I'm dealing with.
APPLICANT LEZAJA: Yes but I'll get to the relevance of that."
We do not find subsequently in the transcript an explanation as to how the 173 Order is relevant to the determination of the question before the Commissioner.
SC Lezaja made submissions before Commissioner Murphy as to whether the 173 Order was properly issued. He impugned it on a number of bases, including that he was not guilty of the misconduct found against him as set out in the 173 Order. However, there is no evidence that SC Lezaja sought to amend the Application to include a challenge to the 173 Order or otherwise applied for a review of it.
On the case presented by SC Lezaja, Commissioner Murphy was not required to "consider or assess" the 173 Order. The issuing of that order in February 2022 had no bearing on the characterisation of the Heyward Email. To the extent that SC Lezaja asserts error in the failure of the Commissioner to find that the 173 Order was reviewable action, it suffices to say that the Commissioner cannot be said to have erred in failing to answer a question that was not put to him.
For these reasons, it is our view that SC Lezaja advances on appeal a case that was not put before Commissioner Murphy. That argues against the grant of leave to appeal.
We have considered the reasons as to why leave to appeal should be granted set out in Part G of the Application for Leave to Appeal and Appeal. Those matters might arise for consideration if the Commission were seized of jurisdiction in the matter. No error has been demonstrated in the determination of Commissioner Murphy at [51] of the Decision that "the Commission lacks the jurisdiction to deal with the Applications under section 174". It follows, consistent with the position taken by the Commissioner in [22] of the Decision, that the matters on which SC Lezaja relies do not require determination. They do not support the grant of leave to appeal.
[8]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 07 March 2023