[2014] NSWCA 409
Alison v Bega Valley Council [ (1995) 63 IR 68
[1995] NSWIRComm 175
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364
[2006] HCA 32
Commissioner of Police v Eaton (2013) 252 CLR 1
[2013] HCA 2
Commissioner of Police v Eaton (2011) 207 IR 209
Source
Original judgment source is linked above.
Catchwords
[2014] NSWCA 409
Alison v Bega Valley Council [ (1995) 63 IR 68[1995] NSWIRComm 175
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364[2006] HCA 32
Commissioner of Police v Eaton (2013) 252 CLR 1[2013] HCA 2
Commissioner of Police v Eaton (2011) 207 IR 209[2011] NSWIRComm 51
Eaton v Industrial Relations Commission of New South Wales (2012) 218 IR 289[2012] NSWCA 30
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89[2007] HCA 22
Ferdinands v Commissioner for Public Employment [2006] 225 CLR 130[1996] NSWIRComm 105
McDonald v Commissioner of Police (No 2) [2016] NSWIRComm 1032
Police Association v NSW Police (No 3) (2005) 144 IR 150
[2005] NSWIRComm 243
Police Service of New South Wales v Batton (2000) 98 IR 154
[2000] NSWIRComm 79
Quinn v Leathem [1901] AC 495
Saraswati v R (1991) 172 CLR 1
Judgment (15 paragraphs)
[1]
Police Service of New South Wales v Batton (2000) 98 IR 154; [2000] NSWIRComm 79
Quinn v Leathem [1901] AC 495
Saraswati v R (1991) 172 CLR 1; [1991] HCA 21
Category: Principal judgment
Parties: Christian McDonald (Appellant)
Commissioner of Police (Respondent)
Representation: Counsel:
Mr L King SC with Mr B Eurell (Appellant)
Mr M Seck (Respondent)
[2]
Solicitors:
Carroll & O'Dea Lawyers (Appellant)
K & L Gates (Respondent)
File Number(s): 2016/249109
Decision under appeal Court or tribunal: Industrial Relations Commission
Jurisdiction: Industrial Relations Commission
Date of Decision: 29 July 2016
Before: Murphy C
File Number(s): [2016] NSWIRComm 1032
[3]
Judgment
This is an application for leave to appeal, and if leave is granted, an appeal against a decision of Murphy C in McDonald v Commissioner of Police (No 2) [2016] NSWIRComm 1032 ('the impugned decision'). That decision followed an application brought by the appellant pursuant to s 84 of the Industrial Relations Act 1996 ('the Act').
On 10 June 2016, the respondent filed a Notice of Motion which contended that the Commission did not have jurisdiction to consider an application in circumstances where the applicant was a NSW police officer engaged by the NSW Police Force pursuant to the provisions of the Police Act 1990 (NSW) ('the Police Act'). Accordingly, the respondent sought an order that the application be dismissed pursuant to r 10.8 of the Industrial Relations Commission Rules 2009.
The Commissioner dismissed the application on the grounds pressed in the Notice of Motion.
The impugned decision was handed down on 29 July 2016. The present application was made within the time prescribed by s 189 of the Act.
The proceedings were conducted before a Full Bench of the Commission constituted by Walton J, then President, Stanton C and Newall C. During the course of the preparation of judgment it was decided that further questions needed to be raised with the parties. In the result, a Statement was issued by the Full Bench on 25 November providing a programme which ran beyond the commencement of the Industrial Relations Amendment (Industrial Court) Act 2016. The provisions of that Act allowed for the carry-over of non-judicial matters. Section 56(1) was amended to permit the Chief Commissioner to constitute a Full Bench of three members. Further, s 176 (1) provides that the Chief Commissioner may replace a member constituting the Commission (which includes a Full Bench) after the hearing has commenced if the member ceases to be a member before the matter is determined. On 9 December 2016 the Acting Chief Commissioner reconstituted the Full Bench to comprise Tabbaa C AM, Actg Chief Commissioner, Stanton C and Newall C. The Chief Commissioner has reviewed all the material and transcript in the matter. The reconstituted Full Bench has arrived at a unanimous decision
[4]
History of application
The appellant, a former Senior Constable, tendered his resignation to the respondent on 23 March 2016. The resignation took effect from 31 March 2016.
