Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales & Anor v Commissioner of Police

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales & Anor v Commissioner of Police - [2007] NSWIRComm 298 - NSWIRComm 2007 case summary — Zoe

[75]

(b) the person is convicted of the offence concerned, the salary withheld under subsection (2) is forfeited to the State unless the appropriate Department Head otherwise directs or that salary was due to the person in respect of a period before the suspension was imposed. (4) If the appropriate Department Head has suspended an officer from duty under this section, that Department Head may at any time remove the suspension. Consideration 21 The respondent does not challenge the Court's power to make binding declarations of rights under the section. Indeed, the jurisdiction of the Commission to grant declaratory relief has long been established and frequently resorted to in relation to public sector employment legislation: see for example Public Service Board (NSW) v Public Service Australia (NSW) (1986) 14 IR 445 (purported suspension of a public servant); State Transit Authority (NSW) v Seamens Union of Australia (1994) 53 IR 349 (entitlement of an employee to salary withheld during a period of suspension); Police Association of NSW v Commissioner of Police (2002) 123 IR 301 (remuneration payable during a period of suspension). 22 The applicants' primary contention for the granting of relief is that the salary withheld as a result of Mr Dabrowski's suspension does not forfeit to the State by operation of s 49(3) because he was not convicted of the charge. The respondent, on the other hand, submits that the decision to suspend Mr Dabrowski was based on two matters, namely the pending criminal charge and the five allegations of misconduct (allegations 2-6). 23 Both parties rely on the correspondence exchanged between them, which has been set out earlier in this judgment, to make good their respective contentions. 24 Before embarking on an analysis of the correspondence however, it is first necessary to refer to some basic principles of statutory construction and the different constructions urged on this Commission by the parties in relation to the proper approach to the statutory scheme under Part 2.7 of the PSEM Act. 25 Consistent with the contemporary approach to statutory construction, it is appropriate at the outset, and not at a later stage when ambiguity might be thought to arise, to consider the natural and ordinary meaning of the words read as a whole and in the context in which they appear. A statement of this approach appears in the joint judgment of Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408:

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It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd , if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent. 26 Neither party has sought to identify any ambiguity or obscurity in the provisions of Part 2.7. Rather, the parties advance two different constructions of s 49. Part 2.7 establishes a scheme for managing the conduct of officers of the Public Service, including administrative officers in the NSW Police Force (as it is currently known). Central to the scheme is the imposition of disciplinary action in the form of punishment for misconduct (s 46), unsatisfactory performance (s 47), and a conviction for a criminal offence (s 49). Disciplinary action is defined in s 42 and includes dismissal, reduction of salary or demotion to a lower position, the imposition of a fine, or, a caution or reprimand. The scheme also sets out the mechanism or procedure for dealing with impugned conduct as a disciplinary matter. Section 44 provides for the issuing of procedural guidelines for the purpose of dealing with allegations of misconduct, and, the taking of disciplinary action against officers who fall within the ambit of ss 44-46 (the provisions dealing with allegations of misconduct). Section 45 sets out the requirements relating to the guidelines, and specifically requires consistency between the implementation of the guidelines and the application of the rules for procedural fairness when undertaking an investigation into allegations of misconduct: s 45(1). 27 Misconduct, which is defined in s 43, includes a contravention of any provision of the PSEM Act or the Regulations or, the performance of duties in such a manner as to justify the taking of disciplinary action. Section 46 outlines a discrete procedure for dealing with allegations of misconduct within the procedural guidelines. A quite separate and different procedure for dealing with convictions for serious offences (that is, offences punishable by imprisonment for 12 months or more) is set out in s 48. 28 Section 49 provides that an officer may be suspended from duty and his or her salary withheld if an allegation of misconduct is being dealt with as a disciplinary matter under the guidelines, or the officer is charged with a serious offence as referred to in s 48. (A disciplinary matter is a matter which is being dealt with under the guidelines.) Under s 49(3), if a decision is made to take disciplinary action with respect to, "the misconduct", or, if the officer is convicted of, "the offence concerned", then the salary withheld may be forfeited to the State. 29 The objects of Part 2.7, as set out in s 41, are: (a) to maintain appropriate standards of conduct and work-related performance in the Public Service;

