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[2011] NSWIRComm 3
Industrial Relations Commission (NSW)
2010-11-18
Walton VP, Kavanagh J, Haylen J, Boland J, Marks J
Original judgment source is linked above.
Mr A A Hatcher SC with Mr D Nagle of counsel (Appellant) Mr M J Kimber SC with Mr A Searle of counsel (Respondent) W G McNally Jones Staff (Appellant) Bartier Perry (Respondent) File Number(s): IRC 659 of 2010
DECISION OF WALTON J, VICE-PRESIDENT & KAVANAGH J 1This decision concerns an application for leave to appeal brought by Alyson Reid-Frost from a decision of Boland J, President, given in remitter proceedings deriving from orders made by this Full Bench in Commissioner of Police v Reid Frost (2010) 92 IR 363 (' Reid-Frost ' and 'the former appeal'). 2Whilst the majority determined the former appeal upon the basis that Marks J had failed to deal with merit issues required to be determined in a review under Div 1C of Pt 9 of the Police Act 1990 ('the Act') (and reached erroneous conclusions as to procedural and validity issues which are not presently relevant), the Commissioner of Police, the respondent in the matter, was correct, in our view, to submit that the conclusions ultimately reached by Boland J in the decision at first instance here under consideration resonated with many similar adverse observations, as those made by Marks J in the first hearing, as to the conduct and attitude of the appellant in her work as a police officer, and ultimately her suitability for service in the Police Force. In a decision which carefully analysed the various allegations about the appellant's conduct, Boland J concluded the removal of the appellant was not harsh, unjust or unreasonable and "the Police Commissioner should not be obliged to continue to accommodate an officer who resists authority, is unable to accept advice or criticism without resorting to exaggerated emotional response, is disruptive in the workplace and is not able to contain consistently a reasonable standard performance". 3Whilst Mr A A Hatcher SC, who appeared for the appellant, brought a probing challenge to his Honour's decision (in which many aspects of the actual merits of the appeal were also canvassed), we do not consider that the appellant has succeeded in sufficiently disturbing the foundation for, or substance of, those conclusions and with that comes, in our view, the conclusion there has not been established a proper basis for the grant of leave to appeal. It follows we do not consider the appellant has demonstrated there is a factual or other error in his Honour's decision of such a nature as to warrant the grant of leave to appeal. 4When seen in this light, the appellant's contention, that a failure of the integrity ground relied upon by the Commissioner (relating to secondary employment) must warrant a reconsideration of the removal, as it constituted one of the central and most significant planks for that removal, has much less force. That is because the remaining ground for a loss of confidence, namely, the conduct of the appellant, has such potency in these proceedings as to sustain the decision to remove the officer. 5Questions of leave are influenced by the demonstration of error. However, statements to that effect, found in judgments of this Commission (see for example, Dlugolecka v Todber Pty Ltd t/as Leisure Lea Gardens Retirement Village (2008) 174 IR 73 at [22]) need to be treated with some care, as ultimately leave will only be granted in cases which raise questions or issues of a particular character or nature (as now well developed in Full Bench authority). 6We do not repeat the oft quoted passages in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381-382 which stands as the locus classicus of the principles for the determination of applications for leave. However, it is appropriate to refer to the judgment of the Full Bench in Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 where it was stated (at [5]): 5. The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188 (2) of the Act , will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]. 7Mr Hatcher relied upon a passage from Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at [4] to argue that leave may be granted where there is an arguable case there were errors in the judgment at first instance and the errors were of such a character as to attract the grant of leave. That passage from Burge was as follows: 4. The extent to which, if at all, those errors be ultimately established is not a matter to be finally determined on the question of leave but only on a full hearing of the appeal. In themselves, we are satisfied they raise serious issues to be tested, are reasonably arguable and are of a nature proper to attract leave to appeal. Further, and importantly both for the question of leave and the appeal itself, the alleged errors so identified demonstrate, contrary to Mr Dixon's submission, that the decision made by Redman C was not solely discretionary in nature. The initial question arising is whether the dismissal was harsh, unreasonable or unjust; in our view, that process involves mixed issues of fact and law: see Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 at pp 181-182, (1999) 88 IR 282 at p 310; and Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at p 59. If that process leads to a decision favourable to the dismissed employee then the next issue involves the exercise of a discretion as to what, if any, relief should be allowed: cf Port Macquarie Golf Club v Stead (64 IR at p 60). We do not, therefore, view the commissioner's decision as the exercise merely of a discretion (emphasis added). 