Police Association of New South Wales v Commissioner of Police

Industrial Relations Commission (NSW)|2019-10-01

INTERLOCUTORY Judgment

On 20 August 2019 the Police Association of New South Wales ("Association") filed with the Office of the Industrial Registrar a notification of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW) ("Notification"). The Notification arose from decisions made by the Commissioner of Police, through his delegate, to medically discharge Sergeant Neal Snowden and Senior Constable Rachael Hill from the NSW Police Force, with effect from Thursday, 22 August 2019.
Through the Notification the Association sought to prevent the decisions to medically discharge the officers from taking effect. The Notification requested an interim order that the Commissioner of Police not medically retire Sgt Snowden or SC Hill pending the determination of these proceedings, and a final order that the Commissioner of Police not medically retire either Sgt Snowden or SC Hill.
On 21 August 2019 the Association filed with the Registry an Application for Orders seeking the interim orders foreshadowed in the Notification.
On 21 August 2019 I convened a compulsory conference between the parties. It was not possible to reach a conciliated outcome of the dispute. Consequently, also on 21 August 2019 I issued a certificate of attempted conciliation pursuant to s 135 of the Industrial Relations Act.
The hearing of the Association's application for interim orders took place on 1 October 2019. The Association was represented by Mr A Slevin of counsel. Mr D Mahendra of counsel appeared on behalf of the Commissioner of Police.
The Association read the following: 1. two statements of Sgt Snowden dated 4 and 26 September 2019 respectively; 2. two statements of SC Hill dated 4 and 26 September 2019 respectively; 3. a statement of Aileen Fleming, an Acting Industrial Officer with the Association, dated 4 September 2019; 4. a statement of Jonathan Goddard, a Lead Organiser with the Association, dated 27 September 2019; and 5. a statement of Peter Richardson, an Industrial Officer with the Association, dated 26 September 2019.