The appellant filed an application pursuant to s 84 of the Act on 21 April 2016 seeking re-employment to the position of Senior Constable. The appellant alleged that he had been constructively dismissed from his employment.
The appellant joined the NSW Police Force in August 2008 and graduated from the NSW Police Academy in August 2009. He was subsequently stationed at Newtown Police Station.
The appellant claimed that he was subject to bullying, harassment and related discrimination in the course of his employment from 2010 to March 2016. He further contended that he was subjected to an unwarranted investigation concerning his private after hours conduct which he alleged was discriminatory.
The appellant was diagnosed with a depression/anxiety related illness in December 2015 and was deemed by his general practitioner unfit for work. Shortly thereafter, he submitted a workers compensation claim. However, provisional liability was denied by the workers compensation insurer.
Upon his return to work on or about 8 February 2016, the appellant was assigned to a non-general duties position to undertake clerical work for a three week period. That position did not require the appellant to have contact with other officers located at Newtown Police Station.
The appellant claimed that in late February 2016, he was subjected to further hostile behaviour within the workplace. He was concerned that conduct may prevent him returning to his substantive position of Senior Constable.
The appellant also considered officers at Newtown Police Station would continue their unwarranted workplace behaviour unless he resigned.
The appellant subsequently took three weeks personal leave pending relocation to another police station. However, he was unfit to relocate due to his depression/anxiety condition.
Between 21 January and 29 March 2016, the appellant's legal representatives made various representations to the respondent seeking an assurance that measures would be taken to protect the appellant in the workplace. No such assurances were received.
On or about 22 March 2016, the appellant was advised that the insurer had denied his workers compensation claim. The appellant maintained that, due to his state of health, he still required medical treatment and asked the insurer whether he could see his doctor. In response to that request, the appellant contended that the insurer advised him that further medical treatment would not be funded and, it was put, suggested that he "quit and go on Medicare".
[5]
The Commissioner's Decision
The Commissioner dismissed the s 84 application. At paragraphs [87] and [88] of the impugned decision, the Commissioner stated:
[87] Part 9, Division 1C of the Police Act deals comprehensively with the process by which a police officer, who claims to have been unfairly dismissed, is able to seek redress. This process does not comprehend the notion of constructive dismissal. It would create unacceptable anomalies to allow an officer who resigns, and then claims to have been constructively dismissed, to have superior rights in relation to an unfair dismissal claim, than an officer who has been removed by order of the Commissioner.
[88] Adopting the approach of the High Court in Ferdinands and in Eaton, I find that the Commission does not have jurisdiction to hear and determine the applicant's application for relief in relation to unfair dismissal.
[6]
Grounds of Appeal
The following Grounds of Appeal were advanced:
1. The Commissioner erred in finding that Part 9, Division 1C of the Police Act 1990 deals comprehensively with the process by which a police officer, who claims to have been unfairly dismissed, is able to seek redress, such as to exclude relief available under the Industrial Relations Act 1996;
2. The Commissioner erred in finding that s 218 of the Police Act 1990 did not have the effect of preserving the jurisdiction of the Commission in relation to the application by Christian McDonald for relief under s 84 of the Industrial Relations Act 1996;
3. The Commissioner erred in the application of the High Court decision in Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130; [2006] HCA 5;
4. The Commissioner erred in his application of the High Court decision in Commissioner of Police v Eaton (2013) 252 CLR 1; [2013] HCA 2;
5. The Commissioner erred in failing to take into account the Commission's previous exercise of jurisdiction;
6. The Commissioner erred in determining that the Commission did not have the jurisdiction to hear or determine the application;
