Robinson v Commissioner of Police

DECISION OF THE COMMISSION 1Glen Robinson ("appellant") was a police officer from April 1991 to June 2011. On 2 June 2011, he was medically discharged pursuant to s 72A of the Police Act 1990 ("Police Act") due to a psychiatric illness. He was made an award payment of $545,067.61 pursuant to the Crown Employees (Police Officers Death and Disability) Award 2005 ("D&D Award"). 2On 18 October 2012, Mr Robinson sought reinstatement to his former position as a Sergeant, Team Leader at Eastern Beaches Local Area Command. Mr Robinson said he had been certified as fit for pre-injury duties and was "fully recovered and fit to return to my employment as a police officer". 3No steps were taken by the Commissioner of Police ("respondent") to reinstate Mr Robinson and on 30 April 2013 he filed a claim under s 242 of the Workers Compensation Act 1987 ("WC Act") for reinstatement. The Commissioner of Police opposed the claim. 4In interlocutory proceedings before Newall C, Mr Robinson sought a determination that the Commissioner of Police was estopped from leading evidence that Mr Robinson was not fit for pre-injury duties. The estoppel was said to be estoppel by convention. Newall C was unable to find that an estoppel by convention was binding on the respondent: Robinson v Commissioner for Police, NSW Police Force [2013] NSWIRComm 1019 at [66]. 5The substantive reinstatement application was then heard by Newall C and in a decision given on 5 December 2013 (Glen Robinson v Commissioner for Police, NSW Police Force [2013] NSWIRComm 1027) the Commissioner dismissed the application. Mr Robinson now seeks leave to appeal and, if leave is granted, to appeal from both the interlocutory decision and the decision dealing with the substantive question of reinstatement.

Background 6The following background information is drawn from the appellant's submissions and appears to be uncontroversial. 7In late 2008 the appellant started to suffer symptoms of anxiety. A Dr Morton subsequently diagnosed him as suffering from Post-Traumatic Stress Disorder ("PTSD"). The appellant was treated, and ultimately returned to full duties on 7 August 2009. He took a period of pre-arranged leave from 6 September 2009 and returned to duty in February 2010 under a new Commander. 8In late June 2010 the appellant reported the development of a back injury associated with wearing the police issued appointments belt. The appellant had by that stage become anxious in his dealing with the new Commander as a result of the Commander's alleged workplace behaviour. 9On 5 July 2010, the appellant terminated his shift and attended upon his local medical practice. He was diagnosed with "anxiety" and he was put off work. He attended upon his normal doctor, Dr Rust, on 7 July 2010. Dr Rust issued a WorkCover Medical Certificate confirming a diagnosis of "anxiety", and confirming that the appellant was unfit for any work. 10The appellant lodged a notification of injury the next day and subsequently a workers compensation claim in relation to that psychological injury ("the Claim"). The Claim was originally disputed but ultimately settled in the appellant's favour. 11By late 2010 the appellant's treating practitioners were recommending that he be medically discharged. The appellant was directed to attend an appointment with an independent medical specialist, Dr Bertucen, in January 2011, which he did. Dr Bertucen's report, dated 31 January 2011, expressed the view that at that stage "Mr Robinson's prognosis is uncertain", but that: In my opinion Mr Robinson is psychologically incapable of returning to work as an operational police officer in the foreseeable future. Despite this however, Mr Robinson has not ruled out the possibility altogether (in an alternate location) after his condition has had time to stabilise further. Personally, I do not feel that this is a feasible option within the next twelve months. ... ... In my opinion... Mr Robinson may well be fit to return to non-operational duties after his condition has stabilised further (perhaps within the next six to twelve months). Of the three options enclosed, I consider that Mr Robinson may be psychologically capable of option two (educational and development officer) or operation three (brief handling manager) after a suitable period of convalescence and treatment. It must be noted that despite undergoing regular therapy with a psychologist and having been reviewed by a psychiatrist, he has so far declined to use psychoactive medications which may well benefit him. It is in view of the fact that Mr Robinson has therefore not yet undergone all reasonable and appropriate forms of psychological management, I am reluctant to state at this point that he is totally and permanently disqualified from all forms of police work. I would strongly recommend that Mr Robinson continue with his current therapist, attend regular psychiatric review, and use the psychoactive medications prescribed. He may be able to return to non-operational police work by late 2011 provided these treatment recommendations have been complied with. I would advise that he be reviewed again by an independent medical examiner (psychiatrist) after four months of continuous treatment (mid 2011). 