Lyne v Commissioner of Police

Industrial Relations Commission (NSW)|2021-09-06

decision

Ms Fiona Lyne (appellant) seeks leave to appeal and appeals pursuant to ss 187 and 188(1) of the Industrial Relations Act 1996 (NSW) (IR Act) against the decision of Commissioner Murphy in Lyne v Commissioner of Police [2021] NSWIRComm 1001 (Decision) published 20 January 2021.
In the Decision, Commissioner Murphy dismissed the appellant's unfair dismissal proceedings commenced pursuant to s 84 of the IR Act, on the basis that her employment had come to end because of her resignation, which was accepted. Commissioner Murphy rejected the appellant's arguments that she was entitled to, and did withdraw her resignation, without the consent of the respondent.
This appeal centres upon the interpretation of s 94C of the Police Act 1980 (NSW) (Police Act) which is in the following terms: 94C Resignation or retirement (1) A member of the NSW Police Force may resign from the NSW Police Force by written notice to the Commissioner. (2) The resignation of a member of the NSW Police Force does not take effect until - (a) the Commissioner accepts the resignation, or (b) the member has given the Commissioner at least 4 weeks' notice in writing of the day on which the member intends to resign and the member is not under suspension from duty on that day. (3) In this section, resignation includes retirement and member of the NSW Police Force does not include the Commissioner.
The appellant appeals against the Decision on three grounds, namely that Commissioner Murphy: 1. erred at law in finding that s 94C of the Police Act did not have the effect of altering the common law principle that a resignation may not be unilaterally withdrawn (Ground 1); 2. constructively failed to exercise jurisdiction in failing to consider an express argument put to the Commission by the appellant that the respondent's delegate misapprehended his powers under subs 94C(2)(a) of the Police Act (Ground 2); and 3. constructively failed to exercise jurisdiction in failing to consider an express argument put to the Commission by the appellant that her purported resignation was invalid by reason of her failure to give four weeks' notice, and she was at large to withdraw her repudiation before it was accepted (Ground 3).

