Dismissal
44The starting point for our consideration must be the question of whether retirement on medical grounds under s 72A of the Police Act is a dismissal for the purposes of s 241 of the WC Act. If the retirement of the appellant was not a dismissal there was no power in the Commission to entertain the appellant's reinstatement application in the first place and all other considerations on the appeal fall away.
45The question of whether the retirement of the appellant was a relevant dismissal arises out of the challenge in the respondent's notice of contention to the correctness of Newall C's decision in this regard.
46In addressing the dismissal issue at first instance, Newall C accepted that the Commission's power to reinstate an injured worker pursuant to Pt 8 of the WC Act was not enlivened unless the injured worker had been dismissed, as only an injured worker who has been "dismissed" could make an application: WC Act s 241(1), s 243(4), s 244(1) and (2), s 247, s 248(1), (3) and (4) and s 249 (at [54]).
47The Commissioner, however, considered that it was sufficiently apparent from the words of s 72A of the Police Act that the proposition that Mr Robinson was not dismissed within the meaning of Part 8 of the WC Act could not be accepted.
48Newall C held that s 72A of the Police Act provided not only that the Commissioner of Police had a particular discretion, conferred on him by the word "may", but it also set out in terms of what it was that the Commissioner of Police may do, that is, he may cause an officer to be retired. Newall C observed that "To be retired" was a construction involving a transitive verb; it spoke of an action to be performed with respect to someone, in this case an officer, by the Commissioner of Police. Newall C held that the act "to retire" was correctly understood in the context of s 72A as meaning "to remove" or "to compel a person to leave".
49According to Newall C, this meant that the Commissioner of Police, when acting under s 72A of the Police Act, takes an active step to bring the employment to an end - the Commissioner of Police "brings about" the end of the employment: NSW Technical and Further Education Commission v Kerrison [2004] NSWIRComm 269 at [48]. Newall C observed:
[66]...The employee may not wish to contest this decision; indeed, might even have asked that it be made, but the sole causative force bringing the employment to an end is the action of the Commissioner.
[67] No matter what the medical evidence, no matter what the parties' agreed view of the situation, and indeed no matter however much in this case Mr Robinson may have been desirous of being medically retired, and even pressed for such an outcome... Mr Robinson could not on any basis bring about his medical retirement himself, or even be a party to the decision to bring the employment to an end. The decision was not consensual. Only the Commissioner could, and did, bring the employment to an end by means of medical retirement.
50Newall C also dealt with the proposition that the Commissioner of Police had no discretion to exercise under s 72A of the Police Act and was bound by the section to effect a medical discharge. Newall C held this was not correct. At [72] and [75] the Commissioner stated:
[72] On the plain words of s.72A that is not so. Such an approach improperly conflates the actual structure of the section. The satisfaction of the matters set out at subss(a) and (b) are only sufficient to bring the matter to the Commissioner's attention; they do not conclude the issue. Even if the requirements of subss(a) and (b) are met, the Commissioner must necessarily decide whether or not he will do what the Act provides that he 'may' do.
...
[75] That one would normally expect the discretion to be exercised in a certain way if the preconditions for its exercise are met does not at all mean that there is no discretion if they are in fact met, or even that it would necessarily be unreasonable in a given case to exercise the discretion otherwise. Were that to be the intended effect of the statute the parliament may have been expected to so provide, rather than granting an unfettered discretion by the plain words of the statute.
51Newall C accepted that Mr Robinson actively pressed for a medical discharge and took active steps to give effect to the decision to enable him to receive the death and disability benefit under the D&D Award. Despite these findings, the Commissioner held that consent was not a determinative factor:
[84] However much Mr Robinson may have wished to be medically discharged, and whatever he might have done to provide information and encouragement toward the process, even to the extent of arguing his case, he had no control at all over the recommendation put by the respondent's FTCU [Fitness to Continue Unit] to the MDRP [Medical Discharge Review Panel], nor did he have any input into or control over the recommendation that the MDRP made to the Commissioner. Either recommendation might have been, for all Mr Robinson knew, a recommendation that he not be discharged.