12Subsequent to Dr Bertucen's report there was correspondence between Dr Rust and the appellant's then Injury Management Adviser (IMA), and between the IMA and the appellant. The IMA determined to "send his [the appellant's] file to the FTC unit [the Fitness to Continue Unit] with the view to medical discharge". In the interim, the appellant continued treatment with his psychologist, Ms Sharman, and continued his attendance upon his nominated treating doctor, Dr Rust. 13The appellant's file was ultimately referred to the Medical Discharge Review Panel, which recommended the appellant's medical discharge on 26 May 2011. The appellant was medically retired from the NSW Police Force effective 2 July 2011. 14In December 2011, the appellant underwent keyhole surgery on his spine to address the back condition he reported in June 2010. 15In mid-October 2010, the appellant had made a complaint to the Anti-Discrimination Board of New South Wales regarding his Commander's conduct towards him in July 2010. The appellant's complaint of unlawful disability discrimination was settled in late February 2012, and on 27 February 2012 a formal letter of apology/letter of regret was provided to the appellant. 16On 27 February 2012, his psychologist, Ms Sharman, again assessed the appellant. The following day she wrote to the respondent's case manager noting: there has been a satisfactory resolution of the workplace bullying issue; Mr Robinson's mood and overall functioning improved dramatically; his spine operation had been successful; and he had been actively looking for work. Ms Sharman said Mr Robinson was now ready to terminate therapy. On 2 March 2012 Ms Sharman wrote to Dr Rust confirming what she had said in her letter to the case manager. 17On a WorkCover Medical Certificate described as "Final" issued on 5 April 2012, Dr Rust certified the appellant "fit for pre-injury duties from Thursday, 5 April 2012". The "Management Plan" was recorded as "Back to normal workforce". That state of fitness and management plan was repeated in a WorkCover Medical Certificate described as a "Progress" certificate issued on 6 September 2012. 18By around August 2012 the appellant had begun to consider a return to the NSW Police Force and consulted Ms Sharman. He attended upon her office on 25 August 2012 and completed a number of tests. He obtained a report dated 29 August 2012 confirming an absence of any mental health issues and expressing an opinion that Mr Robinson has fully recovered. 19In or around September 2012, the appellant wrote to Dr Rust to seek his opinion regarding a return to the NSW Police Force. On 4 October 2012, Dr Rust prepared a certificate that confirmed at that time: This is to certify that I believe Mr Glen B Robinson will be fit to return to duties in the NSW Police Force in his previous or similar position as a general duties team leader, Sergeant. He was previously medically discharged in June 2011 on the grounds of a medical condition (Adjustment disorder with anxiety). He has had extensive treatment for this condition by a psychologist and his symptoms have resolved. I am confident he is able to return to full duties since the causative issues have also been dealt with. 20On 18 October 2012, the Appellant wrote to the Commissioner of Police seeking reinstatement to his former position as a Sergeant, Team Leader at Eastern Beaches Local Area Command under s 241 of the WC Act, referring, inter alia, to the fact that he had been certified as fit for pre-injury duties and that he was "fully recovered and fit to return to my employment as a police officer". 21In December 2012, the respondent ceased paying the appellant workers compensation payments on the basis that he had been certified fit for pre-injury duties. 22Between 18 October 2012 and 30 April 2013, the appellant corresponded with various representatives of the respondent in relation to his application for reinstatement. In a letter, dated 21 March 2013, in response to representations from the appellant for reinstatement the respondent stated, "If you satisfactorily meet the requirements for reinstatement, the NSW Police Force will reinstate you to the duties and rank at the time of your discharge... " 23Having not been provided a final determination of his application for reinstatement, on 30 April 2013 the appellant commenced the reinstatement proceedings.