8The appellant's submission was advanced in the context of leave being heard as a separate and preliminary issue. In that regard, it has merit, so long as it brings with it, as counsel for the appellant accepted, the central tenets of the principles stated in Knowles and Hosemans (No 4). What needs to be established is the questions or issues requiring attention in the appeal proceedings are of such character that it is appropriate that leave should be granted having regard to those principles. 9A further observation should be made in this respect. In Humphreys v Cootamundra Ex-Services and Citizen's Memorial Club (2003) 128 IR 37 at [77], the Full Bench, in placing reliance on Burge , held leave may be granted when the correction of error (in that case findings of fact as to serious misconduct) was necessary to ensure the "proper administration of justice". The approach represented an extension to the principles addressed in Knowles and added a refinement to the aforementioned passage from Burge . (The test was subsequently applied in many Full Bench decisions, most recently in Bond v Director General of Education and Training [2010] NSWIRComm 178 at [2] and [41].) 10Thus, challenges which are based on errors which are inconsequential to the ultimate determination of proceedings, such that the appeal lacks utility (see Wei Fen Xian and Rail Corporation New South Wales [2010] NSWIRComm 46 at [23] and [25]; Davies v Kyogle Council [2008] NSWIRComm 90 at [18] and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Department of Industry and Investment [2010] NSWIRComm 121 at [8] and [13]), which go to peripheral matters or which merely descend into a contest as to findings of fact which are, for instance, reasonably open (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at 423-424 and Box Valley Pty Ltd v Price (2000) 97 IR 484) may not attract the grant of leave to appeal. 11These observations are not made in order to be definitive as to the principles for the grant of leave but, rather, to set the background against which we consider the errors contended for by the appellant in support of leave in this case. We shall deal with the seven key issues raised in this respect. 12First, it was submitted Boland J did not adequately deal with the procedural deficiencies contended for by the appellant and, in fact, disposed of the issue in a short paragraph in his decision. It is true his Honour's reasoning was succinct, but the appellant misapprehended the true nature of his Honour's decision in this respect. The trial judge did not gloss over the arguments advanced by the appellant but, rather, attended to the issues in a shorthand way because his conclusions were based upon and substantiated by, in large part, the earlier findings made by the majority in Reid-Frost as well as his findings as to the merits of the case. His Honour's approach was entirely open to him in such circumstances. 13Secondly, it was argued that the failure of the Commissioner of Police to properly have regard to the response of the appellant pursuant to s 181D(3)(c) gave rise to the possibility that, if the Commissioner had properly done so, a different conclusion may have been reached by him such as would warrant a conclusion that the removal should be reversed. It was submitted that there was a real risk of substantial prejudice occurring to the appellant in circumstances where, for example, the issues raised by the appellant as to integrity were not properly taken into account. However, this approach misconceives the statements of law and principle delivered by the majority in Reid-Frost. The issue for determination in s 181E review proceeding is not whether the Commissioner could re-evaluate his decision in the light of the correct understanding of the appellant's response (or finding made in review proceedings) but, rather, whether a demonstrated failure in those reasons constituted a basis, in and of itself, or when taken with other considerations in the proceedings, for a finding that the removal was harsh, unreasonable or unjust. The appellant's contentions as to a failure to properly review the Commissioner's reasons for decision are rejected (although we should not be taken as suggesting that an improper consideration in a review is whether the factors giving rise to a loss of confidence had been removed or alleviated). 