The Decision

On 16 June 2020, the applicant filed an application for relief in relation to Unfair Dismissal ("Application"). In response, on 25 June 2020, the respondent filed a Notice of Motion seeking an order dismissing, or otherwise setting aside, the Application ("the respondent's Notice of Motion"). The grounds and reasons supporting the respondent's Notice of Motion, relevantly provided: "4. Pursuant to s. 84(1) of the IR Act, in order for the Commission to be seized of jurisdiction to hear the Unfair Dismissal Application, there must have been a dismissal by the Respondent of the Applicant. 5. The Applicant voluntarily resigned from her employment with the Respondent on 10 June 2020. 6. There was no dismissal of the Applicant by the Respondent. The Respondent was not the real and effective initiator of the termination of the Applicant's employment. 7. Accordingly, the Applicant is not entitled to bring the Unfair Dismissal Application, and the Commission does not have jurisdiction to hear the Unfair Dismissal Application. 8. The Unfair Dismissal Application must be dismissed for want of jurisdiction. It was the respondent's Notice of Motion that was finally determined by the Commission in the Decision."
The underlying facts in this matter are to a large extent agreed by the parties. These were set out in the Decision at [1]-[9] in the following terms: "1. The applicant, Fiona Lyne, was, up until 10 June 2020 when she emailed a letter of resignation, employed as a General Administrative Support Officer ('GASO') at the Sydney City Police Area Command ('SCPAC') in the NSW Police Force. She commenced employment in that role on 9 January 2017. The applicant's resignation letter was addressed to Inspector Robert Winkler, Human Resources Duty Officer ('HRDO'), SCPAC. 2. Inspector Winkler received the applicant's email with the letter of resignation attached at 1.17pm on Wednesday 10 June 2020. The email and attached letter of resignation are set out below: Dear Inspector Winkler, Please find attached my resignation, it is effective immediately. Kind regards, Fiona 10 June 2020 Attn: Inspector Robert Winkler, Human Resources Duty Officer, Sydney City Police Area Command. Re: Resignation Please accept this letter as formal notice of my resignation from my position as General Administrative Support Officer, Sydney City Police Area Command. My last day will be today. Ever since divulging my health concerns to Police Area Manager, Jacqueline Goulding, I have been in turmoil. The relationship between employee and manager should be one of mutual respect and support. Instead, Police Area Manager Jacqueline Goulding used bullying and harassment as a management style. Unfortunately, these tactics directly oppose my personal business philosophy which advocates a more sensitive approach. Not only is it unconscionable for me to work in such a hostile environment, it is also physically and mentally debilitating to work under such stressful circumstances. Allow me to provide some examples of the hostility I have experienced over the past twelve months: • April/May 2019 - consistent harassment from Police Area Manager, Jacqueline Goulding about my 'lateness' to work and absenteeism due to illness and prolonged recovery from pneumonia and iron deficiency. • June/July 2019 - I was advised by Police Area Manager, Jacqueline Goulding that I was, 'in breach' of the sick leave policy, having used 80% of my entitlements in the first six months of the year. This was due to a severe bout of pneumonia. This disease nearly claimed my life. There was no compassion, nor empathy provided me during the time I was absent from work, or when I returned. • September 2019 - I arrived late to work one morning due to ill health, upon notifying Police Area Manager, Jacqueline Goulding that I was unwell and on another course of antibiotics she advised me abruptly I was being removed from roster officer training due to my lateness as she 'can't be seen to be rewarding bad behaviour'. Under no circumstances have I ever 'behaved badly'. I was, as per the medical certificates I have provided, unwell. I was then assigned 'case filing' duties for the foreseeable future. • October 2019 - I was advised (by email) from Police Area Manager Jacqueline Goulding that I was subjected to a Performance Improvement Plan, citing 'lateness' to work and 'offensive language' as grounds for the implementation of the plan. I was still suffering chronic fatigue and persistent respiratory infections. The grounds for implementing a Performance Improvement Plan were, and still are unreasonable. I