Police Association of New South Wales (obo Tomlinson) v Commissioner of Police

Industrial Relations Commission (NSW)|2023-06-02

DECISION

On 8 March 2023 the Police Association of New South Wales ("Association") filed an Application for Relief from Victimisation ("Application"), purportedly pursuant to s 213 of the Industrial Relations Act 1996 ("Act"). The Application was brought on behalf of the Association's member, Senior Constable Andrew Tomlinson.
By notice of motion filed on 16 March 2023 the Commissioner of Police sought an order that the Application be dismissed ("Motion"). The premise of the Motion was that the Application was filed out of time.
The Motion came on for hearing on 2 June 2023.
The Commissioner of Police read two affidavits of Georgina Chard, a solicitor employed by Kingston Reid, the solicitors for the Commissioner of Police, affirmed on 16 March 2023 and 14 April 2023 respectively, and one of Chief Inspector Gregory Jewiss, Staff Officer to the Assistant Commissioner, Counter Terrorism and Special Tactics Command, affirmed on 19 May 2023. The Commissioner of Police relied on two sets of written submissions, dated 14 April 2023 and 19 May 2023.
The Association read an affidavit of Snr Cst Tomlinson sworn on 5 May 2023 and one of Casey Young, an In-House Lawyer employed by the Association, also sworn on 5 May 2023. The Association relied on written submissions dated 5 May 2023.
At the conclusion of the hearing, I determined to uphold the Motion. I dismissed the Application on the basis that it had been brought out of time. I informed the parties that my reasons would follow. These are those reasons.

Was the Application filed out of time?