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Provisions for the forfeiture of property have conventionally been construed strictly. The Act contains an elaborate scheme, the predecessor of which was first introduced into Australian Federal law by the Customs Act 1901 (Cth) . That Act contains a number of provisions for the forfeiture of goods. A strict approach to the construction of forfeiture provisions was endorsed by the majority of the High Court in Murphy v Farmer (1988) 165 CLR 19 affirming the decision in this Court: see Murphy v Farmer (1987) 87 FLR 149; 72 ALR 691 . In the High Court (at 27f) Deane, Dawson and Gaudron JJ explained: "... there were competing arguments which are based on the substantive content of [the section]. They point in opposite directions. On the one hand, it is arguable that the purpose of forfeiture provisions ... is 'to ensure the strict and complete observance of the Customs laws'... and that that purpose would be best served by the automatic forfeiture ... [o]n the other hand, it seems to us to be more strongly arguable that clear words should be required before there is attributed to the Parliament an intention to take the draconian step of imposing automatic forfeiture as a penalty for "any" wrong ... regardless of whether the wrong information was provided as the result of an innocent mistake or excusable ignorance. The effect of the penalty of automatic forfeiture ... can be devastating and quite disproportionate in that it applies regardless of the value of the goods or the importance or effect of the wrong statement which was made ... [i]t is ... in our view, proper to approach the construction of the actual words of the Act on the basis that it is to be presumed that clear words would have been used if it were intended to impose automatic forfeiture. ..." 37 As earlier indicated in these reasons, the applicants have not pointed to any ambiguity or obscurity in s 49 which may render a construction in their favour. In any event, in my view, the meaning of the provision may be determined by reference to the ordinary rules of construction. 38 The provisions of Part 2.7 reveal clearly enough that two separate regimes operate when dealing with allegations of misconduct and offences as disciplinary matters. The procedures governing misconduct allegations are set out in ss 46 to 49. Those sections incorporate the mandatory use of procedural guidelines issued under s 44 when dealing with misconduct as a disciplinary matter. Use of the procedural guidelines is subject to the rules of procedural fairness which must be adhered to throughout the disciplinary process. Section 45 sets out a comprehensive procedure under the guidelines in relation to allegations of misconduct. It includes an initial written advice to the officer, the subject of an allegation (s 45(2)(a)), followed by an opportunity to respond afforded to the officer (s 45(2)(b)), an investigation into the allegation or allegations (s 45(4)(a)), interviews (s 45(4)(b)), and the taking of signed statements (s 45(4)(c)). In contrast, if an officer is charged with a serious offence the procedure is more streamlined. Disciplinary action is not considered until the officer is convicted of the offence as defined under s 48(1). Under s 48(2), prior to taking any disciplinary action, the officer must be given an opportunity to make representations in relation to any disciplinary action which is proposed. 39 Decisions to suspend without pay and forfeiture of salary in relation to alleged misconduct are governed by a combination of ss 49(1)(a) and 49(3)(a). In relation to a charge and subsequent conviction, decisions to suspend without pay and forfeited salary are governed by a combination of ss 49(1)(b) and 49(3)(b). The applicants rely on a construction of s 49 as drawing a direct link between the reason for suspension in s 49(1) and the circumstances in which salary is forfeited under s 49(3). In response, the respondent contends that the ordinary and natural meaning of s 49(3) is that where the salary has been withheld under s 49(2) and either of the factual circumstances set out in s 49(3)(a) and 49(3)(b) are satisfied, then salary so withheld under s 49(2) is forfeited to the State unless the appropriate department head otherwise directs. In other words, any salary withheld during a period of suspension may be subject to forfeiture in the event of disciplinary action taken against the officer for misconduct or, if the officer is convicted of the offence, irrespective of the reason for the suspension. 40 The construction for which the applicants contend, in my view, must be preferred. It is borne out by a plain reading of the words and the structure of the section. Sections 49(1) and 49(2) provide for suspension without pay pending investigation into allegations of misconduct or determination of a criminal charge. Once the misconduct has been investigated or the charge determined and a conviction incurred, a decision to forfeit salary withheld during a suspension may be made in accordance with s 49(3). A decision under s 49(3) that a person's salary is forfeited to the State is the final step following a proven allegation of misconduct or a conviction for a criminal offence. It proceeds directly from the precedent step to suspend an officer without pay and necessarily relates to either the same misconduct or the same offence referred to in s 49(1)(a) and (b) respectively. On a plain reading of the words of s 49, "the misconduct" in s 49(3)(a) is a reference to the same "misconduct" in s 49(1)(a), and, "the offence concerned" in s 49(3)(b) is a reference to the same "offence" in s 49(1)(b). 