am yet to be allowed procedural fairness to respond to the allegations. • December 2019 - I suffered verbal abuse and psychological injury by a fellow General Administrative Support Officer, after an outburst from her where she called [me] a 'bitch' on three [separate] occasions. I reported this abuse to Police Area Manager, Jacqueline Goulding immediately after it took place. It is interesting to me that Police Area Manager Jacqueline Goulding chose NOT to report my abuse to Human Resources as per NSW Police Force Policy, but allowed the perpetrator of the verbal abuse to turn the incident around alleging bullying and harassment from me. • January 2020 - I was formally advised by Professional Standards Command, by way of a letter that I was being investigated for misconduct. No details of the alleged misconduct were provided to me until late April 2020. This caused me acute anxiety. • April 2020 - I was formally advised by Detective Sergeant Michael Krawczyk by way of email the details of the misconduct and I was to be subjected to interview. I was allowed 10 days to provide a written response. As at today's date, there is still no outcome. • 25 May 2020 - I was directed by Police Area Manager, Jacqueline Goulding to attend a meeting with Superintendent Gavin Wood and Chief inspector Sean Heaney, Sydney City Police Area Command. The subject of the meeting was not provided to me. I was 'served' a document written by Tania Madgwick, A/Business Manager, Central Metropolitan Region, NSW Police. The letter advised me that I was being referred to Sonic Health for an Independent Medical Assessment. I note Superintendent Gavin Wood's support of Ms Madgwick's referral, describing the medical evidence that has been provided to date, as 'anecdotal'. Resigning for these reasons is extremely disconcerting, but given the circumstances, I don't feel [I] have much choice. (Some) senior management does not seem troubled by Police Area Manager Goulding's inappropriate behaviour toward her employees and I therefore doubt that changes are imminent. These present difficulties do not negate the fact that I have derived much enjoyment in the few years from my employment with NSW Police. I have felt immensely proud to be an employee and have carried out my duties with the highest possible standards. The decision to resign is not taken lightly. I take this opportunity to express my heartfelt thanks and gratitude to you and Chief Inspector Paul Dunstan for the compassion and empathy you have both shown me over recent months. I leave my role today with no savings or assets and no way to support myself financially. I have no entitlements by way of leave that will be paid to me. The work environment is so hostile that I am forced to face severe financial distress and certain long term unemployment rather than return to the workplace. My access card, name badge and keys will be returned to you via express post. With warmest regards, Fiona Lyne 3. Shortly thereafter, at 2.34pm, Inspector Winkler emailed a form entitled 'Resignation/Notice of Retirement from the NSW Police Force' ('P1050 form') to the applicant as an attachment to an email which is set out below: Hi Fiona, I have received your email regarding resignation and related documents. Please see attached the relevant resignation form for completion and return to me. As always, if you have any need for a chat, please give me a call or text and I can call you back. Regards, Rob Winkler 4. The applicant completed the form in part and returned [it] to Inspector Winkler on 12 June 2020 by email at 11.42am. The email is set out below: Dear Insp Winkler Thanks for sending the form through and the offer to talk. I have completed most of the form, but I have not signed it as I do not have access to internal policies or the survey and I am not aware of what other options would be / are available to me other than resigning. The letter I wrote is the attachment I refer to in the HR resignation form. Andrew Wright, Industrial Officer, PSA NSW is cc'd above. Regards Fiona 5. Those aspects of the P1050 form which the applicant completed included 'I hereby tender my: x resignation'. The prime reason for resigning was stated as follows: SUSTAINED BULLYING & HARRASSMENT BY POLICE AREA MANAGER, JACQUELINE GOULDING, REGARDING MY HEALTH. PLEASE SEE ATTACHED. 6. The applicant also ticked the boxes next to 'I require an Employment Separation Certificate for Centrelink' and 'I am at some future time interested in rejoining the NSW Police Force'. Also recorded on the form by the applicant was the following: THERE IS NO SURVEY FOR ME TO COMPLETE? I HAVE NOT READ ANY POLICIES ON WHAT MY OPTIONS WOULD BE OTHER THAN TO RESIGN. I HAVE BEEN FORCED TO RESIGN BECAUSE THE WORK ENVIRONMENT HAS BEEN SO HOSTILE. 