Relevant legislation 24There are a number of relevant legislative provisions to be considered. The main provisions are reproduced below. Other provisions will be addressed as they arise in the course of the decision. 25The provision under which Mr Robinson was discharged was s 72A of the Police Act, which is in the following terms: 72A Incapable non-executive police officer may be retired If: (a) a non-executive police officer is found on medical grounds to be unfit to discharge or incapable of discharging the duties of the officer's position, and (b) the officer's unfitness or incapacity: (i) appears likely to be of a permanent nature, and (ii) has not arisen from actual misconduct on the part of the officer, or from causes within the officer's control, the Commissioner may cause the officer to be retired. 26Part 8 of the WC Act contains provisions in relation to the protection of injured workers from dismissal. Relevantly, s 240(2) defines "injured worker": (2) For the purposes of this Part, an injured worker is a worker who receives an injury for which the worker is entitled to receive compensation under this Act or the Workers' Compensation (Dust Diseases) Act 1942. 27Section 241 provides that an injured worker who has been dismissed from his or her employment may apply to the employer to be reinstated: 241 Application to employer for reinstatement of dismissed injured worker (1) If an injured worker is dismissed because he or she is not fit for employment as a result of the injury received, the worker may apply to the employer for reinstatement to employment of a kind specified in the application. (2) The kind of employment for which the worker applies for reinstatement cannot be more advantageous to the worker than that in which the worker was engaged when he or she first became unfit for employment because of the injury. (3) The worker must produce to the employer a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement. 28Section 242 provides that where the employer does not reinstate the worker, the worker may apply to the Industrial Relations Commission for a reinstatement order: 242 Application to Industrial Relations Commission for reinstatement order if employer does not reinstate (1) If an employer does not reinstate the worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for a reinstatement order. (2) An industrial organisation of employees may make the application on behalf of the worker. (3) The Industrial Relations Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured worker was dismissed. 29Section 243 provides that the Commission may order the employer to reinstate the worker in accordance with the terms of the order: 243 Order by Industrial Relations Commission for reinstatement (1) The Industrial Relations Commission may, on such an application, order the employer to reinstate the worker in accordance with the terms of the order. (2) The Industrial Relations Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), but only if the Commission is satisfied that the worker is fit for that kind of employment. (3) If the employer does not have employment of that kind available, the Industrial Relations Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being: (a) employment of a kind that is available but that is less advantageous to the worker, or (b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation). (4) If the Industrial Relations Commission orders the worker to be reinstated, it may order the employer to pay to the worker an amount stated in the order that does not exceed the remuneration the worker would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission.

Interlocutory decision 30In the interlocutory proceedings, Newall C was required to determine the question of whether there was an estoppel by convention binding on the Commissioner of Police such that he could not deny Mr Robinson was fit for pre-injury duties. Newall C held there was no estoppel. 31The common assumption said to underpin the estoppel was said to be an assumption that the appellant was fit for his pre-injury duties with the respondent. That common assumption was said to be created by the conduct of the applicant and, on the respondent's part, the conduct of the respondent's workers compensation insurer in relation to the appellant's workers compensation claim and, in particular, the conduct of the insurer between 28 November 2012 and 22 March 2013. 32The Commissioner summarised the conduct said to give rise to the estoppel as follows: [6] On 28 November 2012 the insurer wrote to the applicant prefacing its letter by saying 'as you are fit for pre-injury duties...' On 20 February 2013 the insurer wrote again to the applicant saying in terms 'As you are fit for pre-injury duties ...I will be preparing your file for closure.' These two occasions were said by counsel for the applicant to be the particular statements (although not the only evidence) of the joint assumption entered into by the parties. [7] The respondent's insurer ceased paying the applicant workers' compensation benefits under the WC Act on 3 December 2012. The insurer closed the applicant's workers' compensation claim file on or about 20 February 2013. [8] Both these actions were carried out by the insurer on the basis that the applicant had provided advice on 22 November 2013, supported by a medical certificate to this effect, that he was as a matter of fact fit