Factual context

Sergeant Snowden commenced employment with the NSW Police Force on 22 December 1998. He is currently attached to the Tweed-Byron Police District. He is 46 years of age.
Senior Constable Hill commenced employment with the NSW Police Force in May 2009. She is currently attached to the Campbelltown Police Area Command. She is 41 years of age.
The NSW Police Force has promulgated a document titled "Injury Management Procedures", which are stated to "outline the processes to be applied when any NSW Police Force (NSWPF) employee sustains an injury and is unable to undertake the inherent requirements of their role. Injury management processes are intended to assist in returning the employee to their pre-injury duties are safe and durable manner, with a focus on timely intervention."
Each of Sgt Snowden and SC Hill suffer from a psychological illness, which for each officer has been accepted by the NSW Police Force's workers compensation insurer, who I understand from the correspondence to be Employers Mutual (NSW) Limited ("EML"), as compensable for the purposes of the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("WIM Act"). Sgt Snowden has not performed any duties since 7 April 2018. SC Hill has not performed any policing duties since 2 October 2018.
I will not traverse in detail the entire medical history for each of Sgt Snowden and SC Hill.
In relation to Sgt Snowden I note the following: 1. On 4 February 2019 Sgt Snowden attended a consultation with Dr Trevor Lotz, which had been arranged by EML. In a report dated 8 February 2019 Dr Lotz provided a prognosis which he described as "guarded". He stated as follows: "In my opinion Mr Snowden does not have the capacity to return to operating policing duties, however may be capable of doing non-operational policing. I do believe this restriction is likely to be permanent. … There is a possibility that he may relapse after returning to work with NSW Police Force. Hence my recommendation for ongoing psychological and psychiatric support, and also a nonoperational role such as administration." (Sic) 1. On 27 May 2019 Dr Shannon Butler completed a "WorkCover NSW - certificate of capacity". That certificate described Sgt Snowden's diagnosis as "PTSD [exacerbated] by current family breakdown". Dr Butler provided the following management plan for the period 2 to 30 June 2019: "Dr Jo Varghese (Psychiatrist) - visits once per month Craig Holt (Psychologist) - weekly visits Plans to return to work gradually as per the following - Working two hours per day for one day (Wednesday's only) per week for the first 4 weeks back. Each week, hours can be increased by one hour ie by week two, Neil should be able to work 3 hours on Wednesday. The longer term plan will be to gradually increase hours per day and days per week up to full time hours at full operational duties. - For the first month duties should be limited to administration duties only located in a quiet location within the police station with no contact with the public, including phone contact - Psychologist appointments are scheduled for every Wednesday afternoon following work, please ensure there is adequate time between finishing a shift and scheduled appointment." (Sic) 1. On 3 June 2019 Sgt Snowden attended a consultation with Dr Peter Snowdon, which again had been arranged by EML. In his report, Dr Snowdon commented that Sgt Snowden "presented as psychiatrically normal. There was no evidence for depression or anxiety". Dr Snowdon reported on a conversation he had had with Dr Joe Varghese, Sgt Snowden's consultant psychiatrist. Dr Snowdon's report contained the following statements: "Dr Varghese said that it was certainly very appropriate, now, for Sergeant Snowden to recommence a return to work, although we both agreed that it is difficult to know whether this will culminate in a return to fully operational police duties or not. … Sergeant Snowden is currently psychiatrically asymptomatic, however it needs to be acknowledged that a degree of fragility, in his psychiatric condition, remains. He is, however, very optimistic in hopefully being able to return to fully operational police duties, which would be commenced with the programme of return to work described above. He will, in this process, be supported by Dr Varghese and Mr Holt, who will be meeting with him in close coordination with the days of return." 1. In what appears to be a subsequent but undated letter to EML, Dr Varghese stated as follows: "[It] is my professional medical opinion that Mr Snowden currently displays capacity to return to work with the NSW Police Force. … Could I refer to the Return to Work Plan that Mr Snowden has compiled with descriptions around support during the process as well. This email was dated 27/05/2019 and I trust you have a copy of the same. I believe that the email contains sufficient information to answer your questions around his graded return to work program and timeframe. I am in support of the plan proposed by Mr Snowden. I cannot think of any other restrictions apart from that limiting his access to his weapons. … A graduated return to work allows the possibility of having an appropriate understanding of the level of recovery that Neal has achieved. The clinical expectation is that he should be able to return to his pre-injury role. However, it remains difficult to guarantee the same." 1. On 9 July 2019 Dr Varghese completed a "WorkCover NSW - certificate of capacity". That certificate described Sgt Snowden's diagnosis as post-traumatic stress disorder ("PTSD") and depression of moderate severity, which were then "in a state of near-total remission". Dr Varghese certified Sgt Snowden as having capacity for employment for four hours per day, 3 days per week from 1 October 2019 to 28 October 2019. This was subject to the following conditions: "Nil contact with general public. No access to weapons." 1. On 24 September 2019 Dr Varghese completed a further "WorkCover NSW - certificate of capacity". Dr Varghese stated that Sgt Snowden was currently in remission in respect of PTSD and depression. He certified Sgt Snowden as having capacity for employment from 1 October 2019 to 28 October 2019. Attached to the certificate was a "return to work schedule" which over the course of four weeks would see Sgt Snowden progress from four hours per day, three days per week to six hours per day, five days per week. It was subject to the following conditions: "1. No access to weapons. This restriction applies only to Mr Snowden requiring to carry his appointments. This does not restrict Mr Snowden being near weapons or having access to weapons. Examples of these exemptions would be: Exhibits, being around officers carrying appointments, and armoury. 2. No direct contact with members of the public. This does not restrict Mr Snowden from having access to the public by phone/e-mail. 3. Not to wear uniforms outside of work. 4. Not to work alone in the public areas of the Police Station." (Sic)