7. Inspector Winkler responded at 11.55am on the same day by email which is set out below: Hi Fiona, I can complete aspects of the resignation survey for you if you want me to talk it through over the phone? I am sure that your electronic copy of the form sent from your email can be accepted as your signed version. Regards, 8. At 3.53pm on 12 June 2020, the applicant again emailed Inspector Winkler to advise him that she had been provided with advice to retract her resignation. That email is set out below: Insp Winkler, I've been provided with advice that I am to retract my resignation. Based upon grounds I'm not thinking rationally due to stress caused by actions Jacqueline Goulding has brought against me over the past year. Let me know what I need to do. Regards Fiona 9. On 15 June 2020, Andrew Wright of the Public Service Association ('PSA') telephoned Inspector Winkler and advised him that the applicant had withdrawn her resignation." (Emphasis in original.)
At [10] of the Decision, Commission Murphy stated that Superintendent Gavin Wood accepted the appellant's resignation from her employment and acknowledged there was a dispute about when that acceptance occurred.
Commissioner Murphy set out the grounds and reasons contained in the respondent's Notice of Motion and, in summary form, the evidence presented by the parties in the hearing. This included an extract from the cross-examination of Superintendent Wood, who deposed that he had understood that he did not have a discretion to not accept the appellant's resignation, unless there was serious misconduct on her part: Decision at [20]. The Decision also reproduced extracts from the written submissions of both parties in respect of the Notice of Motion: [26]-[29] of the Decision.
Commissioner Murphy approached the issues raised by the Notice of Motion in his determination, under the headings of "Withdrawal of resignation", "Resignation ineffective", and "Constructive dismissal".
With respect to the "Withdrawal of resignation", the Commissioner set out the accepted common law position that notice of resignation, once given, cannot be unilaterally withdrawn, except where the notice is given in the "heat of the moment", and the withdrawal occurs immediately after the "heat dies down" (Common Law Position): see [30]-[31] of the Decision. The Commissioner also acknowledged that the Common Law Position could be modified by statute.
Commissioner Murphy addressed the decision of the NSW Court of Appeal in State of New South Wales v Paige (2002) 60 NSWLR 371 (Paige) which considered the potential displacement of the Common Law Position in the context of s 78 of the Teaching Services Act 1980 (NSW) (Teaching Services Act). The Commissioner concluded that Paige is not authority for the contention that s 94C of the Police Act modifies the Common Law Position: Decision at [40].
In the Decision, Commissioner Murphy also considered Lewandowski v NSW Police Force [2009] NSWIRComm 28 (Lewandowski), which involved a constructive dismissal argument premised on the predecessor provision to s 94C of the Police Act, being subs 72(2). In that case, Kavanagh J concluded that Paige is not authority for the broad proposition that resignation tendered under a statutory provision that requires some form of approval can be withdrawn any time before it is accepted.
The Commissioner concluded that the Common Law Position applied to the circumstances of the case. He observed that there was no suggestion that the "heat of the moment" exception was applicable to the matter: [44] of Decision.
The Commissioner accepted the evidence of Superintendent Wood that he did, in fact, accept the resignation on 10 June 2020, when it was given to him: Decision at [46]; [54].
The Commissioner also rejected the appellant's alternative arguments, which were: 1. that her resignation was ineffective because she was statute barred from resigning with immediate effect: Decision at [50]-[55]; 2. that her failure to return a signed form regarding her resignation made the resignation ineffective: Decision at [56]-[57]; and 3. that she was constructively dismissed by the respondent as a consequence of being bullied and harassed by her manager and the respondent's requirement that she attend a medical assessment: Decision at [58]-[65].
The Commissioner found for the respondent on the Notice of Motion and dismissed the appellant's application for relief.