[85] His consent or otherwise was not a determining factor. The decision was out of his hands.
[86] And it was out of his hands for a further reason made clear by the words of s.72A of the Police Act to which I have earlier referred, that is that the Commissioner was required to exercise a discretion bestowed by the use of the word 'may' in s.72A. Mr Robinson patently could not and did not exercise the statutory power to cause him to be retired which only the Commissioner could, and did, exercise.
52Proceeding on an agreed basis that the Commissioner of Police was the employer of Mr Robinson (see s 85 of the Police Act), the respondent submitted on the appeal that the medical retirement of the appellant under s 72A of the Police Act did not amount to dismissal on three grounds:
(a) On a proper construction of s 72A, upon the requirements set out having been met, the respondent is obliged in law to retire a police officer on medical grounds;
(b) On a proper construction of s 72A, the respondent is obliged to exercise the discretion on bona fide grounds and reasonably; or
(c) The appellant consented to the outcome of medical retirement made under s 72A.
53Broken down into its component parts, s 72A of the Police Act provides that if:
(1)a non-executive police officer
(2)is found on medical grounds
(3)to be unfit to discharge or incapable of discharging
(4)the duties of the officer's position, and
(5)the officer's unfitness or incapacity appears likely to be of a permanent nature, and
(6)has not arisen from actual misconduct on the part of the officer, or from causes within the officer's control,
the Commissioner may cause the officer to be retired.
54There was no issue that Mr Robinson was a non-executive police officer who was found on medical grounds to be unfit to discharge the duties of his position as sergeant of police and that the unfitness was of a permanent nature that had not arisen from actual misconduct on the part of Mr Robinson, or from causes within his control.
55Where the provisions of s 72A(a) and (b) have been satisfied, the Commissioner of Police may cause the officer, in this case Mr Robinson, to be retired and, indeed, that is what was done.
56Neither party addressed the origins of s 72A. The section was inserted into the Police Act by the Police Amendment Act 2007. It appears from the second reading speech (Hansard, Legislative Council, 27 November 2007) that the purpose of the amendment was to make the Police Act consistent with s 25 of the Public Sector Employment and Management Act 2002 ("PSEM Act") (since repealed), which was in the same terms as s 72A now is.
57It also appears that prior to the insertion of s 72A of the Police Act the Commissioner of Police had a discretion to retire police officers who were hurt on duty on the ground of physical or mental incapacity and pay them a lump sum payment provided they were not a contributor to the Police Superannuation Fund: s 216, since repealed.
58Section 216 became otiose in 2005 upon the introduction of a new Death & Disability Insurance Scheme and medical discharge process. This was a scheme created through the D&D Award. The purpose of the Scheme was to provide police officers that were employed on or after 1st April 1988 with a safety net should they suffer a debilitating injury or illness rendering them incapable of performing their pre injury duties and unable to be placed in alternate suitable police duties. The Scheme covered Death/TPD (Total Permanent Disablement) and PPD (Partial Permanent Disablement) for officers injured both on and off duty.
59Curiously, s 72A of the Police Act was not inserted until some two years after the Death & Disability Insurance Scheme and medical discharge process was introduced. Clearly, however, s 72A confirmed the right of the Commissioner of Police to retire a police officer once the provisions of the section are satisfied and provided the "gateway" to benefits under the D&D Award.
60Referring back to the PSEM Act, it would seem that the use of the word "retired" in that Act was for superannuation purposes. The superannuation schemes applying to officers of the public service provided for benefits to be paid where an officer was retired due to invalidity, including partial and permanent invalidity.
61In relation to police officers, it would not appear the use of the word "retired" in s 72A of the Police Act has any special connotation. The section was inserted in the Police Act more as a matter of convenience and consistency and to make clear the Police Commissioner's power to bring the employment of a police officer to an end if he or she were medically unfit to continue.