7. The Commissioner erred in dismissing the application.
[7]
QUESTION FOR DETERMINATION BY THE FULL BENCH
As the appeal proceedings developed, both the appellant and the respondent agreed that the question for determination by the Full Bench was to be expressed in this way:
Does the Commission have jurisdiction to hear an application brought under section 84 of the Industrial Relations Act 1996 by a former police officer who has resigned from the New South Wales Police Force by means of resignation validly effected under section 72(2) of the Police Act 1990 in circumstances where it is alleged that the former police officer was not the real and effective initiator of the termination of his position or employment in the New South Wales Police Force?
[8]
THE APPELLANT'S SUBMISSIONS
The appellant contended that his dismissal was not brought about by any decision of the respondent, but rather, "a dismissal by the service as such, based on the behaviour of other members of the workforce in the workplace. In effect, driving an individual out".
The appellant sought to challenge the reasoning of the Commissioner set out at [29] of the impugned decision where he determined that "a police officer who was removed from the service had no right to pursue an unfair dismissal application in the Commission".
At [30], the Commissioner stated:
It is highly unlikely that the legislature intended, at this time, that a police officer who resigned before being removed by the Commissioner, could pursue an unfair dismissal application in the Commission on the basis of an alleged constructive dismissal, whereas an officer who had been removed from the force was, despite section 218 of the Police Service Act, clearly precluded from doing so.
The appellant contended that the Commission's jurisdiction to determine his constructive dismissal claim under Chapter 2, Part 6 of the Act was unaffected by Part 9 of the Police Act. In support of that proposition, reliance was placed on the reference to "any public sector employee" in s 83(1)(a) and the definition of "public sector employee" in the dictionary of the Act, which is defined to include:
…an employee of a public authority and a member of the Public Service, the New South Wales Police Force, the NSW Health Service or the Teaching Service…(emphasis added in underlining)
The appellant submitted that the matter did not involve an order of the respondent of a kind that would be affected by s 405 of the Act. That said, the appellant contended that the Commission's jurisdiction remained unaffected, given s 218 of the Police Act which states:
1. The Industrial Relations Act 1996 is not affected by anything in this Act.
2. Subsection (1) does not limit section 44 or 88 or any provisions of the Industrial Relations Act 1996.
The appellant sought to rely upon four decisions of the Commission to support the proposition that the Commission had jurisdiction to consider unfair dismissal applications made by sworn police officers who have alleged they were constructively dismissed. Those precedents were:
1. Police Association v NSW Police (No 3) (2005) 144 IR 150; [2005] NSWIRComm 243 per Boland J;
2. Police Service of New South Wales v Batton (2000) 98 IR 154; [2000] NSWIRComm 79 per Wright P, Hungerford J, Connor C;
3. Marcus Lewandowski v NSW Police Force [2009] NSWIRComm 28 per Kavanagh J; and
4. McCabe v NSW Police Service (1996) 99 IR 361; [1996] NSWIRComm 105 per Cahill VP, Hill J and Connor CC.
[9]
"181D Commissioner may remove police officers
1. The Commissioner may, by order in writing, remove a police officer from the NSW Police Force 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:
1. 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
2. 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
3. must take into consideration any written submissions received from the police officer during that period.
1. The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force.
2. The removal takes effect when the order is made.
3. (Repealed)
4. (7) Except as provided by Division 1C:
1. no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and
2. 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 the Industrial Relations Commission.
1. (7A) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action.
2. (7B) Nothing in Division 1C limits or otherwise affects the Commissioner's power to vary or revoke an order in force under this section.
1. (8) For the purposes of this Act, removal of a police officer from the NSW Police Force 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 NSW Police Force.
2. (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." (Emphasis added)
[10]
THE RESPONDENT'S SUBMISSIONS
The respondent submitted it had no general power of dismissal. The respondent may remove or terminate a police officer without their consent pursuant to s 181D of the Police Act. Section 72 also makes provision for resignation in defined circumstances.