The parties' submissions

On 10 February 2021, the appellant filed an Application for Leave to Appeal and Appeal.
The appellant relied upon the following written submissions: 1. Appellant's Outline of Submissions on the issue of leave, filed 5 July 2021; 2. Appellant's Outline of Submissions, filed 5 July 2021; and 3. Appellant's Outline of Submissions in Reply, filed 23 August 2021.
In addition, the appellant filed: 1. on 2 August 2021, a document titled "Appellant's Chronology"; and 2. on 16 August 2021, a note responding to a question posed by the Full Bench at the hearing, specifically, "Whether consideration by a single judicial member is binding authority for three members who are non-judicial?" (the appellant's note).
The respondent relied upon the following written submissions: 1. Respondent's Narrative on Leave to Appeal, filed 2 August 2021; and 2. Respondent's Outline of Submissions, filed 2 August 2021.
Both parties were represented by counsel at the hearing of the appeal and delivered oral submissions.
We have considered the parties submissions and refer to them as required in this decision.

Leave to appeal

Section 188 of the IR Act provides that an appeal to a Full Bench of the Commission may be made only with leave, and that such leave may only be granted if the Full Bench is of the opinion that the matter is of such importance that, in the public interest, leave should be granted.
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]. These are: 1. an appeal under the IR 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 findings of fact, leave will rarely be granted.
We have decided to grant leave to appeal on the basis that there is a public interest in having a Full Bench determine whether the s 94C (2) of the Police Act displaces the Common Law Position. This may have implications beyond the appellant's case.