62Although s 72A is the "gateway" to benefits under the D&D Award, those benefits do not specifically depend on the Commissioner of Police having caused the officer "to be retired". The D&D Award does not mention the state of being retired. However, one of the "intentions" of the D&D Award was to "Provide benefits on medical discharge in the event that an on duty or off duty injury results in the death or total and permanent disablement or partial and permanent disability of a police officer" (see cl 1.2.1). An officer whom the Commissioner of Police "caused to be retired" under s 72A would, subject to the terms of the D&D Award, be entitled to benefits under that Award on the basis the officer had been medically discharged from the NSW Police Force. The Police Regulation (Superannuation) Act 1906, which also provides for benefits to officers who suffer a disability and are no longer capable of exercising the functions of a police officer, does refer to officers who are retired because of the disability, but it also refers to them as having been "discharged" (see for example s 10(1)(a)). "Retired" is defined as including "discharged" (see s 10(1)).
63It seems to us that where the Commissioner of Police causes an officer to be retired because the officer appears to be permanently unfit to discharge the duties of the officer's position, the Commissioner is removing the officer from his position; he is discharging the officer from his employment with the NSW Police Force, or terminating the officer's employment for the reason that the officer is no longer capable of functioning as a police officer because the officer is medically unfit.
64The decision to cause an officer to be retired lies with the Commissioner of Police provided the conditions in s 72A(a) and (b) of the Police Act are satisfied. We do not agree with the respondent that if s 72A(a) and (b) are satisfied the Commissioner of Police is obliged to retire the officer in the absence of any discretion to do otherwise and, therefore, causing the officer to retire is merely an inevitable administrative or procedural act flowing from the statute and not a decision by the employer to dismiss.
65The use of the word "may" in our opinion, injects a discretionary element into the Commissioner's decision and if an officer is permanently unfit, he is only unfit to discharge the duties of his or her position. The evidence indicates that a comprehensive program exists within the NSW Police Force directed at injury management. The D&D Award reflected this: cll 9.2 and 9.3 of the Award provided in respect of officers suffering a partial and permanent disability:
9.2 There is a mutual obligation on both the employer and injured officer to identify suitable police positions for redeployment. However, it is the injured officer's responsibility to accept a reasonable offer of a suitable police position made by the employer, which may include transfer to another location. A failure to accept one of three (3) reasonable offers as per the Permanent Restricted Duties Policy of a suitable police position will jeopardize any benefits or entitlements payable under this Award and may result in medical discharge.
9.3 A police officer who suffers an on duty injury shall receive rehabilitation/retraining consistent with agreed policies leading to a return to pre-injury employment wherever possible.
9.3.1 Where a return to pre-injury employment is not possible, as determined by HealthQuest, or other medical assessor agreed by the parties, the officer will be considered to be suffering a partial and permanent disability and opportunities for placement in a suitable police position or as a permanent restricted duties police officer will be sought. At the same time, the police officer, with their consent, will be considered for redeployment to an administrative officer position.
9.3.2 If placement in a police position within the NSW Police is not possible and redeployment to an administrative officer position is not agreed to by the officer, the employment of the police officer may be terminated. In such circumstances the police officer, provided they have satisfied their mutual obligations, shall be paid a lump sum payment in accordance with Annexure B to this Award.
66We note the reference in cl 9.3.2 of the D&D Award that "... the employment of the police officer may be terminated." This is precisely what occurred in Mr Robinson's case and is consistent with the Police Commissioner's power under s 72A of the Police Act to "cause the officer to be retired."
67The respondent, nevertheless, submitted in the alternative that if there did exist a discretion in the Commissioner of Police, the Commissioner was obliged to exercise the discretion on bona fide grounds reasonably and if the outcome of the injury management process was that the officer should be medically retired the Commissioner was required to exercise his discretion in accordance with any recommendations to that effect. In other words, it was not the Commissioner of Police actively deciding to bring the employment to an end or to dismiss the officer, but rather it was the only available outcome, dictated by the statute, if no other positions were obtainable for the disabled officer.
68Section 72A of the Police Act places a duty on the Commissioner of Police to be satisfied the preconditions prescribed by the section have been satisfied. That is, the Commissioner must have been relevantly satisfied in this case that:
(1)the appellant was found on medical grounds to be unfit to discharge the duties of a police sergeant;
(2)the appellant's unfitness appeared likely to be of a permanent nature; and
(3)the unfitness had not arisen from actual misconduct on the part of the appellant, or from causes within the appellant's control.