The Police Act seeks to balance the competing rights and interests that exist between the respondent and the officers of the NSW Police Force, having regard to the various mission statements and objects, the Statement of Values together with the command and hierarchical structure that exists under that Act. Moreover, Pt 8A of the Police Act also contains a comprehensive regime to deal with complaints.
The Police Act represents a comprehensive statement and an exclusive regime concerning the powers of the respondent to terminate the employment of confirmed or non-executive police officers. It must therefore follow that the Police Act represents a comprehensive statement concerning the remedies available to affected police officers with respect to termination of employment.
The respondent submitted the intention of Parliament was that the Police Act should provide the sole basis for the appointment, discipline and termination of both probationary and confirmed or non-executive police officers. Parliament intended that regime to operate exclusively in matters related to termination of employment. There was no intention to confer unfair dismissal rights in respect of alleged constructive dismissal or any other kind of dismissal under Ch 2, Pt 6 of the Act upon confirmed or non-executive police officers.
In support of the above proposition concerning statutory intention, the respondent contended that Pt 9 of the Police Act (Entitled "Management of Conduct within NSW Police Force") established an exclusive regime dealing with the conduct and performance of police officers and, their respective rights and available remedies following the removal by the respondent. That statutory intention was to exclude police officers from the unfair dismissal provisions contained in Ch 2, Pt 6 of the Act. In other words, the intention of Parliament was for Pt 9 of the Police Act to cover the field insofar as the appointment, discipline and termination of both probationary and confirmed police officers was concerned. That intention was unconditional.
Accordingly, s 181E of the Police Act provided the sole basis upon which a police officer removed from the NSW Police Force by order under s 181D may apply to the Commission for a review of that order on the ground that their removal was harsh, unreasonable or unjust.
[11]
72 Vacation of non-executive police officer positions
1. A non-executive police officer's position becomes vacant if the officer:
1. dies, or
2. completes a term of office and is not appointed for a further term, or
3. is removed from office, or retires or is retired from office, under this or any other Act, or
4. resigns his or her position in writing addressed to the Commissioner, or
5. abandons his or her employment in the NSW Police Force.
1. The retirement or resignation of a non-executive police officer does not take effect until:
1. the Commissioner accepts the retirement or resignation, or
2. 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.
The respondent contended that the provisions of s 72 of the Police Act precluded a confirmed police officer, who has resigned from the police force, from subsequently claiming constructive dismissal.
Section 72 of the Police Act does not mention the term "dismissal". Section 72(1) (c) and (d) relevantly state that a police officer may be "removed from office", retire" or "resign" their position in writing to the respondent.
Section 72(2) of the Police Act provides that a resignation takes effect when it is accepted by the respondent or, within four weeks of the notice being given. Accordingly, the question of whether or not the resignation was forced or voluntary is an irrelevant consideration.
The respondent also referred the Full Bench to s 79 of the Police Act which relevantly states:
79 Powers of dismissal, removal and suspension not affected
Nothing in this Division limits or otherwise affects any power under this Act to dismiss, suspend or remove a non-executive commissioned police officer.
(Emphasis added in underlining)
The respondent contended that the words "under this Act" appearing in s 79 of the Police Act suggested that any right or power to dismiss, suspend or remove a confirmed police officers position must arise pursuant to the provisions of the Police Act.
Section 181D(7) of the Police Act specifically excludes a police officer from making an application to any tribunal, including the Commission, to review any decision of the respondent to remove that officer except as provided under Div 1C of Pt 9 of the Police Act. Section 181E provides the sole basis upon which a police officer removed by the respondent may apply to the Commission for a review of that order on the ground that the removal was harsh, unreasonable or unjust. Otherwise, decisions taken by the respondent pursuant to s 181D (and s 173) may only be subject to judicial review by the Supreme Court.