Ground 1

The appellant's first ground of appeal is in the following terms: "1. The Commission erred at law in finding at [46] that section 94C of the Police Act 1990 (NSW) did not have the effect of altering the common law principle that a resignation may not be unilaterally withdrawn. (Ground 1) Particulars (a) Section 94C requires as a pre-condition for a resignation by a member of the Police Force to 'take effect' that acceptance by the respondent is necessary unless 4 weeks' notice in writing is given and the member is not suspended from duty; (b) The appellant had not provided 4 weeks' notice; (c) As a matter of fact, the appellant's resignation could not take effect until acceptance by the respondent by reason of section 94C, and was therefore not operative on its terms; (d) If a statute provides that a resignation does not take effect until acceptance, then the common law principle that a resignation is a unilateral act does not apply and a resignation may be withdrawn."
The appellant argues that s 94C of the Police Act displaces the Common Law Position.
The Common Law Position, including its underlying rationale, was considered by Spigelman CJ in Paige at [277]-[279]; [281]; [283]-[284]: "Subject to any contractual or statutory provision to the contrary, the act of resignation from employment, or from membership of an organisation, is a unilateral act that takes effect in accordance with its terms and does not depend upon acceptance by the person or body to whom the resignation is directed. This common law principle is a reflection of the significance the common law has always attached to personal autonomy. Where this principle applies, unilateral withdrawal of a resignation or notice of termination is not possible. The historical position that resignation from offices was not complete until acceptance, has often been modified. Although it is still common to talk of resignations in a contractual context being 'tendered' and 'accepted', such formulations are 'merely linguistic courtesies'. (See Marks v The Commonwealth (1964) 111 CLR 549 at 571 per Windeyer J.) There are, however, particular offices to which special considerations attach, so that a resignation does not take effect until acceptance. … … The common law principle that a resignation may not be withdrawn can be modified by statutory provision. (See e.g. McCarry 'Termination of Employment Contracts by Notice'(1986) 60 ALJ 78 esp at 80 and the examples set out by Windeyer J in Marks v The Commonwealth at 571- 572.) If a statute provides that a resignation does not take effect until acceptance, then the common law principle that a resignation is a unilateral act does not apply and a resignation may be withdrawn."
In his judgement, Spigelman CJ quoted the decision of Gray J in Birrell v Australian National Airlines Commission (1984) 5 FCR 447 (Birrell) (at 458): "The purpose of providing in a contract for a period of notice of termination is to enable the party receiving the notice to make other arrangements. An employee given notice by his or her employer has a period of time in which to seek another job; an employer who receives notice has time to arrange for a substitute employee. It would be harsh if arrangements so made during the running of the notice could be disrupted, and parties could be held to their contracts by unilateral withdrawal of the notice at the last minute. Such withdrawal, if possible, could lead to an employee being bound by contracts of employment to employers, or an employer being bound by contracts of employment with two employees, each being required to give notice to one or the other in order to be extricated from this position, or possibly to suffer the requirement to forfeit or pay wages for a period of time. In my view, I should lean against the adoption of any principle which could lead to such unfortunate consequences, and I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties."
The parties also made submissions in respect of the decision of Kavanagh J in Lewandowski. While we have found it to be of limited assistance in our determination, in deference to the reliance placed on it by the parties we will examine the decision, albeit briefly.
In Lewandowski, the applicant, who represented himself, had resigned from his employment and had attempted to withdraw his resignation. He argued his application for unfair dismissal should succeed on two basic grounds (see [56]): 1. the circumstances leading to his termination were such as they should be viewed as a constructive dismissal of him by the Police Force; 2. alternatively, the same circumstances reveal an unfairness in the employment at termination and he should have been allowed to withdraw his resignation.
In Lewandowski, the provision being considered was s 72, the precursor to s 94C of the Police Act. It was in the following terms: 72 Vacation of non-executive police officer positions (1) A non-executive police officer's position becomes vacant if the officer: (a) dies, or (b) completes a term of office and is not appointed for a further term, or (c) is removed from office, or retires or is retired from office, under this or any other Act, or (d) resigns his or her position in writing addressed to the Commissioner, or (e) abandons his or her employment in the NSW Police Force. (2) The retirement or resignation of a non-executive police officer does not take effect until: (a) the Commissioner accepts the retirement or resignation, or (b) the officer has given the Commissioner at least 4 weeks' notice in writing of the day on which the officer intends to retire or resign and the officer is not under suspension from office on that day.
At [55], Kavanagh J stated: "Under s72 of the Police Act 1990, a resignation from the Police Force does not 'require' the acceptance of the Commissioner of Police except in circumstances where the officer wishes the resignation to be effective within a period of less than four weeks (provided he is not suspended). Mr Lewandowski wanted the resignation to be 'effective immediately' and, to that end, he ceased all duties immediately. This was accepted by the Police Force with confirmation by the Commissioner (through his delegate) and that acceptance took approximately 17 days. The applicant did not give at least four weeks notice, therefore all that was required under s72(2)(a) of the Police Act to effect the applicant's resignation was for the Commissioner to approve the resignation and that approval made the resignation approved from that date. Under s72(2)(b) of the Act, the alternative way for a resignation to be tendered is for a serving Police Officer (not under suspension) to give at least four weeks notice. The applicant did not give at least four weeks notice, therefore under s72(2)(a) of the Police Act his resignation required approval of the Commissioner and would take effect when the Commissioner accepted it."
