Luke Simmonds v Commissioner of Police, NSW Police Force

Industrial Relations Commission (NSW)|2024-12-05|Before: Taylor J, Chin J, Paingakulam J

Background

Pursuant to s 181D, before the Commissioner of Police makes an order to remove an officer, she must give the police officer a notice setting out the grounds on which she 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. [1]
The matter below proceeded on the basis that Mr Simmonds had been removed for failing to comply with a COVID-19 direction that was issued on 7 September 2021 which was repeated (and referred to by the parties as a "reminder") on 25 September 2021. The 7 September 2021 direction, in summary, directed that members of the NSWPF could not perform any duties unless they had received at least one dose of the COVID-19 vaccine by 30 September 2021 and a second dose by 30 November 2021, subject to certain limited exceptions, and that a failure to comply with the direction would "ultimately result in management action". The 25 September 2021 "reminder" repeated what was required by 30 September 2021. It commenced by noting that on 7 September 2021 the Commissioner of Police had issued a direction and continued: "This means you are directed to be vaccinated against COVID-19 (subject to limited evidence supported exceptions)". The two communications are collectively be referred to in this decision as "the COVID-19 direction".

The Wood Comment - appeal grounds 1 to 4

Mr Simmonds' case below, and on appeal, was that the Wood Comment provided him with a temporary exemption, or at least that he believed it had, and as such he had not deliberately refused to comply with an order.
Indeed, at [76] of the Decision, Commissioner O'Sullivan noted that at first instance Mr Simmonds had submitted "that his case rose and fell on the existence of the temporary exemption", namely the Wood Comment. Commissioner O'Sullivan's characterisation of Mr Simmonds' case in that regard formed appeal ground 7, which we deal with below. For the reasons there expressed, we agree with Commissioner O'Sullivan's characterisation of Mr Simmonds' case below.
Commissioner O'Sullivan made two findings in respect of the Wood Comment. First at [73] he was not satisfied that the Wood Comment operated in the manner that Mr Simmonds had alleged as a temporary exemption, particularly when having regard to the issuing of the seven-day reminder letter and the show cause notice.
Second, at [74] Commissioner O'Sullivan was not satisfied that Mr Simmonds had a belief that prior to his removal he had a temporary exemption via the Wood Comment.
The latter was an important finding, given that the decision to remove Mr Simmonds was based not merely on the basis that he had not complied with a direction, but had done so "deliberately".
Mr Simmonds sought leave to appeal on the basis that these findings were erroneous, and against the evidence.
As to the first finding, at [73], Mr Simmonds contended that an objective reading of the Wood Comment called for the conclusion that it provided a temporary exemption.
We disagree. In our view it was open to Commissioner O'Sullivan to form the view that the Wood Comment did not provide a temporary exemption for the following reasons: 1. A plain reading of the comment demonstrates that Assistant Commissioner Wood's decision was to deny the exemption sought by Mr Simmonds and affirm the application of the COVID-19 direction to Mr Simmonds; and 2. The nature of the Wood Comment was, on its face, an internal administrative instruction, the substance of which was not intended to be communicated to Mr Simmonds in that form. In context, the comment was an instruction to take steps to ensure that Mr Simmonds was in fact vaccinated before being allowed to return to work.
Further, any doubt as to whether it was intended to be a temporary exemption was removed by the seven-day reminder letter which was subsequently dated.
Contrary to the appeal ground relying on Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, the fact that the Commissioner of Police did not call Superintendent Eggington (who had communicated the Wood Comment and the seven-day reminder letter) or Assistant Commissioner Wood to give evidence, could not give rise to any adverse inference that had they been called, they would have given evidence that the comment did in fact amount to a temporary exemption.
As to the second finding, at [74], Mr Simmonds contended that it was contrary to evidence that he had at all times believed that he had such a temporary exemption.
The primary matter Mr Simmonds pointed to was that in his response on 28 October 2021 to the seven-day reminder, he had identified a contradiction between the Wood Comment and the seven-day reminder letter. This was evidence that Commissioner O'Sullivan took into account. We agree with Commissioner O'Sullivan that the "contradiction" statement did not in terms amount to an expression of a belief of the existence of an exemption.
As Commissioner O'Sullivan noted, at no later time, including in Mr Simmonds' response to the show cause notice, did he claim that the Wood Comment amounted to a temporary exemption. Mr Simmonds pointed to a sentence in the response that sought to rely on all earlier correspondence but in our view, it was open to Commissioner O'Sullivan to find that such a reference was not sufficient to satisfy him that Mr Simmonds was relying on an earlier claimed exemption.