14Thirdly, it was further contended for the appellant that the falling away of integrity and competency issues (when properly analysed on the appeal) should have resulted in the matter being dealt with under s 173 of the Act rather than s 181D. It was submitted that the questions raised involved a "consideration of the hierarchy of disciplinary provisions contained in the Police Act , and require[d] an analysis of which provisions are intended to be applicable to issues of conduct and performance that do not involve serious misconduct, particularly where a failure to satisfactorily complete a remedial performance program is concerned". We concur with the respondent, in this respect: the fact that 'performance' and 'conduct' matters are common to both s 173 and s 181D considerations does not constrain the Commissioner's capacity to deal with them via s 181D. We agree that a broad discretion reposes in the Commissioner as to when he may remove an officer, subject to the constraints of the Act regarding a determination of a loss of confidence, and any review conducted under s 181E of the Act. Nor do we consider that this is necessarily a case where s 173 should have been preferred to s 181D. 15Fourthly, we reject the appellant's contention that Boland J fell into error by "not relating his merit findings to the content of the Commissioner's reasons for removal". A review under Div 1C of Pt 9 of the Act requires first a consideration of the reasons given by the Commissioner: Lawrance v Commissioner of Police (No 1) 2010 NSWIRComm 149 at [267], but that analysis does not require a slavish or formulaic approach in which the Commission is required to address each component of the Commissioner's reasons sequentially in a discrete section of the trial judgment, although a separate consideration of the reasons for decision (in whole or in part) may, on some occasions, avoid an apprehension that insufficient attention had been paid to the questions raised by s 181F(1)(a). The same may be said of the appellant's complaint as to the adequacy of reasons. There is no ultimate requirement for a reconciliation of the kind contemplated by the appellant, provided that the trial judge has adequately addressed, in the manner contemplated by s181F(1)(a) of the Act , the reasons for the Commissioner's decision. We do perceive an error of this kind in this matter. 16Fifthly, the appellant correctly submitted, in our view, that a fundamental element of a review under s 181E is the assessment of the particular grounds for the removal given under s 181D(3)(a) (in so far as those grounds were accepted by the Commissioner in his reasons for decision). The scheme of Div 1C of Pt 9 of the Act is such that the removal of a police officer has, as its axis, the laying of formal allegations against which the Commissioner must judge whether he has confidence in a police officer. These grounds must then form the centrepiece of any review under s 181E. Thus, Div 1C requires the laying of formal grounds (s 181D(3)(a)), the provision of reasons for the Commissioner's decision (s 181D(4)) and the mandatory consideration of those reasons in review proceedings (s 181F(1)(a)). (We note that this conclusion also follows from the adoption of the jurisprudence of the Commission in proceedings under Pt 6 of Ch 2 relating to public sector dismissals where it is the question of guilt of a breach of discipline which is central to the determination of s 84 proceedings: see Director General, NSW Department of Education and Training v Sud [2010] NSWIRComm 147 at [41].) 17However, it does not follow that Boland J was involved in an inappropriate exercise of conflation, as contended by the appellant, by commenting upon the inappropriateness of the appellant undertaking secondary employment without approval in the "prevailing circumstances" in the context of the particular allegation as to such employment. This is because the actions of the appellant as to secondary employment resonated with other conduct issues in the proceedings and because the issue had been raised squarely in the case presented by the Commissioner (see s 181F(1)(d)). 18We would note there may well be cases where the nature of the allegations are such that the intermeshing of other considerations with those specified in a ground for removal would be inappropriate, but this is not such a case, given the broad nature of the conduct and competency allegations under consideration. We do not consider there was any denial of procedural fairness in his Honour's approach and, in any event, we consider that his Honour's reasoning, in this respect only played a minor part in his overall analysis as to whether the removal of the appellant was harsh, unjust or unreasonable. 19Sixthly, the appellant contended that Boland J's findings as to the appellant's shortcomings were erroneous because his Honour failed to adequately take into account the failure of the NSW Police Force to comply with the mandatory statutory requirements of Reg 26 of the Police Regulation 2000 requiring formal counselling sessions as part of a remedial performance program. The difficulty with this submission, however, is that, as was contended by the respondent, the failure of the appellant to meet the requirements of the remedial performance plan were not a foundation for the removal, in contrast to other failures of conduct, performance or competence. Further, we agree it was open for Boland J to conclude, on the basis of all the evidence, that, even if Reg 26 had been strictly followed, there was no indication that the outcome would have been any different if there had been compliance by the Commissioner. Even if there was an error in his Honour's judgment (about which we reach no conclusion), we do not consider that the defect identified by the appellant was such as would warrant intervention in the appeal (and the grant of leave). 