It is not clear from this reasoning whether her Honour was of the view that the Common Law Position had been altered or displaced by operation of subs 72(2)(a). There was no further analysis of s 72 by her Honour. Her Honour found that the respondent had accepted the applicant's resignation and therefore it had taken effect.
Justice Kavanagh rejected the applicant's first argument that he had been constructively dismissed: see [59].
The second argument that was considered in Lewandowski was whether "the conduct of the Police consideration and acceptance of his resignation was unfair": at [61].
After considering the decision in Paige, Kavanagh J concluded that "justice requires a consideration of the withdrawal if the withdrawal is proffered within the reasonable period of time that is necessary for the consideration of the resignation, but there is no obligation on an employer to accept a withdrawal of a resignation": at [76]. This statement is problematic in the context of an unfair dismissal application. That is, that while an employer has no obligation to accept a purported withdrawal of a resignation, "justice" requires that the withdrawal be considered. The Commission's jurisdiction under s 84 of the IR Act is only enlivened in the event of a dismissal, and not where the employment is terminated at the initiative of the employee. If the employee has resigned in circumstances where "there is no obligation on [the] employer to accept a withdrawal of a resignation", how would the Commission give consideration to a purported withdrawal as supposedly "required" by "justice"?
In any event, Kavanagh J ultimately found that there was no unfairness in the circumstances surrounding the respondent's decision not to accept the withdrawal of the applicant's resignation: at [79]. Accordingly, the application was dismissed.
Having considered Paige and Lewandoski it is necessary to turn to the terms of s 94C of the Police Act, to determine whether it displaces the Common Law Position.
The principles that apply to interpreting legislation have been well traversed. The process begins with a textual analysis of the words of the relevant provision being interpreted - that is, a consideration of the ordinary and grammatical meaning of the words of the text. However, that initial step may involve the construction of the words of a provision in question when read in the context of the statute as a whole: Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 at [26] and [88].
The determination of the purpose of a statute or a particular statutory provision may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, if appropriate, reference to extrinsic materials.
Ordinarily, the legal meaning of a particular provision in a statute will correspond with the grammatical meaning, but this is not always so: Certain Lloyd's Underwriters v Cross at [25]. The interpretation best open on the text which achieves the purpose or object of the statute is to be preferred to each other interpretation (even if the purpose or object is not expressly stated in the text). This well settled approach to statutory construction, that it is the purpose of the legislation which must be identified and promoted when interpreting the operation of a statute, is reflected in s 33 of the Interpretation Act.
The goal in interpreting a statute is to give effect to the intention of the Parliament. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 the High Court observed (at 408) that the modern approach to statutory interpretation: 1. insists that the "context" be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise; 2. uses "context" in its widest sense to include such things as the existing state of the law and the mischief which one may discern the statute was intended to remedy; and 3. requires that an analysis of the legislation starts with a consideration of the words of the legislation itself, read in context.
Subsection 94C(1) is plain in its words. Consistent with the common law, it provides that any member of the NSW Police Force may resign from their employment. It does not provide that the resignation must be accepted for it to be effective. It proscribes the process by which a resignation is to occur; it must be by way of written notice to the respondent. The appellant's resignation complied with subs 94C(1), as it was in writing and delivered to the Human Resources Duty Officer at her Command, Inspector Winkler.
The opening words of subs 94C(2), "The resignation", make it clear that the subsection is directed to the issue of when a resignation is to take effect, not whether it has effect at all. In that regard, it states that it will take effect when the Commissioner accepts it, or when the person has given four weeks' notice in writing and is not under suspension from duty. Subsection 94C(2) does not prescribe the manner in which a resignation is to be given, or when a resignation will, or will not, be effective. The operation of that subsection will only dictate when, and not whether, the person's employment will come to an end.
Put another way, what subs 94C(2)(a) anticipates being "accepted" is not the resignation itself, but a period of notice of less than four weeks.
The parties agree on the proposition that the common law can be modified or displaced by statute. There are numerous examples where the legislature has seen fit to modify or displace the common law. However, this is usually done in plain and unambiguous terms. In this case, no such words exist. Had the legislature intended that the terms of subs 94C(1) modify the Common Law Position, this could easily have been achieved.
In our view, read wholistically and in context, the purpose of s 94C is clear. Subsection 94C(1) is intended to reflect the Common Law Position, pursuant to which an employee may unilaterally resign their employment. It also provides the process by which resignation of employment is to occur, namely in writing to the respondent.
The purpose of subs 94C(2) is to ensure that the respondent can require the employee to remain in employment for at least 4 weeks from the time they resign and to confer an option to prevent an employee from having their resignation take effect while they are suspended from duty. To understand the rationale behind this, it is not necessary to go past the observations of Gray J in Birrell reproduced at [29] above.
There is nothing in the text or context of s 94C to support the contention that it should be read, contrary to its plain words, to give it a meaning that would displace the Common Law Position. We are of the view that this reading is also consistent with both the text and purpose of s 94C.
This interpretation is consistent with the underlying public policy objectives that inform the Common Law Principle that an employee be able to resign their employment unilaterally, and be unable to the withdraw it, except in very limited circumstances: see above at [26] and also per Giles JA at [372] and [378] in Paige.
For these reasons, we reject the first ground of appeal. Section 94C of the Police does not alter the common law position that a resignation is a unilateral act and is not able to be withdrawn except by agreement of the respondent.