41 Nor can the construction of s 49 for which the respondent contends be correct. A simple example suffices to illustrate this. If the respondent were correct then an officer who is suspended after being charged with a criminal offence, which is subsequently dismissed, can nevertheless forfeit any salary withheld during the period of suspension if, at a later time, he is cautioned or reprimanded for misconduct which bears no relationship to the subject matter of the charge. Clearly, this would be an unjust result. 42 A similar conclusion was reached by the Full Bench in Seamen's Union of Australia. In that decision, two employees of the respondent were suspended from duty without pay after being charged with the offence of larceny as a servant. The suspensions and withholding of salary were effected under clause 15 of the Transport Administration (SRA Staff) Regulation 1989 (the regulation). At the same time, the respondent instituted disciplinary proceedings against each employee under clause 14 of the regulation. Under that clause, suspension without pay was one of the listed punishments which could be imposed in disciplinary proceedings. The charges against each employee were later dismissed. Following negotiations, the suspensions of both employees were lifted and the disciplinary proceedings under clause 14 withdrawn. The respondent declined however to pay to the employees the salaries withheld during the respective periods of their suspensions. In relation to this refusal to pay the salaries withheld, the Full Bench said (at 353): "In our opinion, a decision not to institute proceedings, or a decision to discontinue or withdraw proceedings as was the case here, automatically discharges any temporary suspension because the power exists only to suspend pending the institution or determination of such proceedings. Similarly, if any such disciplinary proceedings proceeded to a determination that the officer was not guilty and that the charge(s) be dismissed, then, in our opinion, any suspension under cl 15 would also terminate. In these types of cases, namely, no charge(s) laid or discontinuance or acquittal, the officer concerned would be entitled to payment of the salary which had been withheld from him during the period of the suspension. To hold otherwise, it seems to us, would involve not only a strained construction of the Regulation but would also produce unjust or absurd results." 43 In the present circumstances, Mr Dabrowski was charged with an offence which was later dismissed following a defended hearing in a local court. Nevertheless, the respondent continued Mr Dabrowski's suspension without pay and subsequently advised him that the salary so withheld was forfeited to the State because the misconduct allegations 2-6 had been investigated and disciplinary action taken in the form of Mr Dabrowski's dismissal in reliance on s 49(3)(a). This, the respondent was entitled to do, but only if Mr Dabrowski's suspension without pay under s 49(2) was by reason of s 49(1)(a), that is, because he had engaged in misconduct which was being dealt with as a disciplinary matter. 44 It remains to consider the correspondence between the parties in order to discern the reason or reasons for Mr Dabrowski's suspension without pay and the circumstances of the respondent's decision to forfeit Mr Dabrowski's salary withheld during his period of suspension. 45 Mr Dabrowski was informed by letter of 26 November 2004 that he was to be investigated in relation to allegations of misconduct. These allegations were said to arise from, "both the current criminal charges (sic)", and allegations of misconduct which emerged from an earlier preliminary inquiry. The letter then informs Mr Dabrowski that "... in light of the new criminal charges against you, you will be suspended from duty without pay ... until the investigation process and criminal matters are dealt with", and, that the decision will be reviewed monthly, "or once the Court matters and/or investigation into misconduct are resolved (whichever occurs first)". The monthly review letters repeat in exact words the reason for the suspension without pay. Almost all of those letters, with the exception of two, commence with the words, "I refer to previous advice ... regarding your suspension from duty without pay ... pending criminal charges (sic) and investigations into misconduct." The letter of 22 August 2005 states: "In view of the seriousness of the charges (sic) against you, your suspension from duty without pay ... will continue in accordance with s49(1) ...".

