Little v Commissioner of Police - [2002] NSWIRComm 52 - NSWIRComm 2002 case summary — Zoe

NSWNSWIRComm

Little v Commissioner of Police

[2002] NSWIRComm 52

Industrial Relations Commission (NSW)|2002-07-01|Before: Wright J, Walton J, Boland J, Boulton J, Mr J, Peterson J

View original source

At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2002-07-01

Before

Wright J, Walton J, Boland J, Boulton J, Mr J

Source

Original judgment source is linked above.

Judgment (131 paragraphs)

[1]

CITATION : Little v Commissioner of Police (No.2) [2002] NSWIRComm 52 APPELLANT: Geoffrey Bernard William Little PARTIES : RESPONDENT: Commissioner of Police FILE NUMBER: IRC 2244 of 2001 CORAM: Wright J President; Walton J Vice-President; Boland J CATCHWORDS : Appeal - Application for leave to appeal and appeal - Application under s181E of the Police Service Act 1990 - Primary reasons for dismissal from service related to incompetence as a supervisor, inappropriate dealings with female colleagues, inappropriate accessing of COPS computer database - Appellant over 50 years of age and suffered a very significant reduction in superannuation payments as the result of the dismissal - Principles for determination of review proceedings under s181E of Police Service Act 1990 - Legislative scheme - Police Service Act 1990 imports the law and principles established under Part 6 of Chapter 2 of the Industrial Relations Act 1996 into review proceedings - Exclusions in s181G - Appellant formerly a sergeant in the NSW Police Service - Errors of law and principle - Failure in applying different test to those in unfair dismissal matters - Failure to evaluate consequences of dismissal - Inappropriate emphasis on justification for dismissal - Requirements of s181F - Error of principle - Procedural unfairness - Removal from service harsh - Undertaking given to retire upon reaching 55 years of age if reinstated - Commission able to receive such undertaking - Applicable to consideration of remedy - Reinstatement or re-employment primary remedy - Monetary order only where reinstatement or re-employment impracticable - Leave to appeal granted - Decision at first instance set aside - Reinstatement ordered on condition appellant conform to undertaking Anti-Discrimination Act 1977 s22A LEGISLATION CITED : Industrial Relations Act 1996 s83 s84 s85 s86 s87 s88 s89 s187 s191 Police Service Act 1990 s181D s181E s181F s181G s181J Bartlett v Commissioner of Police (1998) 87 IR 436 Box Valley Ltd v Price (2000) 97 IR 484 Hollingsworth v Commissioner of Police (1999) 88 IR 282 House v King (1936) 55 CLR 499 Knowles v Anglican Property Trust (No.2) (1999) 95 IR 380 Little v Commissioner of Police [2001] NSWIRComm 9 CASES CITED : Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 Newton v Commissioner of Police (1999) 87 IR 66 Perkins v Grace Worldwide (Aust) Pty Limited (1997) 72 IR 186 Police Service of New South Wales v Batton (2000) 98 IR 154 Toby v Container Terminals Australia Ltd (unreported, Australian Industrial Relations Commission, Boulton J, Marsh SDP and Jones C, No. 28825/00, 24.7.2000) Van Huisstede v Commissioner of Police (2000) 98 IR 57 Wells v Commissioner of Police (2000) 100 IR 106 Wilson v Department of Education & Training (2000) 100 IR 1 HEARING DATES: 09/05/2001 DATE OF JUDGMENT: 04/29/2002

[9]