Ground 2

The second ground of appeal is in the following terms: "2. The Commission further constructively failed to exercise jurisdiction in failing to consider an express argument put to the Commission by the appellant. (Ground 2) (a) The evidence before the Commission disclosed that the respondent, by way of his delegate, misunderstood that he was mandated to accept the resignation tendered by the appellant; (b) Section 94C(2)(a) reposed in the respondent a discretion as to whether to accept the appellant's resignation or not; (c) In misapprehending his power, the respondent through his delegate failed to exercise his power under section 94C(2)(a) with the result that the appellant's resignation was never accepted within meaning of that section; (d) The appellant expressly raised these matters with the Commission; (e) The Commission failed to consider and deal with the appellant's submissions."
The second ground of appeal can be dealt with simply as it follows directly from our interpretation of s 94C of the Police Act above.
The appellant is correct that the delegate, Superintendent Wood, misunderstood his discretion as provided for in subs 94(2)(a) of the Police Act. He did not have to accept the resignation coming into effect with less than 4 weeks' notice. However, this apprehension in no way impacts upon the unilateral nature of the appellant's decision to resign her employment pursuant to subs 94C(1). The respondent did not have the discretion to reject the appellant's resignation and the appellant did not have a right to withdraw it without the respondent's agreement.
In any event, Commissioner Murphy found that the appellant's resignation was accepted by Superintendent Wood on 10 June 2020, consistent with the wish she expressed in her resignation letter that her employment end with immediate effect. We see no reason to disturb that finding of fact.
Superintendent Woods considered that he had no discretion but to accept the appellant's resignation. He was correct, at least in part. As we have found, s 94C does not displace the Common Law Position, and the Commissioner of Police has no discretion to refuse to accept a resignation. All he can do is to decline to accept less than four weeks' notice. It follows that any misapprehension under which Superintendent Woods was acting did not impact upon the legal effect of the appellant's resignation. The appellant would not acquire a new right to withdraw her resignation, because the respondent did not understand he could require the appellant to work out a notice period of 4 weeks (against her wishes) before the resignation came into effect.
It follows that the appellant's Second Ground of appeal fails.

Ground 3

The third ground of appeal is in the following terms: "3. Further and in the alternate to Grounds 1 and 2, and if the Full Bench finds that s 94C did not so alter the common law principle, the Commission constructively failed to exercise jurisdiction in failing to consider an express argument put to the Commission by the appellant. (Ground 3) (a) The appellant argued in the alternate that in purporting to give notice of her resignation 'effective immediately', her purported resignation was invalid by reason of her failure to give the required 4 weeks' notice, and was therefore repudiatory, and could be unilaterally withdrawn prior to acceptance; (b) On the evidence before the Commission no acceptance of that repudiation was given by the respondent to the appellant prior to her withdrawal of the purported resignation; (c) The Commission failed to consider and deal with the appellant's submissions."
The appellant's argument that her resignation constituted a repudiation of her contract of employment was not fully developed either before Commissioner Murphy or the Full Bench. Before Commissioner Murphy was the letter engaging the appellant as a General Administrative Support Officer, dated 4 January 2017. The document is in the form of a letter of offer, and it makes no reference to the notice required of the appellant upon resignation. Accordingly, the appellant's submission proceeded from a premise that the contract of employment required the giving of notice, where there is no written contract that provides for this. The appellant did not explain in her submissions, how the requirement to give notice was implied into the contract of employment, given the parties' rights and obligations contained in s 94C of the Police Act.
Section 94C of the Police Act operates according to its terms as a law which, to the extent of any inconsistency, governs the question of resignation and overrides any contractual terms, if there is a contractual term which is inconsistent with the statute. That is, a contract of employment is adapted to the statutory scheme that governs the employment relationship between the employee and the employer.
Accordingly, we can see no issue with the approach taken by Commissioner Murphy, in disposing of the appellant's argument as he did, by considering the operation of s 94C of the Police Act at [50]-[55] of the Decision.
Even could it be said that there was a repudiation of the contract of employment by the appellant, we would agree with the respondent that through the events that followed the resignation, the respondent conveyed its acceptance of any repudiation, even if this did not occur formally and in writing until 15 June 2020. In particular, we note that the appellant did not attend a scheduled medical appointment required by the respondent, she did not attend work and there was no evidence of any follow up to require this. Finally, the appellant was provided with paperwork associated with her resignation on 12 June 2020, consistent with the premise of the parties' understanding that she had resigned her employment.
For these reasons the Ground 3 of the appeal must fail.

Orders

The Full Bench makes the following orders: 1. Leave to appeal is granted. 2. The appeal is dismissed.

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: 05 April 2022

Teaching Services Act 1980(NSW)s 78

Police Act 1980(NSW)

Industrial Relations Act 1996(NSW)ss 84, 187, 188

Police Act 1990(NSW)ss 72, 94C

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (8)