In relation to SC Hill I note the following: 1. In a report dated 15 July 2019 Dr Deborah Thomas stated that she had been seeing SC Hill on a weekly basis since 2017. SC Hill had presented with symptoms of PTSD, anxiety and depression. Dr Thomas stated as follows: "Overall, despite PTSD being a challenging experience, Rachael has worked extremely hard at overcoming this disorder. Her improvement is such that I suggested she will now make a better police officer that she could have been without this experience. I strongly recommend that Rachael be permitted to return to her duties as a police officer, preferably in a way that gradually exposes her to the increased complexities of police work. A return to light duties would be suitable as a first step." 1. In a report dated 16 July 2019 Dr Jim Taylor, a consultant psychiatrist, stated that he had been seeing SC Hill since 13 June 2018. At a review on 3 June 2019 SC Hill was free of symptoms of PTSD. Dr Taylor concluded as follows: "She is fit, from a psychological perspective, for a graded return to work. She could begin two half days per week in a non-operational role. As per your usual program, her working hours would then increase, with eventual progress to operational duty. She will be monitored by me during this time and beyond. From my perspective she could begin this process as soon as administratively possible." 1. In a report dated 26 September 2019 Dr Thomas stated as follows: "Recommendation I have no reason to doubt that Rachael is psychologically stable and able to return to her role as a police officer. I recommend that she be able to return to work and that this be done in a graded manner. It is my view that Rachael is ready to return, part time, to all station duties (as [outlined] in job description and including supervision of team members). I anticipate that Rachael is likely to be ready to return to full general duties (as outlined in job description) by early 2020. An initial schedule of six hours per day for three days per week would be suitable with a review being conducted, with Rachael, after four weeks, and at further suitable intervals (say every four weeks) based on Rachael's progress and the assessment of her superiors. Further psychological assessments can be provided as needed. A return to Campbelltown station is not suitable based on the aforementioned complex trust violations associated with previous work at this station. I see no reason why Rachael would not be able to return to pre-injury duties within six months of her return to work. If Rachael was sent to a station other than Campbelltown and one of the people from Campbelltown who have been mentioned above were to transfer to the station where Rachael was working, this would not have the same impact as sending Rachael back to Campbelltown station where the persons of issue are entrenched. This scenario will therefore not be problematic and is not a restriction. There are no other restrictions either psychological or physical." (Emphasis in original)
On 29 April 2019 and 6 May 2019 respectively, Sgt Snowden and SC Hill were informed that their cases had been referred to the Deployment and Transition Unit of the NSW Police Force with a view to being considered for medical retirement by the Medical Discharge Review Panel ("MDRP"). Each of them deposed that they had no desire to be medically retired and they each took steps to prevent that outcome. Both claimed that they never received the information that was supplied to either the Deployment and Transition Unit or the MDRP.
On 10 July 2019 the Association wrote to Assistant Commissioner Leanne McCusker expressing its concern that any referral of Sgt Snowden to the Deployment and Transition Unit or progression of his file toward a medical discharge would be premature and would be in breach of the Injury Management Procedures.
In a letter dated 16 July 2019 Superintendent David Driver, Commander, Workforce Safety Command, wrote in response to the Association's letter. In his letter, Supt Driver stated as follows: "In circumstances where an officer has no capacity for 12 months it is clear that any attempts to return to work would be futile. Accordingly, all options were exhausted enabling the referral to the Deployment and Transition Unit. The mere fact that a medical certificate (discussed further below) has been provided subsequent to this referral does not mean there has been any breach of 6.4 or otherwise obligate the NSWPF to reverse all previously undertaken procedures and start the process again. To do so would put a significant and unreasonable burden on the organisation and needlessly prolong the injury management process, exposing the individual officer and their colleagues to risk of further injury. This is in the interest of all PANSW's members, not just the injured officer. Medical Retirement The process for medical retirement under s 94B of the Police Act 1990 (NSW) is distinct and separate to workers' compensation laws. …"
Each of Sgt Snowden and SC Hill received a letter dated 6 August 2019 from Brett Carroll, described in the letter as the "Commissioner's Delegate", confirming that they were to be medical discharged from the NSW Police Force with effect on Thursday, 22 August 2019.
The Notification was filed on 20 August 2019. It described the dispute as follows: "3. The Association and the Commissioner of Police are in dispute over: a. The failure by the NSW Police Force to comply with its obligations under s 49 of the Workers Compensation and injury Management Act 1998 (the WIM Act) for officers who are referred to the Medical Discharge Review Panel (the MDRP) (part of the standard NSW Police Force procedure for the medical retirement of police officers sworn post 1 April 1988), or who continue to be referred for consideration of the MDRP, in circumstances where both the officers nominated treating doctor and the Independent Medical Expert briefed by the NSW Police Force (for the purpose of providing an opinion on an officers fitness for duty), support a graded return to work plan for the officer. b. The failure by the NSW Police Force to afford procedural fairness to officers who are referred to the MDRP for consideration of medical retirement. c. The threatened dismissal of Sgt Snowden. The Association contends the threatened dismissal of Sergeant Snowden is both procedurally and substantively harsh, unjust and unreasonable." (Sic)
It is assumed that in para 3(a) of the Notification the Association intended to refer to the WIM Act. The proceedings progressed on that basis.
In relation to Sgt Snowden, the Notification stated as follows: "53. It is in these circumstances the Association contends: a. The Commissioner of Police is in gross violation of his obligations to Sergeant Snowden as an injured worker under s 49 of the WIM Act. In circumstances where an officers [nominated treating doctor] certifies them fit for a graded return to work, and the officer requests suitable work, the NSWPF is obliged to provide suitable work. That is particularly so where an independent assessing specialist briefed by the NSWPF/the NSWPF workers compensation insurer has similarly expressed the view that a graded return to work is appropriate and would assist in the officer's rehabilitation. b. The Commissioner of Police has failed to afford Sergeant Snowden procedural fairness, in considering whether he ought be dismissed on medical grounds, in particular by: i. Failing to provide Sergeant Snowden with a copy of the papers prepared for the consideration of the MDRP prior to its consideration of his file; and ii. Failing to provide Sergeant Snowden an understanding of, and opportunity to comment on, any recommendation by members of the MDRP, prior to the Commissioner's delegate approving medical retirement. c. Has threatened to dismiss Sergeant Snowden in circumstances where the threatened dismissal of Sergeant Snowden is both procedurally and substantively harsh, unjust and unreasonable." (Sic)
Largely identical contentions were advanced in the Notification on behalf of SC Hill.