Section 213(1) of the Act empowers the Commission to enforce the provisions of Ch 5 Pt 1 of the Act on the application of an industrial organisation or by any person affected by a contravention of those provisions. Section 213(3) requires an application to be made "within 21 days after the contravention concerned".
The Application asserted, in part, that: 1. by making the Overtime Claim, Snr Cst Tomlinson had claimed a benefit to which he was entitled under the relevant award, within the meaning of s 210(1)(e) of the Act; 2. by initiating and conducting the Investigation, imposing an interim transfer, making findings of misconduct against Snr Cst Tomlinson and taking disciplinary action (in the form of the Warning Notice and the Conduct Management Plan), individually and collectively, the Commissioner of Police subjected Snr Cst Tomlinson to detrimental treatment; and 3. that detrimental treatment was taken and/or imposed because of, or for reasons that included the fact that Snr Cst Tomlinson made the Overtime Claim. The Application contended that "the complaint as a whole was only made because of or for reasons that included the fact [Snr Cst Tomlinson] made the Overtime Claim".
The Association sought orders requiring the Commissioner of Police to revoke the adverse finding relating to the Overtime Claim, to correct internal records to reflect that revocation, and to revoke the Conduct Management Plan and the Warning Notice.
The Commissioner of Police contended that to determine whether an application is filed within 21 days from "after the contravention concerned", the date of the contravention is taken to be the date the applicant suffered detriment: Kininmont v Ku-ring-gai Council [2019] NSWIRComm 1029 at [10]. She submitted that on this basis the Application, having been filed on 8 March 2023, was out of time, noting that: 1. Snr Cst Tomlinson was notified on 25 January 2021 that the Investigation was to be conducted and that he was to be subject to an interim transfer; 2. Snr Cst Tomlinson was notified of the allegations the subject of Investigation at the latest on 23 April 2021. (The evidence in fact suggests that he had received details of the allegations on 19 April 2021, although this is not material); 3. Snr Cst Tomlinson was informed of the outcome of the Investigation on 27 July 2021 at the latest and received a copy of the Investigation Report on 3 August 2021; and 4. Snr Cst Tomlinson was served with the Warning Notice on 27 July 2021.
At the hearing of the Motion, the Commissioner of Police argued that time for the purposes of s 213(4) must be taken to have run from 27 July 2021 to the extent the Application challenges the Warning Notice, and (to adopt the most beneficial view of the evidence) from 3 August 2021 to the extent it challenges the Investigation.
The Association disputed that the Application was filed out of time. This was its primary position in response to the Motion. It relied on the review undertaken by the Internal Review Panel in February 2023. In its written submissions, the Association, referring to the email from then A/Supt Jewiss to Ms Young of 15 February 2023, contended: "19. It is clear from the correspondence from AS Jewiss that Snr Cst Tomlinson's matter was wholly referred to the Respondent's internal review panel for reconsideration and redetermination. 20. The correspondence reveals that the panel reconsidered and redetermined the matter in accordance with their own procedures. Removing the section 173 disciplinary transfer and maintaining the non-reviewable six month conduct management plan (which was subsequently removed after these proceedings were commenced) and importantly, the Commander's Warning Notice that was previously served upon Snr Cst Tomlinson on 27 July 2021. 21. There is no doubt that the Commander's Warning Notice was for conduct that included Snr Cst Tomlinson's alleged fraudulent overtime claim. By reconsidering, but then reaffirming and retaining the Commander's Warning Notice the Respondent has restarted the clock on the date in which the victimisation occurred. 22. Had the Commander's Warning notice been withdrawn, or had it not been resubmitted and reconsidered for by the review panel, then the date in which the warning (being the victimising conduct) 'occurred' would have been 27 July 2021 and the Applicant and Snr Cst Tomlinson would be well out of time. However, this is not the case here." (Footnote omitted)
The evidence does not support the Association's submission that "Snr Cst Tomlinson's matter was wholly referred to the Respondent's internal review panel for reconsideration and redetermination". In his affidavit, Ch Insp Jewiss deposed that on 2 February 2023 he had been asked by Assistant Commissioner Joe Cassar to review the proposed disciplinary transfer of Snr Cst Tomlinson and consider whether it remained appropriate; that on 9 February 2023 he informed Asst Cmr Cassar that he wanted to refer the matter to the Internal Review Panel for reconsideration of the disciplinary transfer; and, that he subsequently did so. Ch Insp Jewiss stated that the only issue that he referred to the Internal Review Panel was whether the proposed disciplinary transfer should be renewed or withdrawn, and that he had recommended to the Panel that it be withdrawn.
Attached to Ch Insp Jewiss's affidavit was an email he had received from a Panel Administrator in the Misconduct & Management Support Command on 15 February 2023. That email appears to corroborate Ch Insp Jewiss's evidence that the only matter returned to the Internal Review Panel was the proposed disciplinary transfer.
The terms of the email from Ch Insp Jewiss to Ms Young of 15 February 2023 must be viewed in light of this evidence. It cannot be said, as the Association submitted at the hearing, that it constituted a "new decision" and a "reimposition" of the penalties that had previously been determined. It is clear in particular that the Warning Notice was not "reconsidered" by the Commissioner of Police in February 2023, as the Association contended, or indeed at any time. It follows that there is no basis on which it can assert that on 15 February 2023 the Commissioner of Police had "restarted the clock" for the purposes of s 213(3) of the Act.
The Association conceded that if I did not accept its submissions that the date of contravention was 15 February 2023, the Application must be taken to have been filed "well out of time". It did not take issue with the position put by the Commissioner of Police that time would have started running from 27 July 2021, and by the latest 3 August 2021 to the extent the Application challenged the Investigation. In this regard, I note par 22 of its written submissions reproduced at [35] above.
Given these submissions, and noting my conclusions at [38] above, I determined that the Application was filed out of time.

Should the Application be accepted out of time?

Section 213(4) confers on the Commission the discretion to accept an application that is made out of time if there is "sufficient reason to do so" having regard in particular to the reason for, and the length of, the delay in making the application; any hardship that may be caused to the applicant or other party if the application is or is not rejected; and, the conduct in relation to which the order is sought.
The Association submitted that should the Commission find that the Application was filed out of time, it should exercise its discretion under s 213(4) to accept the Application. The Commissioner of Police contended that the Association had failed to make out a case which would satisfy the Commission to do so.