[12]
LEAVE TO APPEAL
The principles in relation to the granting of leave to appeal were recently canvassed in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services (2015) 250 IR 412; [2015] NSWIRComm 16 where the Full Bench observed at [10] and [11]:
[10] It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal.
[11] The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263:
[5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) [1999] NSWIRComm 576; (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407 at [52] - [55] and Knowles at 381 - 382) 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" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price [2000] NSWIRComm 117; (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5].
(See also the recent decision in Raveena Singh Rai v State Transit Authority of New South Wales [2015] NSWIRComm 27 which referred to the decision in New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Liverpool City Council [2014] NSWIRComm 17).
[13]
CONSIDERATION
It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: Saraswati v R (1991) 172 CLR 1; [1991] HCA 21 at 17 per Gaudron J. The exercise is one of statutory construction, requiring close attention to the particular provisions of the two Acts: Ferdinands at [138] per Gummow and Hayne JJ.
In Ferdinands, the Commissioner of Police terminated the appointment of a police officer following a conviction of assault. That officer subsequently made an application to the Industrial Relations Commission of South Australia for a determination that his dismissal was harsh, unreasonable or unjust pursuant to the Industrial and Employee Relations Act (SA), where it was argued that the Commission's jurisdiction extended to all public service employees in the State, except those specifically exempt from the relevant unfair dismissal provisions. No exemption applied to members of the Police Force.
The majority in Ferdinands held that the Police Act (SA) implicitly excluded the operation of the Industrial and Employee Relations Act (SA). They considered that s 40 of the Police Act (SA) which provides a range of powers to the Commissioner of Police, extending from counselling to termination of appointment where an officer is found guilty of a State, Territory or Federal offence, was incompatible with the provisions of the Industrial and Employee Relations Act 1994 (SA).
The decision in Ferdinands also held that s 40 of the Police Act (SA) should be read as a comprehensive statement of the Commissioner of Police's powers to terminate an officer's appointment, the matters the Commissioner is required to take into account in the exercise of that power and the availability and the processes for review. At [148], Callinan J held:
The respondent's submissions…that the Police Act constitutes a self-contained scheme for challenges to decisions of the Police Commissioner. That submission should be accepted. That it is correct follows from the detailed provision that the Police Act makes for all aspects of the engagement and disciplining of members of the force, and by reason of the nature of the duties and obligations of police officers…
[14]
DISPOSITION OF APPEAL
The appellant has not made out an arguable case for intervention by the Full Bench. The relevant law has been correctly identified, considered and applied. Murphy C correctly dismissed the appellant's application pursuant to s.84 for want of jurisdiction. No error has been disclosed.
[15]
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: 23 December 2016
Parties
Applicant/Plaintiff:
McDonald
Respondent/Defendant:
Commissioner of Police
Legislation Cited (13)
Crown Employees Appeal Board Act 1944(NSW)
Government and Related Employees Appeal Tribunal Act 1980(NSW)
The appellant advised Ms Robyn Hutchinson, Local Area Manager, of his resignation effective 31 March 2016 by email dated 23 March 2016. A current medical certificate was attached to that email. Ms Hutchinson advised the appellant by return email on 23 March 2016 that his resignation had been accepted.
The appellant then, as we note above, made application to this Commission pursuant so s.84 of the Act. It was within that context that the impugned decision was made.
The appellant contended that in Police Association v NSW Police (No 3), Boland J gave detailed consideration to the precise question to be determined in this appeal. That decision dealt with constructive dismissal and his Honour determined the Commission's jurisdiction under Ch 2, Pt 6 of the Act with respect to the dismissal of police officers was not impaired by the operation of s 218 of the Police Act.
The appellant further contended that post Eaton, if the conclusion reached by Boland J was incorrect, the error was only one of extension of s 218 of the Police Act "beyond its proper limits, not of complete misapplication".