In addition, Mr Simmonds' responses to the seven-day reminder and to the show cause notice were significant as they acknowledged that Mr Simmonds' exemption application had been rejected and proceeded to challenge the reasonableness of the rejection. The former included a statement that he had instructed his solicitors to challenge the direction in the event that any disciplinary action was to be taken against him. In the latter Mr Simmonds also challenged the lawfulness of the COVID-19 direction. These matters indicated Mr Simmonds' state of mind, namely that he clearly understood that he had been granted no exemption to the COVID-19 direction but that he did not intend to comply with it.
Mr Simmonds submitted that he had not been cross-examined as to his belief as to the existence of the temporary exemption, and so it was not open for Commissioner O'Sullivan to find he had no such belief. When asked if that was in circumstances where he had in his evidence in chief claimed to have relied on a belief of such an exemption, he pointed to paragraph 121 in his Affidavit dated 14 September 2022 which formed his evidence at first instance.
Two things can be said about that. First, that evidence in chief did not amount to a clear statement of a belief in the existence of a temporary exemption, such that it can be said that the Commission ought to have accepted that evidence in the absence of cross-examination. Second, and in any event, as Commissioner O'Sullivan set out at [70], it was in fact put to Mr Simmonds that he had no such exemption and that he was claiming to have one for the first-time during cross-examination.
On appeal Mr Simmonds pointed to a statement made by the Commissioner of Police in her written submissions on appeal that: "The Respondent accepts that the Appellant had asserted his belief that the Wood Comment suggested a deferral of compliance with the COVID-19 direction, and that he then sought clarification on this issue". Mr Simmonds contended that statement amounted to a "concession" that he had in fact held the belief that he had a temporary exemption. However, as submitted by counsel for the Commissioner of Police, the sentence, read in context, amounted to no more than a contention that while Mr Simmonds may have "asserted" such a belief, in light of the seven-day reminder letter and the subsequent show cause notice, Mr Simmonds "could not reasonably have laboured under any misunderstanding that he had been granted an exemption, and the evidence shows he did not."
In support of his contention that Commissioner O'Sullivan had erred in his finding at [74], Mr Simmonds otherwise relied upon: 1. conversations that he had with Superintendent Eggington; 2. evidence that Superintendent Driver gave at first instance where he accepted that Mr Simmonds had viewed the Wood Comment as a temporary exemption; 3. evidence from Ms Kirby acknowledging that Mr Simmonds did not have to provide evidence of vaccination until he came back to work; and 4. the HR Fact sheet.
As to the first, the totality of Mr Simmonds' communications with Superintendent Eggington make clear that his last instruction to Mr Simmonds, upon receipt of advice, was to serve him with a letter requiring him to become vaccinated within seven days.
As to the statements made by the respondent's witnesses on which Mr Simmonds sought to rely to confirm his belief, the evidence went no higher than witnesses accepting that Mr Simmonds had asserted that there was a contradiction between the Wood Comment and the seven-day reminder.
For example, in respect of the evidence of Ms Kirby, Mr Simmonds placed reliance on her statement at [47] which said: "I understand that Mr Simmonds is asserting that AC Wood's comment on the 24 September 2021 Report suggested he only needed to become vaccinated against COVID-19 prior to returning to work, meaning he would need to be medically cleared to return to work before any such COVID-19 vaccination requirement arose."
Ms Kirby does not confirm Mr Simmonds' belief that he in fact had a temporary exemption. It merely acknowledges his assertion that there was a contradiction.
As to the HR fact sheet, as the applicant conceded, he did not rely on it at the time of his decision not to get vaccinated because it was only made available to him by the respondent in response to a summons for production during the proceedings below.
In any event, the HR fact sheet, properly construed, only exempted employees permanently unable to return to work, not employees like Mr Simmonds who were temporarily unfit for duty.
The HR Fact Sheet included: "…In cases where an exemption is granted until the officer/employee returns to the NSWPF and the officer has confirmed they agree to be vaccinated prior to their return, the officer must present a vaccination certificate on their return to the workplace."
It is not in dispute that Mr Simmonds' exemption request was denied, as acknowledged by him in his communications with Superintendent Eggington and the Commissioner of Police. There is no evidence that Mr Simmonds had agreed to become vaccinated or took steps to become vaccinated at any point. As such, the HR Fact Sheet was of no assistance to Mr Simmonds' case that it supported a conclusion that the Wood Comment amounted to a temporary exemption.
For the reasons above, we are satisfied that it was open to Commissioner O'Sullivan to make the findings he did at [73] and [74]. In those circumstances, as earlier stated, we are not prepared to grant leave to appeal, since that conclusion means that there was a proper basis for the Commissioner of Police to find the allegation in the show cause notice proven, regardless of the medical contraindication issue. In other words, consistent with the case Mr Simmonds ran below, if he did not have and did not believe that he had a temporary exemption, then there was no basis to overturn a decision to remove him for failing to comply with COVID-19 direction made by the Commissioner of Police.