69There seems to be little difference in principle to the Commissioner having to be satisfied of these three preconditions and having to be satisfied under s 181D of the Police Act that, based on reports and other material provided to him, he does not have confidence in a police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. If the Commissioner does not have the necessary confidence he may remove - that is dismiss - the police officer.
70In other words, the decision to cause an officer to retire is one ultimately for the Commissioner of Police, as employer, having been satisfied as to the statutory preconditions. This conclusion is not inconsistent with the decision of the Full Bench in New South Wales Technical and Further Education Commission v Valda June Kerrison [2004] NSWIRComm 369. There it was determined that TAFE senior management had no relevant expertise to make a finding as to medical fitness or incapacity. The Full Bench held that where there was evidence of a medical nature meeting the conditions set out in s 20 of the Technical and Further Education Commission Act 1990 (a provision very similar to s 72A of the Police Act), if the medical opinion favoured retirement with the pre-conditions having been met, it would normally be expected that the decision to retire would be made by TAFE administration. Nevertheless, the Full Bench acknowledged the discretion to terminate was exercised by TAFE and not by HealthQuest issuing a medical opinion.
71We accept that the Commissioner of Police will largely be directed by the medical opinion in exercising his discretion to terminate. However, if the Commissioner of Police is satisfied, for instance, that the officer's unfitness arose from actual misconduct on the part of the officer - which is not a medical consideration - he will presumably decide not to cause the officer to be retired (but may instead remove the officer under s 181D because he has lost confidence in the officer due to the officer's misconduct). That would have significant implications for the officer under the D&D Award. Without a decision having been made under s 72A of the Police Act retiring or discharging the officer on medical grounds, no benefit is available under the D&D Award (we note that the D&D Award has been rescinded and is to be replaced by an approved death and disability insurance policy: see Pt 9B of the Police Act and Hahn v Commissioner of Police [2014] NSWIRComm 13).
72The respondent's third contention was that the appellant consented to the outcome of medical retirement made under s 72A of the Police Act. There is no doubt, as Newall C found, Mr Robinson actively pressed for a medical discharge and took active steps to give effect to the decision to enable him to receive the death and disability benefit under the D&D Award.
73The point of the respondent's submission regarding consent was that termination of a worker's employment is not to be regarded as a dismissal, as that term is understood in industrial jurisprudence, because the employee gave his or her consent to ending the employment relationship.
74This proposition is derived from those authorities dealing with dismissal in the context of unfair dismissal. In Smith v Director-General of School Education [1993] NSWIRComm 134; (1993) 31 NSWLR 349 the Full Bench considered the meaning of a "dismissal" for the purposes of Pt 8 - Unfair Dismissals (ss 245 to 255) of Ch 3 of the Industrial Relations Act 1991 ("1991 Act"). These were the predecessor provisions to Pt 6 of Ch 2 of the IR Act, which deal with unfair dismissals.
75In Smith, the Full Bench relevantly found as follows at 365-366:
We apprehend no real issue may be taken with the ordinary meaning of the word "dismissal" as so applied to s.245, and, indeed, it seems to us that it is in that defined sense of an employee being sent away from employment that unfair dismissal cases in industrial jurisprudence have been concerned. The terms of s.245 of the Industrial Relations Act would suggest no latent limitation in that respect. Therefore, we find no difficulty in accepting the ordinary meaning of "dismissal" suggested by Brereton J. in Ex parte Wurth as being "the termination of services by the employer without the employee's consent"; we would add that where an employee does not freely consent to the termination, understood in a broad sense, then the circumstances may still amount to a dismissal by the employer as a constructive dismissal....