Relevant legal principles

In Australian Services Union and Sydney Water Corporation [2005] NSWIRComm 156 Boland J held as follows: "65 On the face of it, s 136, in combination with s 137(1)(c), gives the Commission the power to exercise its discretion to order Sydney Water not to dismiss Mr Austin and Mr Bagala. The section, I think, owes its existence to the Parliament's concern, in introducing the Industrial Relations Bill 1995, that the Industrial Relations Act 1991 did not invest power in the Commission, in dealing with an industrial dispute, to reinstate or re-employ any one or more employees who were dismissed in the course of an industrial dispute or whose dismissal resulted in an industrial dispute, other than in accordance with the specific provisions dealing with unfair dismissals in Chapter 3, Part 8 of the 1991 Act: see Woolstar Pty Limited v Federated Storemen and Packers Union of Australia (New South Wales Branch) (1992) 45 IR 39; Hansard, Legislative Council, 23 November 1995, 3851. 66 It is likely that the Parliament's principal intention in providing for s 137(1)(b) and (c) was to provide the Commission with the means of dealing with situations where a dispute existed and in the course of the dispute employees taking industrial action in support of claims were either threatened with dismissal or were dismissed because of, or for reasons related to, the industrial action. A good example of that was the situation addressed by the Commission in Woolstar where the employer dismissed approximately 400 employees, members of the Federated Storemen and Packers Union of Australia, NSW Branch, in the course of an industrial dispute. 67 The present circumstances are not the same as those in Woolstar. However, it seems to me that orders of the kind in s 137(1)(c) may be made to prevent the termination of employees threatened with termination in a situation where their future - that is, whether or not they are to be retained in employment - depends on the outcome of the arbitration of the subject matter of an industrial dispute. Moreover, I agree with the observation of Schmidt J in Hill at 205 that it is evident on the face of ss 136 and 137 that the Commission has the power to make an order on an interim basis, that a person who has been threatened with dismissal, not be dismissed. 68 The next matter for consideration is whether orders of the kind under s 137(1)(c) should be made in this case and what are the tests to be applied in determining that question. Both parties relied on Hill, which, of course, employed the standard tests applied to the granting of injunctions as enunciated by Mason ACJ in Castlemaine Tooheys. Those tests have been applied in numerous cases before the Commission in circumstances of threatened dismissal, usually in the context of s 89(7) of the Act, and whilst I am not entirely satisfied that the approach in Hill is necessarily appropriate in all cases for the granting of interim relief under s 136 and s 137, it is my intention to adopt it in this case as a guide to achieving a fair and proper outcome. In doing so, the Commission cannot lose sight of its duty under s 163(1)(c) of the Act to act according to equity, good conscience and the substantial merits of the case and if that requires some modification of the tests applied in Hill to the peculiar circumstances of the case then so be it."
His Honour's observations were endorsed on appeal in Sydney Water Corporation and Australian Services Union (New South Wales and Australian Capital Territory Branch) (2005) 146 IR 388; [2005] NSWIRComm 305. In that case the Full Bench held as follows: "36 While we agree that the tests formulated in Castlemaine Tooheys as adopted in Hill (on the submissions of both parties) offer some useful guidance for the exercise of power to grant interim orders, it would be wrong to apply, strictly and inflexibly, what are essentially private law and equity principles to the full range of industrial disputes under Chapter 3 of the Act, many of which fall into the realm of a jurisprudence not only more closely aligned to public law but having its own particular features. Industrial disputes may cover a spectrum from what is essentially an isolated, ordinary unfair dismissal case, to an industrial dispute in which dismissals or threatened dismissals are subsidiary, and then to a full-blown collective dispute involving stoppages, lock-outs, and mass dismissals. Across most of the spectrum, there will be factors at play which cannot be accommodated by the Hill tests, and the further the situation approaches the collective dispute at the end of the relevant spectrum, the more strained the application will become. The Hill tests will usually be applicable to applications brought under s 89(7) of the Act. 37 The Commission, in using its powers under the Act to conciliate, arbitrate and generally facilitate the resolution