Relevant Statutory Provisions 2 The relevant provisions of the Police Service Act for this matter are sections 181D to 181G respectively. Those provisions are in the following terms: 181D. Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from the Police Service if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. (2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister. (3) Before making an order under this section, the Commissioner: (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and (b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the police officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the Police Service. (5) The removal takes effect when the order is made. (6) (Repealed) (7) Except as provided by Division 1C: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, "tribunal" means a court, tribunal or administrative review body, and (without limitation) includes GREAT and the Industrial Relations Commission. (7A) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action. (7B) Nothing in Division 1C limits or otherwise affects the Commissioner's power to vary or revoke an order in force under this section. (8) For the purposes of this Act, removal of a police officer from the Police Service under this section has the same effect as if the police officer had resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from the Police Service. (9) The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the police officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action. 181E. Review generally (1) A police officer who is removed from the Police Service by an order under section 181D 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 removal is harsh, unreasonable or unjust. (2) An application under this section does not operate to stay the operation of the order in respect of which it is made. (3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1). 181F. Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the Police Service, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the Police Service is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the Police Service, and the fact that the Commissioner made the order pursuant to section 181D (1)). 181G. Application of Industrial Relations Act 1996 to reviews (1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications: (a) section 83 (Application of Part) is to be read as if subsection (3) were omitted, (b) section 85 (Time for making applications) is to be read: (i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and (ii) as if subsection (3) were omitted, (c) section 86 (Conciliation of applications) is to be read as if it provided that a judicial member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review, (d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted, (e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made, (f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless: (i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or (ii) the Commission gives leave. (2) The Commission may grant leave as referred to in subsection (1) (f) (ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances: (a) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information, (b) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently or vexatiously, (c) where the Commission is satisfied that the new evidence might materially have affected the Commissioner's decision.

[11]

4 The provisions of that Part of the Industrial Relations Act are relevantly as follows: 83. Application of Part (1) This Part applies to the dismissal of: (a) any public sector employee, or (b) any other employee, except an employee for whom conditions of employment are not set by an industrial instrument and whose annual remuneration is greater than $62,200 (or such greater amount as is prescribed by the regulations). (1A) This Part applies to the dismissal of an employee even if the person was employed in this State under a Federal award. However, this Part does not apply to the dismissal of any such employee if: (a) the person is entitled to make an application to the Australian Industrial Relations Commission with respect to the dismissal on the ground that it was harsh, unjust or unreasonable, or (b) the person would have been entitled to make such an application but for the exclusion of the person from the relevant provisions of the Workplace Relations Act 1996 of the Commonwealth (being an exclusion of a kind referred to in subsection (2)). (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: (a) employees engaged under a contract of employment for a specified period of time or a specific task, (b) employees serving a period of probation or qualifying period, (c) employees engaged on a casual basis for a short period, (d) employees whose terms and conditions of employment are governed by special arrangements providing particular protection in respect of termination of employment either generally or in particular circumstances, (e) employees in relation to whom the operation of the provisions of this Part causes or would cause substantial problems because of: (i) their particular conditions of employment, or (ii) the size or nature of the undertakings in which they are employed. (3) This Part does not apply to the dismissal of any such employee who is an apprentice or trainee (within the meaning of the Industrial and Commercial Training Act 1989) 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. (4) This Part applies to the dismissal of an employee even though it occurred in the course of an industrial dispute and the Commission is otherwise authorised under this Act to order the reinstatement of the employee. (5) In this Part: "dismissal" includes: (a) the threat of dismissal, and (b) 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. "Federal award" means an award within the meaning of the Workplace Relations Act 1996 of the Commonwealth. "industrial instrument" includes a Federal award or other Federal industrial instrument. 84. Application for remedy by dismissed employee (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part. (2) An application may be made on behalf of the employee by an industrial organisation of employees. (3) An industrial organisation may make one application on behalf of a number of employees who were dismissed at the same time or for related reasons. However, this subsection does not prevent the Commission from hearing a number of applications under this Part together or individually. (4) An application may be made under this Part even though the applicant does not specify the nature of the remedy sought or requests compensation only. However, this subsection does not affect the requirement under this Part that compensation is available only if the Commission considers that reinstatement or re-employment would be impracticable. 85. Time for making applications (1) An application under this Part must be made not later than 21 days after the dismissal of the employee. (2) The Commission is required to accept an application that is made out of time if the applicant has previously made a similar application under Commonwealth law relating to the same dismissal and: (a) the similar application was made within the time required by that Commonwealth law, and (b) the similar application has not been settled or determined, and (c) the application under this Part is made not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under this Part. (3) The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and (c) the conduct of the employer relating to the dismissal. 86. Conciliation of applications The Commission must endeavour, by all means it considers proper and necessary, to settle the applicant's claim by conciliation. 87. Arbitration where conciliation unsuccessful (1) When, in the opinion of the Commission, all reasonable attempts to settle the applicant's claim by conciliation have been made but have been unsuccessful, the Commission is to determine the claim by making an order under section 89, dismissing the application or making any other order it is authorised to make under this Act. (2) Nothing in this section prevents further conciliation from being attempted at any time before the Commission makes such an order. 88. Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant. 89. Orders for reinstatement, re-employment, remuneration, compensation (1) Reinstatement The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. (2) Re-employment If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable. (3) Remuneration If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order. (4) Continuity If the Commission orders reinstatement or re-employment, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal. (5) Compensation If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave. (6) When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment. (7) Threat of dismissal In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat. (8) An order under this section may be made on such terms and conditions as the Commission determines. 90. Effect of availability of other remedies The Commission must not determine an applicant's claim by making an order under section 89 if: (a) another Act or a statutory instrument provides for redress to the person in relation to the dismissal, and (b) the person has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument.