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The letter of 20 December 2006 commences with the words: "I refer to previous advice regarding your suspension from duty without pay, pending a determination regarding disciplinary action, pursuant to s49(1)(b) ...", and, "... given the nature of the allegation of misconduct (and the outstanding criminal matters (sic)), I have determined that your suspension from duty, without pay, will continue at this time." 46 During the period in which Mr Dabrowski was charged and suspended from duty without pay, the respondent, at the same time, investigated five allegations of misconduct (allegations 2-6). The first allegation which dealt with the subject matter of the charge was held in abeyance pending determination of the charge. What the correspondence reveals is that after the charge was dismissed, the investigation into allegations 2-6 continued. A request made on Mr Dabrowski's behalf that the salary withheld during the suspension be "restored" and that he be returned to work, was declined. Mr Dabrowski was informed, that his suspension, "... was initiated in relation to both the criminal charges (sic) and investigations into alleged misconduct." 47 The earlier correspondence does not bear this out. Although it is not entirely straightforward, the correspondence from the respondent prior to the dismissal of the charges informs Mr Dabrowski that his suspension without pay is due to the criminal charge. The first letter of 26 November 2004 is written shortly after Mr Dabrowski is charged with the subject offence (9 November 2004). The advice that he will be suspended without pay is preceded by the words, "in light of the new criminal charges (sic) ...". There is no dispute that at that time there was only one offence with which Mr Dabrowski had been charged. The monthly review correspondence uses the same choice of words. The letter of 20 December 2006, which uses a different form of words, nevertheless refers to previous advice concerning Mr Dabrowski's suspension without pay, "pending a determination regarding disciplinary action, pursuant to section 49(1)(b) ...". That section deals with the suspension of an officer from duty who is, "... charged with having committed an offence referred to in section 48". The letter of 22 August 2005 states unequivocally the reason for Mr Dabrowski's suspension, namely, "In view of the seriousness of the charges (sic) against you ...". In addition, in the undated letter sent some time after 25 February 2007 (and after the dismissal of the charge), Mr Dabrowski is told that the respondent is considering whether his salary withheld during his suspension, "under the provisions of sections 48 and 49 ..." ought be forfeited. Since section 48 is concerned with disciplinary action which may be taken if an officer is convicted of a serious offence, it provides a clear indication that the reason for Mr Dabrowski's suspension without pay under s 49 was that he had been charged with committing an offence referred to in s 48. 48 It remains to consider the formula of words repeated in the correspondence, that Mr Dabrowski's suspension from duty without pay would continue, "... until the investigation process and criminal matters are dealt with". The applicants suggest that the words merely refer to the duration of suspension and not the reason for the suspension. The respondent relies on the words as providing support for his contention that the basis of the decision to suspend was twofold, that is, the allegations of misconduct and the charge. I am inclined to the view that the words suggest the duration of the suspension. This is because, in almost all of the correspondence, the words are preceded by the advice to Mr Dabrowski that, "... in light of the new criminal charges" he is suspended without pay. Moreover, the weight of the correspondence, in particular, the letter of 22 August 2005 and the undated letter written some time after 25 February 2007, supports the inference that the reason for Mr Dabrowski's suspension without pay was the fact that he was charged with a serious offence and not because of concurrent allegations of misconduct. 49 I find therefore that the salary withheld from Mr Dabrowski during the period he was suspended without pay from 26 November 2004 until 5 April 2007 should not have been forfeited to the State. I propose to grant the relief sought by the applicants in Order 1 of the amended application. 50 In relation to the second order sought in the amended application, Mr Dabrowski seeks his accrued annual leave and extended (long service) leave accrued during the period of his suspension. There does not appear to be any dispute about this. If, as I have found, the salary payable to Mr Dabrowski during the period of his suspension is not forfeited under s 49(3), then, in my view, he is entitled to be paid, or retain, his statutory entitlements, accruing and accrued, during the period of the suspension: Chate v Commissioner of Police (1997) 76 IR 70. 51 It is unnecessary for me, in view of these findings, to consider the remaining contentions advanced by the applicants for the grant of relief. 52 In relation to order 4A of the amended application, the parties advised the Commission in oral submissions that they would be content, if the Commission made the declarations sought, to engage in discussion as to the quantum payable to Mr Dabrowski. In order to facilitate this course, I propose to make an additional order that the parties confer between themselves as to an appropriate amount and file Short Minutes of Order reflecting the agreed amount within 14 days of the date of this decision. 53 The applicants also seek consequential orders relating to interest and costs. The respondent made no submissions in relation to these two items. I propose therefore to make orders that the respondent pay interest on the amount ordered to be paid from 26 November 2004, which is the date the decision was made to suspend Mr Dabrowski from duty without pay, until 5 April 2007, being the date of his dismissal from the NSW Police Force. Costs will also be awarded to the applicants, as agreed or assessed. Orders

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