On 1 June 2022, the respondent issued an order, which I will call "the Order", pursuant to s 181D(1) of the Police Act 1990 New South Wales, "the Act", removing the applicant from the NSW Police Force, here on in I will refer to as "the Force". The Order arose from the applicant's failure to abide by a direction made by the respondent in relation to COVID-19 vaccinations, which I will call "the Direction".
The applicant has sought a review of the Order by way of an application made in accordance with 181A of the Act, on the ground that the Order was and is harsh, unreasonable or unjust "the Application".
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Background
The following background falls from the materials that have been filed in the Commission and from some of the submissions that have been made today.
The applicant commenced with the Force on 17 December 2010 and, as at the date of the Order, he held the rank of senior constable and was stationed at Oberon Police Station.
The Direction was made on 7 September 2021 and again it is reiterated on a number of occasions and that direction by the respondent was that all members of the Force were required to (1) have received at least one dose of the COVID-19 vaccination by 30 September 2021; (2) at least two doses of a COVID-19 vaccination by 30 November 2021; or to present a valid medical contraindication certificate; or apply for and receive a special exemption based on special circumstances.
On 9 September 2021, the applicant supplied a medical contraindication certificate from a local GP based in Oberon, which provided for a temporary contraindication of three months. The stated medical condition was "significant family cardiovascular history, wishes to seek specialist advice".
The applicant continued to perform normal duties up until around 14 October 2021, following which he went on paid leave.
The medical contraindication expired on 9 December 2021. It was not until 23 March 2022 that the applicant was served with a s 181D(3)(a) show cause notice for failure to comply with the direction. The applicant, through his then solicitors, replied to the show cause notice, on 13 April 2022 and the Order was then made.
This application was the subject of an unsuccessful conciliation on 16 June 2022.
Following the conciliation, directions were made for the filing and serving of witness statements and outlines of submissions, in-chief, then for the respondent, and then for the applicant to file materials in-reply.
The applicant filed some documents on 28 March 2023, but did not file a witness statement nor outline of submissions at that stage. The respondent filed a summary of case on 26 April 2023 and the applicant did not file any reply materials.
The matter was listed for compliance hearing on 10 May 2023, which the applicant did not attend.
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Approach
Now, the approach that I take to matters of this nature are set out in s 181F, and is as follows:
1. The Commission is required to consider the Commissioner's, ie the respondent's reasons for the decision to remove the applicant from the Force;
2. I am then required to consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust.
3. Consider the case presented by the Commissioner in answer to the applicant's case.
S 181F of the Act also places a burden of proof on the applicant to establish that the removal was harsh, unreasonable or unjust at all stages. There is also a requirement that in undertaking the exercise the Commission is to the interests of the individual against the public interest.
The respondent, made a number of submissions with reference to the relevant cases, including the NSW Police Force v Zisopoulos [2020] NSWCA 236, 299 IR 314; Tredinnick and Commissioner of Police [2016] NSWIRCom 14; and Bolton and Commissioner of Police [2021] NSWIRComm 1055.
From these cases, the following matters are relevant in terms of my consideration, the first being that the applicant in establishing the onus at all times, that onus never shifts to the respondent and if the applicant challenges the findings of fact that are set out in the statement of reasons, or otherwise makes his own factual assertions, then it falls to the applicant to make good those contentions on his own evidence.
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The Reasons
Turning now to the first matter that I need to consider and that is the Commissioner's reasons.
The reason relied upon by the respondent to issue the Order is set out in the Order. Shortly stated, they are along the lines of the Commissioner was satisfied, on reasonable grounds, to conclude that the applicant had deliberately chose not to comply with the direction of former Commissioner Fuller, dated 7 September 2021 and a further direction of 25 September 2021. It goes on to say that, in particular, the applicant failed to receive both doses of the COVID-19 vaccination within a specified time period and/or failed to provide evidence of a vaccination status, or a medical contraindication.
Now, the Police Commissioner relied on or said that the conduct was contrary to the Police Act 1990 and the Police Regulations 2015 and the WHS Act, being the Work Health and Safety Act and the NSW Police Force Code of Conduct and Ethics.
In this matter, the particulars of each of those alleged breaches is not relevant.
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Applicant's Case
Turning to the applicant's case, the applicant rightly conceded that he did not consider the Order was unlawful or unreasonable and how it applied in an overall sense to the entirety of the Force. Rather, it was unfair in how it applied to himself.