The appellant submitted that section 181D of the Police Act was limited in its operation to circumstances where the respondent has, by order in writing, removed a police officer from the NSW Police Force in circumstances where he 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. Section 181D is in the following terms:
The appellant submitted that the respondent erred in determining that the provisions of s 181D precluded him from pursuing an unfair dismissal application before the Commission. The respondent had not issued an order in writing as required by provisions of s 181D(1). The respondent also failed to consider the words, 'under this section' and, 'or order of the Commissioner under this section' appearing in s 181D(7)(a) and (b).
The appellant contended the Commissioner in the impugned decision did not properly consider the decisions of the High Court in Ferdinands and Eaton. The decision in Ferdinands was factually and legally distinguishable from the present case and the Commissioner's reasoning at [48] was speculative:
Although it does not appear that the specific issue of constructive dismissal was considered in this case, it seems highly unlikely, given these comments by the Chief Justice, that his Honour would have considered that incompatibility between the two schemes would not have arisen in the case of a constructive dismissal claim by a police officer before the Industrial Relations Commission of South Australia.
The appellant contended that the decision of the High Court in Eaton was authority for the proposition that s 218 of the Police Act did not preserve the Commission's jurisdiction in every case. The Commission had no jurisdiction in circumstances where a confirmed police officer was summarily removed by the respondent pursuant to s 181D. Similarly, s 80(3) of the Police Act conferred upon the respondent an unfettered power to dismiss a probationary police officer without recourse to any review by the Commission.
The appellant submitted that the Commissioner's finding at [87] of the impugned decision, that a police officer facing removal under s 181D, who resigned and subsequently claimed constructive dismissal before the Commission, "would enjoy a right of review superior to that of any police officer" who had been removed by order of the respondent was erroneous.
It was submitted that the legislative scheme intended Ch 2, Pt 6 of the Act to apply to all public sector employees generally, including police officers. The legislative framework supported the appellant's contentions and the decisions in Ferdinands and Eaton do not affect that submission, that a confirmed police officer who has been constructively dismissed in a harsh and unconscionable fashion cannot be left without remedy.
By leave of the Commission, the appellant filed further written submissions on 10 November 2016 going to the question of constructive dismissal. The respondent advised that it did not wish to address these submissions.
Those submissions accepted that a valid resignation had been furnished by the appellant and accepted by the respondent. We interpose that in our view that concession is properly made. On the evidence, there was a valid proffering of a resignation and a valid acceptance of it. A delegated statutory function was therefore validly carried out.
However, the appellant then contended that if a valid resignation was furnished 'involuntarily', then the cessation of employment effected by that resignation may amount to a constructive dismissal. We address this point below.
On 25 November 2016 the Full Bench again addressed the parties and offered an opportunity for further submissions on the question at the heart of this appeal, the nature of constructive dismissal. In effect, what was sought was a further submission as to whether the respondent "had the power to dismiss a police officer either generally or as an alternative source of power to the powers residing in the Commissioner under Pt 9 of the Police Act".
Further submissions were received from the appellant on 5 December 2016.
The essence of those submissions was that the question posed by the Full Bench on 25 November went to a question of the lawfulness of the termination of the employment, and that that approach diverted attention from the real inquiry, which was whether the appellant was able to establish by evidence that he was unfairly dismissed.
We agree that the question for determination in any application under s.84 of the Act is not the lawfulness or otherwise of a termination, although if a termination were unlawfully effected that might be a matter that bore on the assessment required in Pt 6 matters.
However, it must be remembered that the impugned decision was one made in response to an assertion, and a motion based on it, that there was no jurisdiction to address the application. In that context Murphy C was not, and the Full Bench is not, concerned with questions of the lawfulness of the termination. Rather, the question is whether Murphy C was correct to find that no jurisdiction lay to hear and determine the application. It is in that context that the Full Bench must consider whether there can be, at law, a dismissal effected by the respondent by the means asserted by the appellant. If there cannot be a dismissal effected by the respondent in the manner that the appellant asserts, that is, constructively, there can be no dismissal, and therefore no jurisdiction.