20Finally, there were contentions advanced by the appellant as to errors of fact. Counsel for the appellant did not (appropriately) develop every factual challenge in the appeal in support of leave, but rather focussed upon the strongest challenges in that respect. Having considered these challenges in that light, we do not consider that they constitute a proper basis for the grant of leave to appeal. The findings of fact made by his Honour (in the examples given) were reasonably open to him. We do propose to make, however, two brief remarks. First, we do not consider that his Honour's approach to the character evidence called by the appellant was based upon a pure exercise of "witness counting". We consider his Honour recognised the character evidence may be an important matter going to the question of whether a removal was harsh, unjust or unreasonable in a particular case (the correct approach), but the nature and the quality of the evidence was not such as to, in this case, warrant any contrary conclusion. 21Further, the appellant raised a question about the weight which was attached to the medical report of Dr Kirby. Whatever may have been the precise limits of the use to which his Honour employed Dr Kirby's report, we do not consider there was any basis to disturb his Honour's findings as to the appellant's personality and attitudes as a police officer (which were based partly upon that report) because such opinions were otherwise sustainable on the evidence before his Honour, particularly given evidence of Detective Inspector Jubelin (to which the medical report was attached). As the respondent contended, Boland J assessed the evidence of Detective Inspector Jubelin based on the record of the proceedings before Marks J and in the light of the conclusions reached by Marks J as to that evidence. Marks J had the advantage of observing Detective Inspector Jubelin over an extended cross-examination and accepted his evidence. In the original appeal against the decision of Marks J, the appellant brought a notice of contention in respect of the evidence of Dr Short which supported the appellant, but we do not consider that approach ( vis vis the evidence of Dr Short) is available in the present context. Hence, there was a proper basis for, on the evidence deriving from the proceeding before Marks J, and Marks J's conclusions as to that evidence, for his Honour to make the adverse findings he did as to the appellant's behaviour, her relationship with senior officers and personality type (in the context of work in the NSW Police Force). 22Having canvassed the broad sweep of issues raised by the appellant, including many having the character of merit arguments, we do not consider leave to appeal should be granted. We would observe, however, that contentions as to leave, even when heard discretely from the merits of an appeal, should not be presented in the form of a de facto merit case. In cases where the 'usual directions' are given, the parties should not be permitted to adopt such an approach.
ORDERS 23We propose the followings orders:
DECISION OF HAYLEN J 24This is the second Full Bench that has been required to deal with the Application by Ms Reid-Frost for reinstatement to the Police Force. Ms Reid-Frost was initially successful before Marks J but that decision was overturned on appeal because the majority formed the view that his Honour had primarily decided the matter by reference to procedural defects and the application of principles of administrative law but had failed to deal with the merits of the case. Boland J, President then heard the matter as to merit issues. His Honour essentially formed the view that Ms Reid-Frost's behaviour and personality made her unsuitable to be reinstated to the Police Force. In the course of reaching that decision, having regard to the manner in which the case came before him, Boland J, President accepted findings of fact made by Marks J, noting that a number of those findings went to the issue of merits. 25The question of leave to appeal has been argued separately, a course, upon reflection, that I am unable to accept as being suitable in the present case. The matters raised against Ms Reid-Frost fell into two broad categories: firstly, an integrity issue and secondly, issues going to her conduct and competency but mainly focusing upon her challenging behaviour, especially when dealing with senior officers. The Commissioner of Police essentially failed in his case on integrity issues but succeeded largely on conduct issues. I accept the following description put forward by the appellant on the Application for Leave to Appeal: (a) the appellant was not the subject of any single allegation of serious misconduct but was the subject of two separate allegations, the first of which consisted of numerous sub-allegations which were relied upon and in an accumulated way said to amount in aggregate to a pattern of behaviour; (b) the four statutory grounds of integrity, confidence, performance and conduct were all relied upon by the Commissioner in deciding to remove the appellant from the Police Force; (c) the reasons given by the Commissioner of Police for the appellant's removal revealed a failure on his part to consider her response to the numerous allegations made against her; (d) the judgment of Boland J contained adverse findings against the appellant on some of the performance and conduct matters, but in relation to many of the matters, including but not limited to the integrity and competence matters, there were either no adverse findings at all or findings in favour of the appellant. 