of industrial disputes, is engaged in an undertaking considerably removed from the adjudication of individual civil grievances. In furthering the objects of the Act (including the promotion of efficiency and productivity in the economy of the State and providing for the resolution of industrial disputes in a prompt and fair manner with the minimum of legal technicality), it is vital that the Commission recognise the broad discretion granted by the Act to fashion appropriate relief by reference to the merits of the industrial dispute itself and the steps necessary to resolve it. This will involve a variety of considerations, some of which may include those deriving from private litigation, but more usually will include the public interest in managing the industrial dispute in a fair and just manner with minimum disruption and disputation. 38 The Castlemaine Tooheys tests must be understood in the context of litigation between two individual parties to a private dispute albeit with public law elements, seeking a judicial resolution. In such a context, strict evaluation of the first test in terms of the evidentiary burdens of court proceedings assists the overall integrity of the proceedings by placing a check upon dubious or frivolous claims, claims which are unlikely to succeed and claims which should be concluded at an early stage. But technical evidentiary questions such as whether or not 'there is a prima facie case' do not sit as neatly in the context of the arbitration of an industrial dispute by the Commission, charged as it is by the Act with the promotion of various public policies, including those referred to above. 39 In our view, there is no doubt that the essence of the first test (which, in this context, should be posed in terms of whether there is a serious dispute or issue to be resolved between the parties) is satisfied in this case. There was no suggestion that the Union was not genuine in its concerns about the adequacy of Sydney Water's injury management policy and about the potential dismissal of numerous employees (not just Messrs Austin and Bagala) by the application of an allegedly inadequate policy; nor could there be, in our view, given the long-running nature of the dispute and its numerous manifestations before this Commission. These factors also emphasise the genuine nature or enduring quality of the dispute, in the sense the parties themselves have not, to date, been able to resolve it. 40 Moreover, the industrial dispute was broader than an isolated case of unfair dismissal. Boland J rejected Sydney Water's contention that the dispute the subject of the current arbitration proceedings was a 'narrow dispute' concerning the threatened dismissal of two employees: as we have already noted, his Honour held in Australian Services Union and Sydney Water Corporation (No 2) that there could be no doubt by 11 April 2005 that the dispute the Commission was attempting to deal with involved not only the immediate issue of the threatened dismissals of Messrs Bagala and Austin but also the substantive issue of Sydney Water's injury management policy. 41 The second Hill test must be treated with much greater caution for this area. While it is relevant to consider 'irreparable injury for which damages will not be an adequate compensation' in private law litigation, the preceding discussion makes it abundantly clear that although the second test may well be applicable to orders sought in ordinary unfair dismissal cases pursuant to s 89(7), it will be very unusual for this test to apply to orders sought under ss 136 and 137 in the context of an industrial dispute. As a preliminary point, ss 136 and 137 do not allow for the remedy of compensation. The remedy is confined to either orders preventing a threatened dismissal (s 137(1)(c)) or orders of reinstatement or re-employment (s 137(1)(b). 42 Secondly, but no less obviously, it is difficult to accept that damages could ever be adequate compensation in a case such as this where the threatened dismissal is subsidiary to the dispute: the issue here is rectification of an allegedly inadequate injury management policy (and the consequent prevention of other potentially unfair dismissals pursuant to that policy). How would payment to two individuals by reference to their employment status be likely to constitute an adequate remedy for the collective body represented by the Union seeking to improve a process or remedy an alleged injustice or unfairness within the workplace? 43 Thirdly, the general inapplicability of the second test can be ascertained by reference to the conceptually related inapplicability of any requirement to give an undertaking as to damages (see Dimension Data Pty Ltd v National Union of Workers, New South Wales Branch [2005] NSWIRComm 81 at [9] and [10]."
I have been guided by this authority in reaching my decision in the present matter.