We address those submissions as part of our address to the whole matter below.
To afford a police officer who had resigned and subsequently argued constructive dismissal access to a remedy under Ch 2, Pt 6 of the Act would place that police officer in a better position than a police officer removed by the respondent pursuant to s 181D. That was demonstrably not the intention of Parliament when Pt 9 of the Police Act was enacted.
In this matter, the appellant resigned in writing in accordance with the requirements of s 72(1)(d). That resignation was subsequently accepted in accordance with the requirements of s 72(2)(a). The respondent's role in relation to the appellant's resignation was confined to his acceptance of that resignation pursuant to s 72(2)(a).
Section 72 of the Police Act prescribes the statutory methods whereby a police officer's employment may come to an end. Positions become vacant where an officer dies, completes a term of office and is not reappointed, is removed, retires or is retired from office, resigns his or her position in writing or abandons his or her employment:
Section 72 is in the following terms:
Section 181D(8) provides the removal of a police officer from the NSW Police Force 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 NSW Police Force. This provision concerns superannuation benefits of police officers.
Moreover, s 181F(2) provides that the burden of establishing that a police officer's removal from the NSW Police Force was harsh, unreasonable or unjust lies with the appellant.
The respondent contended s 218 of the Police Act was no more than a savings provision. In Commissioner of Police v Eaton (2011) 207 IR 209; [2011] NSWIRComm 51, the Full Bench at [61] - [63] determined that s 218 did not operate to preserve the application of the provisions of Ch 2, Pt 6 of the Act, which were displaced by the provisions contained in Part 9 of the Police Act.
The respondent sought to rely upon the decision of the High Court in Ferdinands to support the proposition that the Police Act operates to the exclusion of Ch 6, Pt 2 of the Act. The decision in Ferdinands dealt with the test for inconsistency between the provisions of the Industrial and Employee Relations Act 1994 (SA) and the Police Act 1998 (SA).
The High Court decision in Eaton considered the interrelationship between the Act and the Police Act. Section 80(3) of the Police Act empowered the respondent to dismiss any probationary police officer "at any time and without giving any reason." The question before the High Court was whether a decision made under s 80(3) of the Police Act could be challenged under s 84 of the Act.
The majority of the High Court in Eaton held, in effect, that there was no jurisdiction for the Commission under s 84 of the Act to hear applications by persons dismissed pursuant to s 80(3) of the Police Act.
Accordingly, the appellant's reliance on the reference to "any public sector employee" in s 83 (1)(a) of the Act and the inclusion in the dictionary of the words "an employee of the NSW Police Force" in the definition of "public sector employee" were irrelevant.
There was no real contest concerning leave to appeal in this matter. The respondent neither opposed, nor consented to, leave being granted. Nonetheless, there was a proper basis for the grant of leave.
The respondent did not cavil with the suggestion that the appeal raised an issue of law that has implications for the jurisprudence of the Commission. However, the respondent questioned whether or not the appeal would have widespread practical application given the limited number of reported judgements that concerned circumstances where a police officer had claimed constructive dismissal.
The jurisdictional issue raised by this appeal has significant implications for this area of the Commission's jurisdiction given the appeal raises questions about the relationship between the Act and the Police Act, the resolution of which will affect the rights to unfair dismissal remedies for employees who resign as police officers - a not uncommon occurrence in both the general operation of the Police Force but also its disciplinary processes.
Neither the appellant nor the respondent considered that the nature of the appeal sought to challenge any finding of facts.
We see no basis to depart from the principles enunciated above in relation to the grant of leave. We grant leave to appeal.
The decision of the High Court in Eaton held the removal of a probationary police officer under s 80(3) of the Police Act was excluded from the jurisdiction of the Commission. Such officers are precluded from making an unfair dismissal application under s 84 of the Act. The majority also considered the potentially anomalous situation that would result if probationary police officers were afforded a remedy under s 84 of the Act when confirmed officers have no such rights under the Police Act.