for pre-injury duties. [9] The applicant made no challenge to the decision of the insurer to cease payments and close his file. 33The Commissioner discussed the nature of estoppel by convention referring to a number of authorities in the process, addressed the submissions of the parties on the issue and determined there was no estoppel, essentially on the basis that "a party has made a representation of fact and it has been acted on by the representee". This was not an estoppel by convention. In Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Aust) Ltd [1986] HCA 14; (1986) 160 CLR 226 at 244 the High Court stated: Estoppel by convention is a form of estoppel founded not on a representation of fact made by a representor and acted on by a representee to his detriment, but on the conduct of relations between the parties on the basis of an agreed or assumed state of facts, which both will be estopped from denying. 34On the question of agency, the appellant had contended that the respondent's insurer was the respondent's agent for the purposes of the reinstatement application under s 242 of the WC Act. The Commissioner held: [62] The point is that it is clear that the applicant did not believe, or assume, that the insurer could bind the respondent as to the respondent's response to his application to be reinstated in employment. Quite the opposite; he accepted and proceeded on the basis that the respondent would be acting independently to the insurer. That was also the insurer's view, and having been apprised of that view the applicant proceeded on that basis. [63] That being so, an agreement between the applicant and the respondent to proceed on the basis of a joint assumption simply cannot be said to arise from the applicant's communications with and conduct towards the insurer, or its toward him. The absence of such an agreement is fatal to the estoppel claimed. [64] Even if I were wrong in holding that the insurer has not been shown to be an agent for the respondent in respect of its workers' compensation payments, the establishment of an estoppel requires more; it requires proof of an agreement to proceed on a joint assumption. In my view that cannot be made out, and certainly in my view the respondent cannot be held to be shown to have so agreed. [65] In this context I observe that the insurer accepted the applicant's long term goal as being to return to employment with the police, as is set out in the CMP Plan of 3 January 2013, does not mean that the NSW Police accepted that that was so.

Substantive decision 35The Commissioner was required to address three primary issues: (1)Whether Mr Robinson had been "dismissed" within the meaning of s 241 of the WC Act. As the Commissioner observed at [54], the Commission's power to reinstate an injured worker pursuant to Pt 8 of the WC Act is not enlivened unless the injured worker has been dismissed, as only an injured worker who has been "dismissed" may make an application. (2)Whether an estoppel by convention operated to prevent Mr Robinson from denying that he is permanently unfit or permanently incapacitated from working as a police officer. (3)Whether Mr Robinson, on the medical evidence, was fit for the kind of employment to which he sought to be reinstated or fit to be re-employed in another position. 36In relation to the three primary issues, the Commissioner: (1) held Mr Robinson had been relevantly dismissed; (2) held there was no estoppel by convention; and (3) was not persuaded that Mr Robinson was fit within the meaning of Pt 8 of the WC Act. Consequently, the application for reinstatement was dismissed.

Appeal grounds 37There were 14 grounds of appeal. Seven of the grounds asserted error in relation to the Commissioner's interlocutory decision regarding estoppel by convention. The remaining seven grounds challenged the Commissioner's substantive decision in so far as the Commissioner found the appellant was not fit for employment within the meaning of Pt 8 of the WC Act. It was also asserted the Commissioner erred in effectively requiring the appellant to demonstrate that there was no risk of relapse if he were returned to any form of police work. 38We shall deal with the appeal grounds in the course of our consideration of the appeal.

Notice of Contention 39The respondent filed a notice of contention. The notice contended that the Commissioner's decision should be affirmed for the reasons set out in the decision, but also on additional grounds, they being that: (i) the appellant's medical discharge did not amount to a dismissal and, therefore, did not enliven the Commission's power to reinstate to a kind of employment for the purposes of s 241 of the WC Act; (ii) the appellant was estopped from denying he was permanently unable to perform the duties of a police officer; and (iii) the Commissioner was not empowered to make a reinstatement order under Pt 8 of the WC Act because it would be inconsistent with functions under the Police Act with respect to police officers hurt on duty for the purposes of s 405(1)(b) of the Industrial Relations Act 1996 ("IR Act"). 40The notice also contended that if leave to appeal was granted and the appeal upheld, the matter should be remitted in order for it to be determined what kind of employment was appropriate and if the appellant was ultimately reinstated the appellant should be required to repay the benefit he received under the D&D Award.