The medical contraindication certificate - appeal grounds 5 and 6

Mr Simmonds contended that the respondent's decision to remove him, despite providing a medical contraindication certificate, was unfair because: 1. the form indicated that from 2 January 2022 he should not be vaccinated, or at least that he need not be, for six months; 2. other employees, specifically officers A and B had been given a four month exemption after contracting COVID-19 before they were required to have further vaccination, and there was no reason why he should have been treated differently; and 3. he was not given procedural fairness, in that he was not aware that the medical contraindication certificate would be rejected and was only notified of it in his removal notification.
Commissioner O'Sullivan at [76] at first instance held: "Given the applicant submitted that his case rose and fell on the existence of the temporary exemption, it is unnecessary to consider the other aspects of this case.
As already noted, we agree with that conclusion.
Commissioner O'Sullivan went on to say at [76]: However, the medical contraindication certificate provided by the applicant and considered by the respondent, given the notation referred to by the respondent above, did not provide a proper basis for the applicant not to become vaccinated."
The notation to which Commissioner O'Sullivan referred was within note 3 on the certificate quoted above, namely: "There is no requirement to delay COVID-19 vaccination following SARS-CoV-2 infection, if the person has fully recovered from their acute illness".
In our view the Commissioner's finding at [76] failed to have due regard to the full terms of the certificate. On its face, the certificate purported to assert that Mr Simmonds was contraindicated from a vaccination for the entire permissible six-month period. In truth, although the notations on the form recorded that a person could be vaccinated once their symptoms dissipated, it also recorded that a medical practitioner was to state in Section B the period during which a person should not be vaccinated, and Section B had been completed to the effect that it was the full six-month period.
It seems likely that the form was incorrectly completed by the medical practitioner, in that he did not in fact mean to convey that Mr Simmonds could not be vaccinated for six months, but it was open for the respondent to identify that and ask Mr Simmonds to obtain a further form in any event of doubt - which in fact the respondent did, to correct a different issue, namely to rectify the incorrect date of diagnosis recorded.
If the matter had come before us at first instance, we may have come to the conclusion that to remove Mr Simmonds on the basis of a particular reading of the medical contraindication certificate's effect in a manner different to the express terms of Section B, without communicating that to him in advance, gave rise to potential unfairness.
However, that finding does not lead us to grant leave to appeal. The Commission's statutory duty is to firstly consider the Commissioner of Police's reasons for the decision to remove the Mr Simmonds [2] before considering his case as to why the removal was harsh, unreasonable or unjust. Having regard to the Commissioner of Police's reasons, the correction of this error would have no effect on the result of the Decision at first instance to uphold the decision to remove the Mr Simmonds from the NSWPF. [3] We come to that conclusion because the reasons for the initiation of disciplinary proceedings by the Commissioner of Police were confined to Mr Simmonds' disobedience of the COVID-19 direction, and the medical contraindication provided by him did not exempt him from complying with such direction within the specified time. Accordingly, given our finding in respect of the Wood Comment, the Commission had a proper basis to reject the application for review.

Appeal ground 7

As noted, Commissioner O'Sullivan's characterisation of Mr Simmonds' case below at [76] as rising and falling on the existence of and belief in a temporary exemption is the subject of appeal ground 7. In short, Mr Simmonds contends that Commissioner O'Sullivan erred in so finding because "there remained an argument (that Mr Simmonds says he put below) that the applicant was not obligated to comply with the Vaccination direction while on Workers Compensation and unsuitable for duties, irrespective of the Wood Decision".
Appeal ground 7 cannot be sustained. Mr Simmonds' case below relied on the Wood Comment providing a temporary exemption as the only basis for contending that he did not contravene the COVID-19 direction: see Mr Simmonds final outline of closing submissions below at [4], [78(a)] and [78(b)] and his reply submissions below at [31], [34], and transcript 14 December 2023, p 14. It is clear from that material that Mr Simmonds' case below was that the COVID-19 direction applied to him, but for the Wood Comment.