There was a number of bases on which he alleged that the application and the direction was unfair. The first was it failed to take into account the potential risk to his health and safety and this was based on an asserted significant family cardiovascular history, stretching back for three generations and that included his father who had an alleged reaction to a second COVID vaccination dose. That information fell from both the reply, which was in evidence and also the Commissioner's reasons. That is as high as that evidence goes.
Secondly, it was asserted that the risk assessment was flawed and then, following that, he was unfairly treated and being directed to work at Lithgow Police Station during the period of his temporary medical contraindication. Another basis that was provided was that he was not sent to the Police Medical Officer when he was told he was going to be.
Another basis was that the termination was disproportionate to the alleged misconduct when compared to his treatment following the dangerous driving incident on 18 April 2014, during which the applicant whilst off duty reached speeds of 120km/hr on a motorcycle whilst pursued by police officers.
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Respondents Case
In short, the respondent's case, primarily, was that the applicant, in failing to adduce any evidence to support his assertions that the Order was harsh, unreasonable and/or unjust, had failed to meet the onus required of him and, on that basis, the application should be dismissed.
However, the respondent also submitted that he, the applicant, could make good some or all of the alleged factual claims the Order was not harsh, et cetera, as he had failed to abide by a direction or the direction which had been found in any number of cases of this Commission to be lawful and reasonable. When I said "any number", I should have said "eight cases", including those that I have found in Welch v Commissioner of Police [2023] NSWIRComm 1002, Bowes v Commissioner of Police [2023] NSWIRComm 1049 and Ford v Commissioner of Police [2023] NSWIRComm 1014.
Furthermore, the respondent says that, in terms of the issue of family history of cardiovascular matters, the applicant's concern about his own health, the applicant pointed to the applicant's response in his show cause letter, which I will read out, which is the applicant called the specialist practice in October 2021 to see if he could be seen earlier and was told by the receptionist that the specialist had refused to see him and sent the referral back to his GP with a note, "Will not see this patient and advice is to get the vaccination". He then called the rooms of specialists in Sydney who all provided the same response.
As to the issue as to summary of the response to unfairness, following the risk assessment, there is a number of submissions made but one also included the respondent pointed to the offer to the applicant to be based in Bathurst, rather than Lithgow, and this was in response to the applicant himself, in an email, the date of which I will reproduce in the published decision, making an enquiry about the capacity to be placed at Bathurst, which he then immediately withdrew.
Now, as to the issue about the referral to the PMO, the respondent pointed again to an email of which the exact date I will replicate and will put in the published decision, which clearly indicates that the applicant had no intention in seeing the PMO and as to disproportionate, when compared to the dangerous driving offence, the respondent submitted that it was not only a warning that was handed out, it was a two year reduction in rank and also the respondent made a number of submissions about how the applicant's pointing towards that incident as being disproportionate is contrary to the submissions made on the applicant's behalf in his own show cause, which sought to describe the dangerous driving as a minor event.
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Determination
Turning to my decision, even accepting that the applicant is self-represented, I have found it troubling that he has made little or no attempt to make good his assertions that the Order was unfair. He has not put on any witness statements supporting his assertions or any other documents that would make good a number of the important factual assertions, including those concerning his family medical history.
I find that in failing to put forward this evidence he has not met the onus and, on that basis alone, the application is dismissed.
I also find that the asserted basis for a finding that the Order was harsh, unreasonable or unjust do not provide sound basis for finding that the order was harsh, et cetera.
As to the family history, to the extent that there is any evidence at all is that the experts have advised the applicant he should get vaccinated. I agree with the respondent's submissions that the applicant was treated fairly following the risk assessment.
As to the applicant's submissions concerning disproportionate, firstly, this is not necessarily a ground which is readily accepted in this Commission or the Fair Work Commission as a basis for finding the dismissal harsh. In any event, the failure of the respondent to not dismiss the applicant for the dangerous driving incident, is not a matter that renders the Order harsh, unreasonable or unjust.
In terms of harshness, the following passage from Welch is appropriate to this Application:
That the removal of the applicant from the NSWPF is harsh, is beyond doubt, however the removal was as a result of the applicant's deliberate failure to abide by a Direction of the respondent. It would be expected that members of the NSWPF would abide by such directions and particularly so in relation to matters concerning issues of safety.
For the above reasons I find that the applicant has not made out his case and that the Order for the applicant's removal from the force was not harsh, unjust or unreasonable and accordingly I order that the Application be dismissed.
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Decision last updated: 15 June 2023