Leave to Appeal 41The appeal raises matters of such importance that, in the public interest, leave should be granted. The appeal involves the question of whether the appellant's retirement under s 72A of the Police Act amounted to a dismissal, thereby enlivening the Commission's power to reinstate to a kind of employment for the purposes of s 241 of the WC Act. This has implications for whether police officers who are retired for what appears to be a permanent disability are to be provided with an opportunity to be reinstated if the disability is later overcome and the police officer is fit for employment. 42The appeal also concerns the novel question in this jurisdiction that the common law doctrine of estoppel by convention is to be applied in matters under Pt 8 of the WC Act. 43Finally, the appeal raises the important question of whether the likelihood of relapse of a psychiatric disorder if an injured worker is reinstated in his or her former position is a matter to be taken into account by the Commission in considering whether the worker is fit for employment within the meaning of s 243 of the WC Act.

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.

Estoppel by convention 87Estoppel only applies for the purpose of the transaction or relationship in respect of which the convention was adopted: Ryledar Pty Ltd & Anor v Euphoric Pty Ltd [2007] NSWCA 65; (2007) NSWLR 69 at [232] (per Tobias JA); J C Equipment Hire Pty Ltd v The Registrar of the Workers Compensation Commission of NSW [2008] NSWCA 43; (2008) 70 NSWLR 704 at [73]-[79]. 88An example of different transactions arose in J C Equipment Hire. The respondent had submitted that the acceptance by the appellant's insurer that the respondent had sustained a 16 per cent whole person impairment constituted a conventional estoppel of the nature of that described by Dixon J in Grundt v The Great Boulder Proprietary Gold Mines Limited [1937] HCA 58; (1937) 59 CLR 641 at 676. 89After observing that estoppel only applies for the purpose of the transaction or relationship in respect of which the convention was adopted, Tobias JA (Campbell and Bell JJA agreeing) stated: [77] In the present case, it was submitted by the appellant that the mutual assumption of fact adopted by the parties of a 16% degree of permanent impairment was adopted only as the conventional basis of their relationship for the purpose of calculating the entitlement of the respondent to permanent impairment compensation under s 66 of the 1987 Act and for no other purpose. [78] In my view this contention of the appellant is clearly correct. The evidence does not establish, nor could it in the circumstances, that the mutual adoption by the parties of a degree of permanent impairment of 16% for the purpose of the s 66 calculation was so adopted by them for all purposes relating to any claims which might be made under the Acts, including a claim for work injury damages. [79] Accordingly, in my opinion the submission by the respondent that an estoppel by convention existed with respect to the agreement by the insurer that for the purpose of calculating s 66 compensation the respondent had sustained a 16% degree of permanent impairment, was confined to that claim and did not constitute adoption by the parties of that degree of permanent impairment for any other purpose. It follows that the respondent's claim in its notice of contention based on conventional estoppel should be rejected. 90In the proceedings before Newall C the respondent submitted that the transaction concerning the workers compensation payments did not extend to any part of the application under s 242 of the WC Act, as that was a discrete transaction. The appellant had submitted that the WC Act provided a suite of rights and entitlements that were relevantly indivisible and constituted one transaction. If the estoppel lay, according to the appellant, it operated in respect of all relevant rights and obligations, including s 242. 91A related question of agency arose before Newall C. The respondent had contended the insurer, Employers Mutual ("EM"), if it was an agent, could only ever have been an agent for the purpose of determining the obligation, if any, to make payments under the WC Act. Further, that the appellant had not established that the insurer had authority as an agent to operate in any other area. It followed, it was submitted, that if agency were found the insurer could only bind the employer in relation to benefits under the WC Act. 92Newall C found the appellant had not made out that the respondent's insurer was the respondent's agent for the purposes of any s 242 application: at [54]. The Commissioner continued: [55] But even if it were said that as the employer was self-insured, one should make the assumption that the insurer was the employer's agent