Is there a serious dispute or issue to be resolved between the parties?

The Commissioner of Police characterised this matter, by reference to the Notification and Application for Orders, as a dispute between two employees and their employer. He questioned whether the Association had demonstrated that there was a broader industrial dispute between the parties.
The Association submitted that the circumstances of Sgt Snowden and SC Hill had made the Association aware of a broader dispute between the parties. That dispute involved several concerns. The first concern arose from the language of the letter of Supt Driver dated 16 July 2019, namely the extent to which s 49 of the WIM Act is affected by the Commissioner's discretion under s 94B of the Police Act 1990 (NSW). Section 49 of the WIM Act provides as follows: 49 Employer must provide suitable work (1) If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker. Maximum penalty: 50 penalty units. (2) The employment that the employer must provide is employment that is both suitable employment (as defined in section 32A of the 1987 Act) and (subject to that qualification) so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was at the time of the injury. (3) This section does not apply if: (a) it is not reasonably practicable to provide employment in accordance with this section, or (b) the worker voluntarily left the employment of that employer after the injury happened (whether before or after the commencement of the incapacity for work), or (c) the employer terminated the worker's employment after the injury happened, other than for the reason that the worker was not fit for employment as a result of the injury.
Section 94B of the Police Act is in these terms: 94B Retirement on medical grounds The Commissioner may retire a member of the NSW Police Force if: (a) the person is found on medical grounds to be unfit to perform or incapable of discharging the duties of the person's position, and (b) the person's unfitness or incapacity: (i) appears likely to be of a permanent nature, and (ii) has not arisen from actual misconduct on the part of the person, or from causes within the person's control.
Following submissions made at the hearing, it is not entirely clear whether the parties are or will remain in dispute over the interaction between s 49 of the WIM Act and s 94B of the Police Act. Mr Mahendra submitted as follows: [1] "However, in the context of this dispute and I think this is the point of time [at] which I need to indicate, we do not say that section 94B allows the Commissioner of Police to ignore its obligations under section 49 of the WIM Act. It seems as though the parties are in furious agreement that the two can be read side by side and consistently. Ultimately, what this case will boil down to is whether section 94B of the Police Act, in the context of these two officers, allowed the Commissioner to exercise its discretion to retire them and that will come down to whether or not the person's unfitness or incapacity appears likely to be of a permanent nature and we say that's a matter for final hearing."
To the extent that there remains a contention by the Commissioner of Police that s 94B qualifies the operation of s 49, that would be a serious question for determination. A question might also arise as to whether the Commissioner of Police has complied with s 49 and, if not, whether this would render any medical discharge harsh, unreasonable or unjust. There was some debate at the hearing as to the Commission's jurisdiction to make any findings in this regard, but to my mind these are questions best left for the substantive hearing. In light of the submissions made by Mr Mahendra I have not placed significant reliance on this contention.
The second concern raised by the Association's case is whether, within the meaning of s 94B, the condition of either Sgt Snowden or SC Hill "appears likely to be of a permanent nature".
The third concern, which is similar in nature, arose from the contention that there had not been compliance with the Injury Management Procedures. For example, those procedures provide that a decision to no longer seek to have an injured employee return to full pre-injury duties can only be made once it has been determined that they have reached "a plateau in their recovery that is unlikely to change in the foreseeable future", referred to as "maximum medical improvement". It was submitted that the medical evidence did not demonstrate that either Sgt Snowden or SC Hill had reached maximum medical improvement.
Further in this regard, the Injury Management Procedures provide that an employee will be referred to the Deployment and Transition Unit for the purposes of preparing a report and recommendation by the MDRP, only after "all attempts to return the employee to work within the NSW Police Force have been exhausted". It was submitted that this condition had also not been met.
On the totality of the evidence, I consider that there is a serious question to be tried as to whether either Sgt Snowden or SC Hill is likely to be permanently incapable of discharging the duties of their position within the meaning of s 94B. The evidence appears strongest in relation to SC Hill, having regard to the report of Dr Thomas dated 26 September 2019. It must be acknowledged that the evidence regarding Sgt Snowden is much more qualified.
There is also a serious question to be tried as to whether there has been compliance by the Commissioner of Police with the Injury Management Procedures. In the case of SC Hill the medical evidence suggests strongly that she has not reached "maximum medical improvement", and that her ability to do so rests on a graduated return to work. The evidence in respect of Sgt Snowden is more qualified, but a question remains as to whether he has reached a "plateau in his recovery".
The evidence of Acting Superintendent Dempsey and Inspector Hatfield is that no positions are, or were, available for either Sgt Snowden or SC Hill that could accommodate their medical restrictions. This might provide a basis to argue that all attempts to return the employees to work had effectively been exhausted, but that is a matter that can only be resolved at hearing.
There remain, however, questions as to whether either Sgt Snowden or SC Hill should under the terms of the Injury Management Procedures have been referred to the Deployment and Transition Unit and the MDRP for consideration of medical discharge.
Finally, the fourth area of concern was whether Sgt Snowden and SC Hill had been denied procedural fairness in the process culminating in the decision to invoke s 94B. This stems from their alleged inability to have access to, or respond properly to, the information put before the MDRP. There is a factual disagreement between the parties on this issue, which again can only be resolved at a full hearing.
One aspect of the evidence which was not specifically drawn to my attention was the following statement by Supt Driver in his letter of 16 July 2019: "In circumstances where an officer has no capacity for 12 months it is clear that any attempts to return to work would be futile."
This statement causes significant disquiet. Supt Driver appears to have drawn an arbitrary line beyond which any attempts to return an injured employee to work need not be taken. His statement might be interpreted as suggesting that once an employee has been unable to work in any capacity for 12 months it would be pointless to attempt to comply with any return to work obligations under the Injury Management Procedures or, indeed, workers compensation legislation. An absence of 12 months might also render any condition "permanent" for the purposes of s 94B of the Police Act, regardless of medical evidence.
It is not clear to what extent the views expressed by Supt Driver reflect those of the Commissioner of Police or had an impact on the approach taken in respect of either Sgt Snowden or SC Hill. To my mind, these are matters that ought to be further explored at the hearing.
I have considered this matter consistent with the approach taken by Boland J in Australian Services Union and Sydney Water Corporation. While the focus of the evidence and submissions in the proceedings was on the treatment of Sgt Snowden and SC Hill, in determining whether there is a serious dispute or issue to be arbitrated I have questioned whether that treatment gives rise to a prima facie case that such treatment reflected an inadequate or unfair injury management scheme. I have further questioned whether that treatment suggests that the Commissioner of Police, though his delegate, has misinterpreted or misapplied s 94B of the Police Act.
I am satisfied that there is a serious dispute or issue to be resolved between the parties. I am further satisfied that the issues identified have significance beyond the circumstances of Sgt Snowden and SC Hill.