Legal principles

The discretion to accept an application out of time involves balancing a range of considerations, including whether an applicant has an arguable case and the applicant's prospects of success. The exercise of the Commission's discretion is governed by the requirements of justice in a particular case: Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145; [2003] NSWIRComm 139 at [12].
The principles to apply in considering whether to exercise a discretion such as that in s 213(4) were, with respect, well articulated by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 at 8-10 as follows: "The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even 'cruel', to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. … … …The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible. In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. …The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension." (Footnotes omitted]
The prima facie position is that an application brought out of time is excluded and if an applicant cannot demonstrate that the justice of the case requires an extension, then the prima facie position will prevail: Public Service Association of NSW (o/b Morawsky) v Department of Justice [2017] NSWIRComm 1059 ("Morawsky") at [13].

Reason for, and length of delay

The Application was filed some 84 weeks out of time. On any analysis, that is a very substantial delay.
The Association contended that the delay was caused by it and Snr Cst Tomlinson being "involved in a lengthy and complex process" during which they "were actively involved in challenging and appealing the Respondent's decision". It drew my attention to the significant amount of correspondence between the Association and the NSWPF in which, it was said, the Investigation, the findings in the Investigation Report and the disciplinary action taken, or proposed to be taken, against Snr Cst Tomlinson had been challenged.
However, while the Association drew my attention to the existence of correspondence between it and the NSWPF, it did not articulate why it explained the delay in commencing proceedings. The fact that parties may be engaging in correspondence with a view to resolving their differences does not preclude the commencement of proceedings. It did not, for instance, prevent the Association commencing judicial review proceedings in the Supreme Court.
More particularly, there is no evidence that the Association or Snr Cst Tomlinson contemplated the commencement of proceedings under s 213, prior to the filing of the Application. There is correspondingly no evidence of a decision or decisions having been made to defer the commencement of such proceedings, either due to the ongoing correspondence between the parties or on any other basis.
Ms Young deposed that she had been assisting Snr Cst Tomlinson since 6 August 2021. If there were concerns that he had been unlawfully victimised, there was ample time to commence proceedings within the statutory time limit.
There was no evidence that after 21 July 2021 the Commissioner of Police was open to reviewing or reconsidering the findings in the Investigation Report or the issuing of the Warning Notice. This was made clear at the latest in the letter from Det Supt Joseph to the Association of 15 September 2021. To the extent that the Association had made a decision to defer the commencement of proceedings in the hope that such a review may be undertaken (about which there is no evidence), there was no reason to further delay doing so after that date.
As stated above, from and after 27 July 2021 the primary focus of the Association's attention was the proposed downgrading of Snr Cst Tomlinson's security clearance and his transfer to general duties. To the extent that it and Snr Cst Tomlinson engaged in a "lengthy and complex process", it was with a view to challenging that aspect only. With the exception of Mr Carroll's "report" of 2 December 2022, the findings of the Investigation were challenged in general terms only (about which I say more below). It is relevant that the Association did not in terms raise concerns with the Investigation, the findings of misconduct against Snr Cst Tomlinson or the issuing of the Warning Notice until 9 September 2021, more than six weeks after the Warning Notice was issued.
Neither the Association nor Snr Cst Tomlinson were aware of the referral of the disciplinary transfer by Ch Insp Jewiss to the Internal Review Panel in February 2023. As a matter of logic, it cannot have informed any decision to delay the commencement of proceedings.
For these reasons, I was not satisfied that the Association had established that there was a reason for the delay.