when it dealt with the applicant, two relevant matters are clear in my view. [56] The first is that the insurer did not hold itself out to be the employer's agent in relation to any application under s.242. Indeed, in addressing the applicant's intention to make such an application the insurer in its correspondence clearly characterises and regards the NSW Police Force as a third party for that purpose: see the email of 20 February 2013 to which I refer below. [57] That approach defeats, in my view, the proposition that the provisions of the WC Act should be relevantly regarded as a single transaction for the purpose of establishing that an estoppel lies here. The applicant and the insurer - even if the latter is the respondent's agent - did not so regard it. [58] That does not go to the proper construction of the WC Act, as that may be gauged from for example the matters set out in the decision in Cansino v South Western Sydney Area Health Service (1999) 130 IR 1. The point is that for an estoppel to be made out, the parties have to have regarded themselves as acting in relation to a single transaction. They did not. [59] Still in the context of agency and the context of the estoppel claimed, the second matter of importance arises from the correspondence between the applicant and the insurer. [60] It is quite clear that the applicant did not regard the insurer as the respondent or as standing in the shoes of the respondent. He clearly regarded the respondent as another entity to the insurer. 93The transaction relating to the cessation of workers compensation payments to the appellant was described by Newall C at [6]-[9]: [6] On 28 November 2012 the insurer wrote to the applicant prefacing its letter by saying 'as you are fit for pre-injury duties...' On 20 February 2013 the insurer wrote again to the applicant saying in terms 'As you are fit for pre-injury duties ...I will be preparing your file for closure.' These two occasions were said by counsel for the applicant to be the particular statements (although not the only evidence) of the joint assumption entered into by the parties. [7] The respondent's insurer ceased paying the applicant workers' compensation benefits under the WC Act on 3 December 2012. The insurer closed the applicant's workers' compensation claim file on or about 20 February 2013. [8] Both these actions were carried out by the insurer on the basis that the applicant had provided advice on 22 November 2013, supported by a medical certificate to this effect, that he was as a matter of fact fit for pre-injury duties. [9] The applicant made no challenge to the decision of the insurer to cease payments and close his file. 94It is first necessary to address this question of agency before dealing with the transaction issue. The employer of the appellant for the purposes of Pt 8 of the WC Act and the related statute, the Workplace Injury Management and Workers Compensation Act 1998 ("WIMWC Act") was the Crown: see s 3(5) of the WC Act and s 6(3) of the WIMWC Act. 95The NSW Self Insurance Corporation is a corporate entity established by the NSW Self Insurance Corporation Act 2004, as "a statutory body representing the Crown": s 4(2). Section 7, describing the "General Functions" of the NSW Self Insurance Corporation, provides: (1) The Self Insurance Corporation has the functions conferred or imposed on it by or under this or any other Act or law. (2) Without limiting subsection (1), the Self Insurance Corporation has the functions imposed on it under section 211B of the Workers Compensation Act 1987 and sections 26 and 27 of the Government Insurance Office (Privatisation) Act 1991. 96Section 8 of the NSW Self Insurance Corporation Act, entitled "Specific Functions in relation to Government Managed Fund Schemes", relevantly provides the NSW Self Insurance Corporation has the function of, inter alia, acting for the State, an authority of the State or an eligible State official in dealing with claims under a Government managed fund scheme: s 8(1)(d). 97Section 11 of the NSW Self Insurance Corporation Act creates a Fund "to be applied for the purpose of the NSW Self Insurance Corporation exercising its functions, including ... the payment of claims to which a Government managed fund scheme applies". A "Government managed fund scheme" is relevantly defined (in s 3) as follows: Government managed fund scheme" means an arrangement under which workers compensation, motor vehicle accident, public and other liabilities of the State, an authority of the State or an eligible State official: (a) are managed as a self insurance scheme (including the collection of contributions from the State, an authority of the State or an eligible State official towards the cost of claims), and (b) are paid, or otherwise settled, by the State or by the Self Insurance Corporation on behalf of the State, an authority of the State or an eligible State official... 