We consider the Commission is bound by the decisions of the High Court in both Ferdinands and Eaton and those authorities supersede the earlier decisions of the Commission pressed by the appellant to ground jurisdiction. We further consider that the precepts in those two decisions have direct application to this case.
As to the appellant's submission concerning s.218 of the Police Act, that section is a savings provision and does not, contrary to the appellant's submission, operate to preserve the provisions of Ch 2 Pt 6 of the Act. Squarely put, the legislative intention of Pt 9 of the Police Act was to displace the operation of Ch 2 Pt 6 of the Act in relation to police officers.
We note, as we have said above, that the way in which this employment actually came to an end was by the appellant giving effective notice, which the respondent, it is common ground, validly accepted within the terms of the Police Act. There is no suggestion that what occurred was not a valid resignation validly accepted.
By accepting a resignation validly offered, the respondent concluded a transaction which has a statutory validity.
To construe the Police Act to have the effect that a validly accepted resignation pursuant to an express statutory provision could later be characterised as other than valid would be an anomalous or inconsistent construction. This stands very much against the proposition that an officer who resigns could be held to be dismissed.
But there is in our view a yet more compelling consideration against that proposition.
While there may be slight differences in the words used in the various formulations of the concept of a constructive dismissal, it is entirely clear that for a constructive dismissal to occur, the employer must be the real and effective terminator of the employment contract, so that the employee is seen to be dismissed by the employer. The employer must dismiss the employee for s 84 of the Act to be enlivened.
Here, it is difficult to see that a dismissal, however characterised, can be identified at all. First, the employer did not purport to dismiss the employee. Second, the employer did not have any power to dismiss the employee. It is common ground that Pt 9 of the Police Act was not called in aid by the employer, and that it does not apply to the appellant's circumstances.
It is apparent from the legislative history that the Parliament had a very clear intention to remove from the respondent any means to dismiss officers other than in accordance with the provisions of s 181D of the Police Act. Pt 9 of the Police Act constitutes, it is quite clear, a comprehensive code addressing the manner in which the respondent, as the employer, can bring an employment contract of this kind to an end.
If the respondent cannot dismiss an officer other than in accordance with Pt 9 of the Police Act, it is difficult to see that the respondent could constructively dismiss an officer. It was not suggested that the respondent had constructively "removed" the appellant, and given the specific procedural requirements of s 181D, it is obvious that a "removal" could not be effected constructively.
Dismissal is a power that resides in employers at large. It is against the existence of that power to dismiss that the concept of constructive dismissal is erected; that is, the employer, by other means than the direct, exercises a power it possesses. The respondent does not possess a power to "dismiss". He cannot therefore exercise that power by other than direct means, or constructively.
That determines the matter. But that conclusion is a fortiori when it is considered that were it otherwise, an officer who resigned and claimed a constructive dismissal would have superior rights to an officer removed under s 181D. Such an outcome would be the kind of absurdity or inconsistency that the canons of statutory interpretation stand squarely against.
That brings us to the appellant's additional submission, that a valid resignation may yet be a dismissal if it were furnished involuntarily. The necessary effect of that would be that an officer who asserted that circumstance would have superior rights to an officer removed under s 181D. That would be an anomalous outcome of the same nature as that which the High Court squarely rejected in Eaton. Even apart from the other matters to which we advert above, that is sufficient to defeat the proposition advanced by the appellant.
Remembering that the question for determination in this appeal, as both counsel agreed in the course of proceedings, is this:
Does the Commission have jurisdiction to hear an application brought under section 84 of the Industrial Relations Act 1996 by a former police officer who has resigned from the New South Wales Police Force by means of resignation validly effected under section 72(2) of the Police Act 1990 in circumstances where it is alleged that the former police officer was not the real and effective initiator of the termination of his position or employment in the New South Wales Police Force?,
The answer is "No".