Hardship to the parties

The Association contended that Snr Cst Tomlinson has suffered hardship in two respects. First, the findings of the Investigation constitute a blemish on his record. Second, Snr Cst Tomlinson has suffered financial hardship as a result of not being able to work overtime.
I observe that the enquiry required by s 213(4)(b) is not simply whether Snr Cst Tomlinson has suffered hardship. Rather, it is a question as to what hardship "may be caused" to him or the Commissioner of Police "if the application is or is not rejected".
The Commissioner of Police conceded that the fact of the Warning Notice and the findings of misconduct being on his record was a blemish on Snr Cst Tomlinson's career. I accepted that the inability to seek to have that blemish removed is a hardship that Snr Cst Tomlinson would suffer were the Application to be rejected. It is a matter to which I had consideration.
As to the alleged financial hardship, Snr Cst Tomlinson has been unable to work since he was subject to an assault on duty on 27 February 2021. There was some medical evidence led by the Association, in the form of "WorkCover Certificates of Capacity", which, with one exception, attributed Snr Cst Tomlinson's continued incapacity to work to the assault. The exception was a certificate dated 5 March 2023 which describes his condition as the result of being "punched by man in affray; workplace harassment". The nature of the alleged harassment is not described. There was no evidence that Snr Cst Tomlinson's condition was caused, in whole or in part, by the alleged victimising conduct.
Further, the inability to work and earn overtime is not a hardship that Snr Cst Tomlinson would cease to suffer if the Application were accepted. That is, he remains medically unfit to return to work. There is no evidence that the acceptance of the Application out of time would result in him being able to return to work and so earn overtime.
The Association submitted that there would be no hardship to the Commissioner of Police should the Application be accepted out of time. Even if that were the case, it would not be determinative of these proceedings: Skelly v Prouds Jewellers Pty Limited (1994) 53 IR 3 at 6. In any event, I was not persuaded that the Commissioner of Police would suffer no hardship.
The Commissioner of Police submitted that once the statutory time limit had elapsed, the NSWPF was entitled to arrange its affairs on the basis that a claim under s 213 could not be made; that this was exacerbated by the fact that the Application had limited prospects of success (a contention to which I will return); and, that the delay might impact on the recollections of witnesses and the integrity of the evidence, which is of particular significance in light of the "reverse onus" in s 213(2) of the Act.
I accepted these submissions. In this regard, I note the observations of McHugh J in Brisbane South Regional Health Authority v Taylor to which I have already referred. I also have regard to the observations of Commissioner Newall in Morawsky (at [10]) "that people should be able to arrange their affairs on the basis that claims cannot be made once the time period has passed; that has an effect on, particularly, public institutions such as the respondent, which are ultimately taxpayer-funded".
I determined that the hardship that would be suffered by the Commissioner of Police were the Application accepted out of time would outweigh that which would be suffered by Snr Cst Tomlinson were the Application rejected.

Conduct in relation to which the order is sought

The conduct the subject of the Application is the Investigation, the misconduct findings which resulted from the Investigation and the issuing of the Warning Notice. While the Commissioner of Police denied that she victimised Snr Cst Tomlinson in taking these actions, she submitted in effect that even could victimisation be established, it was not at such a level of seriousness as to warrant the substantial extension of time sought by the Association.
I deal with the prospects of success on the Application below. Having regard to my findings in that regard, I was not persuaded that the Commissioner of Police had engaged in conduct warranting the Application being accepted out of time.
To the extent that "conduct in relation to which the order is sought" encompasses an enquiry as to whether the conduct of the respondent caused or contributed to an applicant's delay in commencing proceedings (see Kininmont v Ku-ring-gai Council at [46]), it suffices to say that there was no evidence that the Commissioner of Police engaged in such conduct.