26The case for the Commissioner of Police was that there was an accumulation of many instances, some minor in themselves, that nevertheless warranted the conclusion that Ms Reid-Frost was of a personality type that led her into disrespectful and challenging behaviour in her relationships with colleagues, including senior officers. However, it appears that, early in her career, Ms Reid-Frost was able to obtain promotion and have working relationships with officers and senior officers but there is no doubt that, when she was placed upon a performance review programme, she deeply resented that action and the necessity for it to be taken. She railed against the scrutiny to which she was subjected. There was undisputed evidence from a psychiatrist who rejected the proposition that Ms Reid-Frost had a personality disorder but found that she had suffered from an adjustment disorder and had since recovered. Importantly, she was found to be capable of discharging her duties as a police officer "at a level significantly superior to the average". A real issue therefore arises as to the extent to which the adjustment disorder may have contributed to, or accounted for, the behaviour which brought her to attention. Although the facts are different, it is of some significance that a Full Bench recently acknowledged psychological illness as a significant mitigating factor in removal cases ( Commissioner of Police v Bradley Eade-Smith [2010] NSWIRComm 162). 27The appellant's analysis of the Commissioner's case identified 31 specific matters but only 11 were the subject of either a clear adverse finding or some limited comment. Boland J identified 14 matters of significance, but only 4 were the subject of a clear adverse finding with limited adverse comment in respect of two or three other matters. That brief survey leaves it open on appeal for the Full Bench to analyse the remaining behaviour and determine whether in fact it was behaviour so serious as to warrant termination, especially having regard to the Commissioner's accumulation of conduct approach. The unfairness of the termination is clearly arguable on the appellant's analysis. There were two further matters concerning, firstly, his Honour's use of the principle in Jones v Dunkel (1959) 101 CLR 298, and secondly, the use to be made of a comparison of supporting officer evidence in a particular case as compared with the lower level of supporting officer evidence in the case before his Honour: both matters are of significance and raise arguable error. 28From the very beginning, as this brief summary of the matter indicates, this has been a difficult case and the issues raised on appeal are of such significance that Leave to Appeal should be granted. The factual complexity of the vast number of issues raised against Ms Reid-Frost makes it very difficult to determine the prospects of success but importantly, the appellant has raised an arguable case that errors have occurred that have the capacity to call into question the finding that the removal was warranted and was not vitiated by unfairness. So stated, this is not simply alleged error in the exercise of a discretion not to re-instate: the appeal raises arguable error in relation to the mixed question of fact and law, namely, that the decision of the Commission was harsh, unjust or unfair ( Commissioner of Police v Evans (2008) 153 CLR 144; Allchin v Commissioner of Police (No 2) (2007) 168 IR 170). 29One further matter is deserving of mention. It was argued for the respondent on the appeal that, pursuant to s 188(2), the matter was not of such importance that, in the public interest, leave should be granted. Section 188(1) provides that an appeal to a Full Bench of the Commission may only be made with leave of the Full Bench. Sub-section (2) then requires leave to be granted if the Full Bench forms the specified opinion: once it is established to the satisfaction of the Full Bench that the matter is of such importance then leave must be granted and no discretion exists to do otherwise. Section 188(2), however, does not operate such that the only means of obtaining leave is to establish that the matter is of such importance, that, in the public interest, it should be granted: s 188(2) does not prescribe that test for the grant of leave. The conventional considerations for the granting of leave continue to apply such as: whether in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered by a Full Bench; whether substantial injustice would result if leave was refused supposing the decision to be wrong; and, where a discretion is exercised, the tests propounded in House v The King (1936) 55 CLR 499. In this respect, attention is drawn to the discussion from [51] et seq in Inspector Moore v Blacktown City Council [2003] NSWIRComm 47.
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: 18 February 2011
Reid-Frost
Commissioner of Police
(2007) 168 IR 170
(2000) 97 IR 484
(2001) 105 IR 325
(2008) 153 CLR 144
(2010) 92 IR 363
(2008) 174 IR 73
(2005) 150 IR 263
(2003) 128 IR 37
(1959) 101 CLR 298
(2002) 126 IR 407
(1999) 95 IR 380
(1999) 47 NSWLR 151
(1999) 88 IR 282
(1996) 64 IR 53
(2008) 153 CLR 144
(1936) 55 CLR 499