Length of the proceedings

Before concluding, we think it is appropriate to comment about the time it took for the proceedings at first instance to be finalised.
Proceedings in which an employee challenges their dismissal - or, for police officers, their removal - should be heard and determined as quickly as possible. The longer an employee is out of the workforce the harder it is to re-enter it, either with the same employer or any other. Further, the uncertainty of outcome of such proceedings leaves an employee in suspension, which can be harmful. Similarly, it is in the interest of the employer to have certainty as soon as practicable so that it can hire and appoint other staff. With those considerations in mind, the Commission endeavours to list such matters for hearing within 10-12 weeks of the conciliation concluding and to determine them to finality within six months. Often, they are concluded more quickly. It is only an extraordinary dismissal case that would require more than 9 months from the date of application to conclude.
In this case the application to review the Decision was filed on 29 March 2022, conciliated on 27 April 2022, and determined more than two years later, on 5 July 2024. Part of that delay was caused by the parties being slow to put on evidence, the last being filed in December 2022, with hearing dates accordingly set in March 2023. That delay was no doubt in part due to the parties waiting on the outcome of other proceedings giving rise to similar issues. There was then a further substantial delay caused by those hearing dates being vacated and new dates being set for November 2023, 11 months after the evidence was filed. The March 2023 hearing dates were vacated after the applicant filed an application for production, which led to substantial interlocutory proceedings before the Registrar and Commissioner O'Sullivan between December 2022 and February 2023. We were told that the delay between March 2023 and the eventual hearing dates in November 2023 was primarily due to the unavailability of counsel (both sides were represented by counsel at first instance). Following the hearing, there was then a further delay of about six months after the hearing concluded before the decision was handed down.
It is understandable that parties would ask the Commission to delay hearing a matter until their counsel is available, particularly in circumstances where counsel has already done work to prepare for the hearing, given the cost of briefing new counsel (in what is, for all intents and purposes, a no-costs jurisdiction). Ordinarily, consent applications as to procedural matters will be granted. However, that will not always be the case, particularly in respect of applications to vacate hearing dates and/or set hearing dates. The delay that occurred in this case ought not to have occurred. As a general principle, in a dismissal matter the Commission will not accommodate a consent application to delay a hearing based on counsel unavailability by more than an additional one to two months.

Conclusion

For the reasons set out above, we are of the view that any errors of fact were not significant to the outcome and that the appeal did not raise any substantial issues of law or principle with any implications for the wider jurisprudence of the Commission such that it would be in the public interest to grant leave to appeal. We refuse leave to appeal and dismiss the application.

Orders

The Full Bench orders: 1. Leave to appeal is refused. 2. The application is dismissed.

Endnotes

(1959) 101 CLR 298; [1959] HCA 8.
Police Act 1990 (NSW), s 181D(1).
Police Act 1990 (NSW), s 181F(1)(a).

Amendments 19 December 2024 - Addition of representation for respondent 19 December 2024 - In Order 2, the word 'appeal' replaced with 'application'. 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: 19 December 2024

Principles on leave to appeal

Pursuant to s 188 of the Industrial Relations Act 1996 (NSW), an appeal does not lie as of right against a decision of the Commission at first instance. An appeal to a Full Bench of the Commission may only proceed with the leave of the Full Bench and such leave is to be granted only if, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, leave should be granted.
If leave is granted, the appeal is not by way of a new hearing and the Full Bench cannot substitute its decision on the matter but must follow the principles applying to appeals from discretionary decisions: ss 191(1) and 191(3) of the Industrial Relations Act.
The principles to be applied in the consideration of leave to appeal were summarised by Walton J at [21] in Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association (2022) 320 IR 249; [2022] NSWSC 1178.
A further passage that has been applied in several cases is that of the Full Bench in the case of Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263; [2005] NSWIRComm 409 at [5]: "The law and practice governing leave to appeal is well settled and does not require restatement. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted and, subject to the requirements of s 188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal 'raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application' or raises issues going to the proper administration of justice. Second, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence." (Citations omitted.)
In seeking leave to appeal, Mr Simmonds relied upon what he said were "findings of fact that were not open" of such significance as to warrant a grant of leave in order to ensure the proper administration of justice, citing Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd (2003) 128 IR 37; [2003] NSWIRComm 211 at [77].

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