d) that the Leading Senior Constable appointment be reinstated because the Review Panel validly concluded that the sustained finding was in breach of SC Sharman's performance agreement.
53 He said the Commission would conclude that a further review by the Executive Director, Human Resources had occurred and the advice sought on cl 12 was not a review of the Leading Senior Constable appointment, but a review of the procedure.
54 Mr Quinn submitted that the Force may be prepared to consider reconstituting the Review Panel on the basis that cl 12 did not apply and subject to SC Sharman's clarification as to whether further information would be submitted by him.
55 In oral submissions, Mr Quinn put that even though the dispute resolution procedures in the Award had not been followed, the Force's Industrial Branch had attempted to look for any miscarriage of justice in the process of Review. There was none. SC Sharman had not challenged the investigation of the incident. However, the Association now sought to argue that the Review Panel should reinstate the Leading Senior Constable status for a different reason than was previously advocated. Mr Quinn said a valid finding of poor performance had been made, his actions were contrary to the Senior Constable's performance agreement and the decision was never shown to be wrong. The Local Commander had, in fact, already examined the sick leave issue before the Review commenced and had rejected Sergeant Hannon's interpretation of cl 12.
56 Mr Quinn put that Sergeant Hannon's interpretation of cl 12 was wrong for three reasons: firstly, it was never the intention that cl 12 would operate in the manner contended for by Sergeant Hannon; secondly, Mr Jenson's unchallenged affidavit establishes that fact; and thirdly, the sick leave issue was now well and truly settled. Mr Quinn put that if there were mitigating factors, then SC Sharman bears the onus of establishing them, notwithstanding he had been represented, at all times, by Sergeant Hannon. Mr Quinn put that it cannot be right that an employee can derive a benefit from an argument which is shown to be false. Moreover, the additional material cannot now be relied upon to bring about a different result from the Review Panel.
57 Mr Quinn submitted that it would appear that SC Sharman had accepted the investigator's findings because it had also exonerated him of a second allegation of assaulting a prisoner. The Commander was properly informed of the issues and made the correct decision, following a long investigation. He did not take any pre-emptive action against SC Sharman. In any event, Mr Quinn submitted that the LSC Guidelines do not prevent or limit the Director, Human Resources from making a decision as he sees fit, including as to merits.
58 Mr Quinn explained that SC Sharman's real loss was around $2,500pa, as he could have reapplied in November 2007 to have his status restored after six months. The fact he could not do so because he was on sick leave was unfortunate, but out of the control of the Force. In any event, Mr Quinn put that the penalty was at the very low range of penalties for his conduct.
59 Mr Quinn said that the Force's primary submission was that there had been no breach of the Award or the LSC Guidelines and the Commission should not intervene in this dispute. However, if the Commission was minded to intervene, it should do no more than recommend a second review panel which might consider all relevant matters, including the seriousness of the incident and any mitigating factors SC Sharman might rely upon. However, the sick leave issue cannot be a relevant factor in any further review.
60 Mr Quinn added that if the Leading Senior Constable status was restored, Management reserved the right to revisit the penalty of a warning notice arising from the disciplinary action, because the Leading Senior Constable revocation was considered in the context of the penalty to be applied, even though they were two different processes.
61 In reply, Mr Spring asked the Commission to give weight to the evidence of SC Sharman and Sergeant Hannon as to the issue of the locks and the keys relevant to the incident. Mr Spring said no point should be taken with the second allegation against SC Sharman for which he was exonerated. It was irrelevant.
CONSIDERATION
Jurisdiction of the Commission
62 Before considering the substance of this matter, I would wish to make it clear that I intend to make recommendations in this dispute pursuant to s 136(1)(a) of the Act. I do not believe I have jurisdiction to make 'determinations' as submitted by Mr Spring in his written submission (see par 47). In reaching this conclusion, I would firstly observe that there is no relief available under s 136 of the Act of a kind which can be characterised as a 'determination'. In the arbitration of a dispute, the Commission is only empowered to make a recommendation or direction (ss(a)), or an order (ss (c) and ss (d)) or make or vary an award (ss(b)). Secondly, the notion of the Commission making a determination of the kind proposed, would seem to me to be akin to asking the Commission to make a declaration of a right. Such relief would only be available under the declaratory jurisdiction of the Commission under s 154 of the Act. Of course, that jurisdiction is only exercisable by the Industrial Court, and consequently, would not be available to the Commission, as presently constituted.
63 That said, I note that both parties have accepted that the Commission is seized with jurisdiction to make recommendations under s 136(1)(a) of the Act. In doing so, I accept that neither party has specifically put that they will accept, or be bound by the Commission's recommendation. Indeed, Mr Quinn has stressed that the Force would reserve its rights on any future binding outcome. Be that as it may, (and I do not quibble with the qualification) it has been my experience that recommendations of this Commission, particularly involving disputes between experienced registered organisations, are invariably accepted. Accordingly, I would expect no less than a serious and considered response be given to the recommendations I will make in this dispute.
The issues to be considered
64 Turning then to the merits of the dispute, it will be obvious to any interested observer that this is a most unusual and unique dispute. As I apprehend it, there is no relevantly comparative set of circumstances which has been the subject of consideration by, or authoritative decision of the Commission. It is noted that both parties acknowledged that the issue here in dispute was not foreseen, let alone considered when the LSC Guidelines were developed in 2001. This becomes a relevant factor when determining the issue; a matter I will come back to shortly.