76The 1991 Act, in Pt 7 of Ch 3, contained the provisions relating to the protection of injured workers that now appear in Pt 8 of the WC Act. These provisions then made an appearance in Pt 7 of Ch 2 of the IR Act and remained in the IR Act until 2006. The IR Act was amended in 2006 to transfer the provisions of Pt 7 to the WC Act. The second reading speech in relation to the Industrial Relations Further Amendment Bill 2006 (Hansard, Legislative Assembly, 24 October 2006) seems to suggest that the reasons for the transfer was to avoid the potential effect of the Commonwealth Government's WorkChoices legislation overriding State law aimed at protecting injured workers.
77It has generally been accepted since Smith (if not before) that a dismissal is "the termination of services by the employer without the employee's consent". Having regard to its historical cognate relationship to unfair dismissal provisions in successive legislation, there is no basis to believe the term "dismissed" in s 241 of the WC Act is used in any different sense.
78However, it does not seem to us open to conclude that because the appellant actively worked to secure his medical discharge that may be regarded as giving consent and, therefore, he was not dismissed for the purposes of s 241 of the WC Act.
79That does raise the question why it could be thought it was the legislature's intention to allow for a situation whereby a police officer may agitate strongly for his or her medical discharge on the ground he or she is permanently unfit (and consequently receives a lump sum payment in recognition of the loss of a career), is discharged on the very basis the officer agitated for, and in a relatively short space of time is able to seek reinstatement to his or her former position under s 241 of the WC Act, contending as is the case here) there is no obligation to pay back the lump sum payment.
80Nevertheless, we consider that Newall C was correct. Section 72A of the Police Act does not countenance the notion of consent; it is entirely irrelevant. The Commissioner of Police does not act on the basis of an officer's consent to be medically discharged or retired. We have earlier set out the preconditions about which the Commissioner of Police must be satisfied before exercising his discretion to cause an officer to be retired and those preconditions do not directly or indirectly include the officer's consent.
81There is a sense of mutuality about the word "consent": the parties to a transaction or a course of conduct give their assent or indicate their agreement, regardless of whether only one party proposed the transaction or course of conduct. In the context of termination of employment where an employee consents, for example, to voluntary redundancy and the employer acts on that consent there will be a mutually agreed outcome, namely, voluntary separation ending the employment relationship. That does not amount to a dismissal in the way that term is understood in industrial jurisprudence. A dismissal involves involuntary separation, the separation usually being at the initiative of the employer without the consent of the employee. Whilst Mr Robinson was more than enthusiastic about being prepared to give his consent to being medically discharged, agreement was not required and was not a feature of the separation in this case.
82One cannot conclude, therefore, that the Commissioner of Police, in making the decision to cause the appellant to be retired, did so under the terms of s 72A of the Police Act on the basis of the appellant's consent. The appellant may have agitated for a medical discharge and certainly agreed with the Police Commissioner's decision to cause him to be retired, but the retirement decision was not made or executed on the basis of the appellant's consent.
83Consequently, it cannot be concluded that for the purposes of s 241 of the WC Act, the appellant gave his consent and the employer acted on that consent in terminating the appellant's employment.
84The Commissioner of Police caused the appellant to be retired in accordance with his power to do so under s 72A of the Police Act. The decision to cause the appellant to be retired was a decision to medically discharge the appellant from his employment on the basis of, inter alia, unfitness that appeared likely to be permanent. The medical discharge of the appellant under s 72A gave the appellant access to benefits under the D&D Award. One of the meanings attributed to the verb "discharge" in the Macquarie Dictionary Online is "to relieve or deprive of office, employment etc.; dismiss from service".
85We mentioned earlier our query about a legislative scheme that enabled a permanently incapacitated officer to be medically discharged, receive a lump sum payment for loss of career then within a relatively short space of time apply to be reinstated under s 241 of the WC Act whilst resisting repayment of the lump sum. However, we note that s 72A(b) of the Police Act provides that the Commissioner of Police need only be satisfied the incapacity " appears likely to be of a permanent nature". That would seem to countenance the possibility that the incapacity may not ultimately prove to be permanent. In which case there is no reason why a police officer should be discriminated against by refusing access to the provisions of Pt 8 of the WC Act on the basis the officer was not "dismissed".
86We find there was no error on the part of the Commissioner at first instance in determining the appellant was dismissed for the purpose of s 241 of the WC Act.