Prospects of success

The Association contended that Snr Cst Tomlinson was entitled to make the Overtime Claim. It followed, in its contention, that "there is a real question to be tried between the parties to determine whether Snr Cst Tomlinson was entitled to make the overtime claim and whether as a consequence of the Respondent's conduct, they victimised Snr Cst Tomlinson".
These submissions misapprehend the nature of the claim before the Commission. The question is not whether the Commissioner of Police was justified in refusing the Overtime Claim. Rather, it is whether it was the fact of Snr Cst Tomlinson making the Overtime Claim, as opposed to its veracity, which in whole or in part resulted in the commencement of the Investigation and all that ensued.
From 27 July 2021 there was little attempt by Snr Cst Tomlinson, whether individually or through the Association, to directly challenge the findings of the Investigation or the issuing of the Warning Notice. As already observed, after 27 July 2021 the issue with which Snr Cst Tomlinson and the Association were most concerned was the proposed reduction in Snr Cst Tomlinson's security clearance and his potential transfer out of the POU to general duties.
I have identified only four instances where the findings against Snr Cst Tomlinson and the disciplinary action taken, or proposed to be taken, against him were the subject of challenge. The first was during the meeting between Snr Cst Tomlinson and A/Supt Green on 27 July 2021, during which Snr Cst Tomlinson states he unsuccessfully sought to voice his concerns with the Investigation and its outcomes. There is no detail as to the terms in which he did so.
The second was in the letter from the Association to Det Supt Joseph of 9 September 2021, to which I have referred. While the letter stated that Snr Cst Tomlinson did not agree with the findings of misconduct, it did not set out in any detail the basis on which they were challenged. It focussed more on the alleged harshness of the disciplinary action taken or proposed to be taken against Snr Cst Tomlinson. While reference was made to the Warning Notice, the letter concentrated predominantly on the career, financial and personal implications that a transfer to general duties would have on Snr Cst Tomlinson.
The third instance was on 1 August 2022, when the Association wrote to Acting Deputy Commissioner Scott Cook of the Investigations and Counter Terrorism Command. Attached to the Association's letter were submissions by Snr Cst Tomlinson, in which he stated: "23. I continue to reject the sustained findings and submit that it is unacceptable to have sustained findings of dishonesty for legitimate overtime (as a result of not obtaining a meal break as defined under the Award) and to have a sustained finding in relation to not answering my phone (on a day off when I was not on call, while tending to my sick, pregnant wife)."
Snr Cst Tomlinson did not elaborate on these contentions or challenge in direct terms the issuing of the Warning Notice. I note that he also submitted: "22. …To this end, I submit that the disciplinary action has been exercised, is now exhausted, and that no further action should be taken in respect of any variation or reduction in the level of my security clearance." (Emphasis added)
This extract suggests that as at 1 August 2022, Snr Cst Tomlinson accepted that the findings in the Investigation Report and the issuing of the Warning Notice were not under review. The balance of his submissions, and the Association's letter of 1 August 2022, were consistent with him having such an understanding, as they were again directed towards overturning the decision to reduce his security clearance.
The fourth instance was Mr Carroll's correspondence of 2 December 2022, to which I have already referred. The Association's letter to Dep Cmr Hudson of 31 January 2023 did not request that he take any particular action in response to Mr Carroll's correspondence.
Significantly, I could find in none of the correspondence any assertion that the Investigation, the findings in the Investigation Report or the disciplinary action taken or proposed to be taken amounted to victimisation, in the sense of having been commenced in response to the fact of Snr Cst Tomlinson having made the Overtime Claim. Rather, the Association and Snr Cst Tomlinson sought to justify the Overtime Claim as having been properly made in accordance with the relevant award. This continued in Snr Cst Tomlinson's affidavit and the Association's submissions in these proceedings. The first occasion on which it was alleged that the Commissioner of Police had breached s 210(1)(e) of the Act appears to be in the Application itself.
The evidence discloses that from the outset, the concern held by Snr Cst Tomlinson's senior officers was that in making the Overtime Claim, Snr Cst Tomlinson had falsely claimed that he had not had a meal break on 19 January 2021. This was ultimately one of the findings of the Investigation, and was one of the reasons for which the Warning Notice was issued.
These are matters on which I pressed counsel for the Association during the hearing of the Motion. He was unable to direct me to any evidence which suggested that the commencement of the Investigation, the findings in the Investigation Report or the decisions regarding the disciplinary action to be taken against Snr Cst Tomlinson, including the Warning Notice, were affected in any way by the simple fact of Snr Cst Tomlinson having made the Overtime Claim. The Association could point only to the coincidence in timing between the making of the Overtime Claim and the commencement of the Investigation.
Snr Cst Tomlinson may well have reasons to feel aggrieved at the finding of misconduct in respect of the Overtime Claim. The Investigation Report set out the grounds on which Snr Cst Tomlinson should be regarded as having had a meal break or to having "abandoned" his entitlement to such a break. Those parts of the Investigation Report give rise to concern, although I make no determination that they are necessarily wrong. However, it is not sufficient in proceedings under s 213 to assert that an erroneous decision was made. The Association was required to demonstrate that there was a prima facie case that Snr Cst Tomlinson was victimised because he claimed a benefit to which he was entitled under the award. It did not do so.
It follows that I was not persuaded that the evidence disclosed that Snr Cst Tomlinson had an arguable case that the Commissioner of Police had breached s 210(1)(e) of the Act.

Order

The Application is dismissed on the basis of having been brought out of time. Damian Sloan Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 June 2023

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