Balance of convenience

Acting Supt Dempsey is Chief Inspector of Police, Human Resources Duty Officer at the Tweed-Byron Police District. On the question of balance of convenience, his affidavit included the following evidence: 1. each Command is subject to a First Response Policing Agreement that reflects that Command's capability to respond to events in the community as required based upon the number of officers available to perform certain duties. Part of the agreement specifies positions that must be maintained at all times and reflects the minimum number of officers required to operate the Command at a base level; 2. each position in the NSW Police Force has a position number known as a SAP number. There are SAP numbers for each Command that reflect the authorised strength figures. Only one officer can be held against a SAP position; 3. if a police officer is injured and is unable to return to pre-injury duties, and reasonable adjustments cannot be made to accommodate their injury, medical retirement must be considered. This is because the police officer will otherwise occupy ASAP position within the Command and the NSW Police Force that is designated for a fully fit and operational police officer. The NSW Police Force cannot simply hire another police officer to replace the injured officer, as authorised strength figures and budgetary constraints prevent that from occurring; 4. if the Command cannot fill positions with officers who are fully fit, then this gives rise to a significant risk to the community that the Command will not be able to meet its first response agreements, and that the NSW Police Force will not be able to provide policing services efficiently and to the standard that members of the public expect, because there will be too many officers attached to the Command that are unable to perform the full range of policing duties that are required, and the Command cannot replace those officers; 5. additionally, retaining officers who are not fit for operational duties places an added burden on officers in their Command were left to meet the operational needs and requirements of the Command. This exposes those officers, who are otherwise fully fit, to an increased risk of injury from the additional work required to compensate for the injured officers; and 6. if Sgt Snowden was medically retired but a decision was later made to reinstate him, this could be accommodated. In his view, "reinstatement or re-employment is practicable".
Inspector Hatfield is the Human Resources Manager of the South West Metropolitan Region, of which the Campbelltown City Police Area Command forms part. Her evidence related to SC Hill and the Campbelltown Command, and reflected that of Acting Supt Dempsey outlined above.
I observe that there is no evidence that the ongoing absence of either Sgt Snowden or SC Hill has, in respect of their respective commands, resulted in the realisation in fact of the risks identified by Acting Supt Dempsey and Inspector Hatfield. The evidence is very much expressed in theoretical terms.
The possible exception to this is Acting Supt Dempsey's evidence that a Sergeant Morris has been transferred to Murwillumbah following a redistribution of Sgt Snowden's duties. Sgt Morris is said to be "inconvenienced" while performing these alternative duties.
Each of Acting Supt Dempsey and Inspector Hatfield deposed as to the medical restrictions on Sgt Snowden and SC Hill respectively, and the extent to which these could be accommodated in the relevant command.
Acting Supt Dempsey referred to restrictions on Sgt Snowden set out in the WorkCover certificates dated 27 May 2019 and 9 July 2019 (referred to respectively at [15(2)] and [15(4)] above). Based on that medical evidence Acting Supt Dempsey deposed as follows: "28. Regardless, there is no available position or duties within the Tweed-Byron PD that a Sergeant of Police can perform for four hours per day, three days per week, where the officer cannot have any contact with members of the public, and cannot have access to their arms and appointments. Those restrictions are such that Sergeant Snowden could only work inside a police station. In that environment, it would be expected that he be in contact with members of the public who attend the Police Station, while he would obviously have access to arms and appointments that are stored, albeit securely, on site. While Sergeant Snowden could be assigned to some form of office duties (as opposed to being tasked to work on the front counter), it still cannot be guaranteed that he would not have interactions with members of the public all have access to arms and appointments. 29. In this regard, the Tweed Heads Police Station is a very busy station, that is regularly attended by members of the public. It has in excess of 300 firearms on hand at any one time, as well as various exhibits, miscellaneous property and surrendered items. There is also a quantity of ammunition located on the premises. Access to the Exhibit office, where firearms and ammunition (amongst other things) are stored, is the same as access to the firearms storage area. Sergeant Snowden would feasibly be able to access both if you are performing any form of duties at Tweed Heads Police station. Even if Sergeant Snowden were directed not to access arms and appointments, there would still be a real risk presented by the fact that he would have such access, and in any event, would contravene his current restriction, which says that he cannot have any such access. Further, due to the current terrorism alert level in New South Wales, all police officers are required to be armed at all times they are performing operational duties. 30. In short, it is not clear what possible duties Sergeant Snowden could be allocated if he were not able to have contact with members of the public, and is not permitted access to weapons. Those restrictions are such that he could not perform any form of policing duties, even inside a Police station. 31. Accordingly, if Sergeant Snowden's medical retirement were not to take effect, based on his current medical restrictions, he could not perform any duties at Tweed-Byron PD. This would leave the Command short-staffed for the foreseeable future and would prolong the arrangements to cover Sergeant Snowden's absence to which I refer above."
These views are based on the evidence available to Acting Supt Dempsey. The WorkCover certificate of capacity of 24 September 2019 referred to at [15(5)] above addressed some, but possibly not all, of the concerns raised by Acting Supt Dempsey. There is an open question as to whether on the basis of Sgt Snowden's continued improvement, suitable duties could be provided so as to facilitate his return to work or, it must be said, to confirm that his restrictions are indeed of a permanent nature. This is not a question which I can answer at present. It would need to be considered at the final hearing.