[43]

13 His Honour noted that the recent events relating to the alleged improper use of the "COPS" computer system had essentially given rise to the reassessment of the appellant's position within the Police Service. His Honour considered the allegations against the appellant to be "matters of substance" and that they were "not trivial issues for all of which the applicant had an acceptable explanation". 14 Before dealing with the specific allegations made against the appellant, his Honour set out some matters of a more general nature concerning the operation of the Police Service Act in the following terms, which statements of law and principle gave rise to the primary grounds of complaint by the appellant: 11 Before dealing with the particulars of these events, it is necessary to consider, in general terms, the nature of the problems advanced and their juxtaposition with the relief available should the applicant succeed. The problems raised against the applicant relate to his conduct, his relationships with female police officers, his supervisory abilities and insofar as the evidence given in the case is concerned, his honesty. The evidence on the matter of supervision satisfies me that the applicant had serious and repeated difficulties with the supervision of staff under him such that I would not order his reinstatement into a supervisory position, were there any other course available, without appropriate remediation. Counsel for the applicant and the Police Commissioner agreed that the power to order reinstatement in these proceedings would not include the power to order reinstatement in a position below that occupied at the time of dismissal. That is to say, if the Commission were persuaded that reinstatement were necessary but that it were preferable to a rank without supervisory responsibilities, such an order would not be available as a matter of jurisdiction. It follows that were the applicant successful in the proceedings but found seriously wanting in respect to supervision, the only remedy involving reinstatement would be to order reinstatement to his former position leaving the Police Commissioner to take such steps as he might be advised with respect to, in effect, demotion. 12 The consequences for the applicant of dismissal from the Police Service are considerable indeed. His age of 53 years obviously affects his future prospects of finding suitable work. Apart from any difficulties in that regard, however, there would be experienced a substantial reduction in the superannuation benefit which would otherwise operate should he be able to remain in the Service until age 60. He would then receive either a fortnightly pension of $1,606.40 or lump sum benefits totalling over $484,000. However, as a dismissed officer the entitlement is $103,000, a portion of which must be preserved until age 55. 13 In the ordinary course of reinstatement matters a penalty of that kind seems to me to be a most material fact in determining whether a dismissal was harsh, unreasonable or unjust (s.84 of the Industrial Relations Act 1996). However, while the same test applies under s.181E of the PS Act, such considerations seem to have less significance in the context of a statutory regime which confers upon the Police Commissioner a power to terminate the services of an officer in whom he has lost confidence . If the loss of confidence is justified, the penalty is the loss of employment with such consequences as that might visit upon the officer, variable as it may be depending upon the length of service. On the other hand, if the loss of confidence cannot be justified, the employment of the officer must be maintained. Leaving aside the matter of supervision referred to in par. 11 hereof, there does not seem to be room for a middle view that the Commissioner was justified in forming the loss of confidence in suitability to continue as a police officer but that dismissal would be harsh, unreasonable or unjust, meaning that the person be restored to the Police Service. Such a result would seemingly defeat the clear object of the statutory scheme. 14 Another matter of importance to mention in the context of relief is an undertaking offered by the applicant to resign (or retire) upon his attaining 55 years of age; this would ensure the reduction in his entitlement to superannuation would be substantially lessened. The Commissioner's submission, which I consider partly correct, is that under the statutory scheme I have no jurisdiction to receive the undertaking. I take that view because of the particular purpose of the proceedings, which is to review the Commissioner's order. In such a review it seems to me there may be 'jurisdiction' to receive such an undertaking but only where the Commission has otherwise determined to find in the favour of the applicant. 15 Section 181F(3) appears to take into account this difference with the Commissioner's confidence provisions by requiring the Commission to have regard to: (a) The interest of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the Police Service, and the fact that the Commissioner made the order pursuant to s.181D(1). 16 There are in my view at least two obvious competing public interest considerations arising in a case such as this. They are:

[47]

17 Turning to the specific allegations, his Honour dealt with each in turn. In relation to the alleged improper access to the COPS system, his Honour found, as to each alleged occasion, the applicant had made the alleged access to the system and in doing so had been acting improperly. His Honour then considered the position of the appellant, having found the allegations made out (at [24]): The nature of the breaches involved here was raised and it was submitted that they were to be considered in the scheme of the penalties able to be imposed for them, which are relatively insignificant. True that may be, they nevertheless raise questions going to the integrity of the officer involved, in the sense that they concern the willingness of the officer to adhere to his employment undertakings and not permit his personal interests to hold sway over his professional obligations. I can see no reason why the Commissioner would not be entitled to weigh these matters in considering the suitability of the applicant to remain in the Service. Should they raise doubts in that respect, in my opinion it would be silly to be required to ignore them for the reason they may have carried a different penalty in other circumstances or, indeed that they were deferred for consideration in this very context. 18 Turning to the alleged failures in relation to the appellant's capacity to supervise, his Honour noted that, in his view, the appellant's supervisory difficulties were "legion". His Honour referred to incidents at the North Sydney Station and the evidence of some of the officers with which the appellant had dealings whilst stationed at North Sydney in this way (at [28]): I have to say that the observation by Sergeant Eyre that the applicant does not seem to accept criticism was made out in the course of the applicant's evidence. It is of course not unreasonable for a person accused of particular behaviour to make a defence to the claims. Here though, the impression I gained from the giving of the evidence was that the applicant regarded himself as in step and his critics as out of step on every issue raised. There was only limited indication of any willingness to accept his errors and to move forward from that position; there was also a persistence in arguing the case, sometimes somewhat vociferously, from the witness box. That itself may not be so problematical, were it not for the fact that on so many matters I find the applicant at fault.

[104]

75 These latter considerations then lead to a consideration of the second major aspect of the appellant's case, namely, whether his Honour was in error in concluding that, where the substance of the allegations made against a police officer were satisfied, it was unnecessary to embark on any examination of process. In substance, his Honour suggested that, in such circumstances, a procedural failure could not suffice to justify any interference with the ultimate sanction. Thus stated, we cannot agree with the conclusion reached by his Honour. The legislature has, no doubt cognisant of the significant powers conferred on the Police Commissioner under Pt 9 of the Police Service Act, laid down various procedural stipulations associated with the removal of a police officer which, in our view, require, if not strict compliance then at least "a careful and punctilious regard to correct procedure", and are of significant importance to the review of a decision made under s181D of the Police Service Act. In this respect, we consider that the correct approach to issues of this kind is synthesised in Van Huisstede as follows at [193] to [200]: 193 In my view, the concept of a "review" must at least have the effect of directing the Commission's attention to the decision of the Commissioner and the decision-making process which was adopted by the Commissioner. Although the removal of a police officer is based upon the confidence of the Commissioner, in my view, the discretion of the Commissioner must be exercised in accordance with the principles (earlier identified in this decision) which were discussed in both Bigg (No. 2) and Oswald (No. 2) . This conclusion flows from statements of the Full Bench in Newton (No. 2) at 79 - 80 with which I respectfully agree: … it may be said that the statutory scheme established by the Police Service Act does not leave open the possibility that the Commissioner of Police will be free to act ill advisedly, or capriciously, in relation to the exercise of the obligation imposed on him by s181D(4) by failing to give a dismissed police officer proper reasons for the decision to dismiss. This necessarily follows because the discretion given to the Commissioner of Police by s181D(1) to remove a police officer from the Police Service must be exercised in the way discussed by the Full Bench of the Commission in Bigg (No 2) (at 457), namely, in the manner discussed by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 117 at 189, as follows: … a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself … That approach applies to the whole of the exercise of the discretion given by s181D, including the obligation under s181D(4) in relation to the giving of reasons.