In relation to SC Hill's medical status, Inspector Hatfield deposed as follows: "25. If the medical retirement of Senior Constable Hill was not to take effect, to my understanding, she could not perform pre-injury duties. There are no suitable duties currently available within the Command that she could perform that conform to her current medical restrictions. Even if the restriction not to work in the 'Campbelltown office' is taken to mean the Campbelltown Police Station as opposed to the entire CCPAC, there are also no suitable duties at Macquarie Fields Police Station. Duties at Macquarie Fields would not be appropriate for a graded return to work as it is an isolated location. Further, performing duties at Macquarie Fields requires the officer on duty to carry their arms and appointments, and there are no permanent general duties shifts available at that location. 26. The most recent medical certificate supplied by Senior Constable Hill states that she is fit for suitable duties, six hours per day, three days a week, with the restrictions of not returning to CCPAC and a graduated return starting with desk duties. 27. If Senior Constable Hill is not able to perform duties anywhere within CCPAC, then there are no duties that can be given to her. Further, the restriction that she be subject to a graduated return to work starting with desk duties suggests that Senior Constable Hill is currently fit to perform only very limited duties. While I cannot say what Senior Constable Hill's doctor meant by 'desk duties', I assume it means that she is fit to perform office duties (as opposed to operational duties or other duties within a Police station that involve interactions with members of the public). There are no desk duties within CCPAC that Senior Constable Hill could perform."
The medical report of Dr Thomas dated 26 September 2019 referred to at [16(3)] above certified that she is fit to return, part-time, to all station duties. This would seem to address the concerns expressed by Inspector Hatfield as to SC Hill's return to work. It also does away with the need to speculate or make assumptions as to the limitations on SC Hill's fitness for work. Again, whether or not a return to work is in fact possible is a matter that can only be determined at a final hearing.
The evidence of Acting Supt Dempsey and SC Hill suggests that in their view suitable or alternative duties need only be considered in the context of their respective commands. It is not immediately apparent to me why this need be the case. In this regard I note that cl 5.10 of the Injury Management Procedures allows for an injured employee to be placed on a "rehabilitation placement" at a location other than their pre-injury workplace. There is no evidence to suggest that such a placement could not be made available to either Sgt Snowden or SC Hill, as appropriate.
The Commissioner of Police submitted that there is no evidence of particular prejudice that would be suffered by either Sgt Snowden or SC Hill if an interim order is not made in their favour. I accept that the Association has made some submissions as to the impact that a medical discharge would have on the officers that are not supported by evidence, but I do not accept that there is no evidence of prejudice.
It is abundantly clear that if interim orders are not made the medical discharge of both Sgt Snowden and SC Hill pursuant to s 94B of the Police Act will be effected. Their remedy in that event would presumably be to make a separate application to the Commission pursuant to s 84 of the Industrial Relations Act in which they might hope to receive an order for reinstatement. The Commissioner of Police relies on the availability of such a remedy as weighing against the Association on the balance of convenience. The evidence of Acting Supt Dempsey and Inspector Hatfield on the question of the practicability of reinstatement or re-employment seems to be premised on each of Sgt Snowden and SC Hill, respectively, having recovered fitness for pre-injury duties and obtained a reinstatement order.
Even if it were assumed that either Sgt Snowden or SC Hill were able to eventually demonstrate that the termination of their employment was harsh, unreasonable or unjust, it does not follow that they would automatically be entitled to an order for reinstatement. This is a matter within the discretion of the Commission.
Perhaps more particularly, a prejudice that would be suffered by each of Sgt Snowden and SC Hill if the interim orders are not made is the inability to have implemented a graduated return to work, or at least the deferral of of such a return to work subject to any reinstatement order that the Commission might later make. In the case of each officer, a return to work is proposed by the relevant treating practitioners as a next step in their recovery in the hope, if not expectation, of an eventual return to pre-injury duties. In the case of SC Hill this is expected to occur by early 2020. Dr Thomas "recommends" that SC Hill be able to return to work. The situation with Sgt Snowden is more guarded, although Dr Varghese has expressed the "clinical expectation…that he should be able to return to his pre-injury role". Dr Varghese "is in support of" the return to work plan proposed by Sgt Snowden.
In each case it can be inferred that a return to work has benefits in terms of the ongoing treatment of the officers, in that it will provide a means by which each might further recover from their work-related injuries. The ability to undertake a graduated return to work therefore has significance to each officer that goes beyond them simply keeping their jobs; it may go to their health and well-being. The potential loss of that opportunity, or at the least its deferral until the determination of unfair dismissal proceedings, is not a prejudice that can necessarily be remedied through any relief that the Commission might make in an application under s 84 if the Industrial Relations Act.
Overall, I consider that the balance of convenience weighs in favour of making the interim orders sought by the Association

Orders, recommendation and direction

Pursuant to s 136(1)(c) and (d) and s 137(1)(c) of the Industrial Relations Act 1996 (NSW) I order that: 1. the Commissioner of Police not dismiss Sergeant Neal Snowden until the determination of these proceedings or further order of the Commission; and 2. the Commissioner of Police not dismiss Senior Constable Rachael Hill until the determination of these proceedings or further order of the Commission.
I recommend that the parties confer as to the possibility of implementing a graduated return to work for Sergeant Neal Snowden and Senior Constable Rachael Hill consistent with available medical evidence.
I direct that the proceedings be listed for directions at 10.00am on Tuesday, 22 October 2019. Damian Sloan Commissioner

Endnote

Tcpt p 20 (39-48) 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: 11 October 2019

Industrial Relations Act 1996(NSW)ss 84, 89, 130, 135, 136, 137, 163

Evidence Act 1995(NSW)ss 9, 75

Police Act 1990(NSW)s 94B

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