98Section 211B of the WC Act, entitled "Government employers covered by Government managed fund scheme to be self-insurers", relevantly provides: (1) Any Government employer covered for the time being by the Government's managed fund scheme is taken to be a self-insurer for the purposes of this Act. A "self insurer" for the purposes of the WC Act is defined in s 3 so as to include "any Government employer covered for the time being by the Government's managed fund scheme (as provided by section 211B)". 99It may be accepted that for those who are employed by a "government employer" (which may be taken to include the Crown), such as police officers, their employer is also a "self insurer". 100The evidence shows that the communications with respect to weekly benefits, the appellant's obligations under the applicable injury management plans and the cessation of benefits on production of medical certificates indicating the appellant was fit for "Pre-Injury Duties", were with case managers employed by EM. EM was identified in the evidence as being "the agent for NSW Self Insurance Corporation". 101In summary then: (i) the Crown was the appellant's employer for the purposes of the WC Act and the WIMWC Act; (ii) the Crown was a self insurer; (iii) the NSW Self Insurance Corporation represented the Crown in dealing with claims under a Government managed fund scheme; (iv) a Government managed fund scheme is relevantly an arrangement under which workers compensation liabilities of the Crown are managed as a self insurance scheme and are paid, or otherwise settled, by the NSW Self Insurance Corporation on behalf of the Crown; and in its dealings with the appellant EM was acting as agent for the NSW Self Insurance Corporation. 102There was no evidence brought to our attention as to the extent to which EM had authority to act for the NSW Self Insurance Corporation as its agent. That is to say, there was no evidence that EM had any express or implied authority to expressly or by implication accept on behalf of the NSW Self Insurance Corporation an assumption that the appellant was fit for "Pre-Injury Duties" for the purpose of a transaction involving the immediate reinstatement of the appellant under s 242 of the WC Act, or for the purpose of a transaction involving receipt of an application by the appellant for reinstatement to employment in accordance with s 241 of the WC Act. We note in that respect it was not the appellant's assumption either that EM had authority to accept such an application. In November 2012, the appellant advised EM that he had sent his reinstatement application to the Commissioner of Police, not to EM. 103In the absence of each party, to the knowledge of the other, having accepted the relevant assumption as being true for the purposes of the transaction, no conventional estoppel arises. There was no evidence EM was in a position to accept on behalf of the employer the asserted common assumption as one governing the legal position of the parties for the purposes of transactions under ss 241 or 242 of the WC Act, and the appellant did not regard EM as the appropriate entity to receive an application for reinstatement. 104Furthermore, even if such authority did exist, there was no evidence that the NSW Self Insurance Corporation itself, acting on behalf of the Crown, had authority to accept on behalf of the employer the asserted common assumption as one governing the legal position of the parties for the purposes of transactions under ss 241 or 242 of the WC Act. It had authority to deal with claims under a Government managed scheme, which includes an arrangement under which workers compensation liabilities of the Crown are managed as a self insurance scheme and are paid, or otherwise settled. 105We do not consider that the language of ss 3 and 11 of the NSW Self Insurance Corporation Act extends the authority of the NSW Self Insurance Corporation to receive an application for reinstatement under s 241 of the WC Act or to determine whether the Crown, as the employer, has employment of the kind for which the worker applies for reinstatement. The Corporation had no standing to proceed on the basis of an assumption that the appellant was fit for "Pre-Injury Duties" for the purpose of s 241 of the WC Act. 106The NSW Self Insurance Corporation has relevant authority only to deal with claims under the WC Act and to pay or settle any liabilities that arise from such claims. It did not extend to sitting in the place of the employer in relation to matters that are essentially industrial in nature and which do not involve the payment or settlement of liabilities arising from a workers compensation claim for compensation or damages. That is language more relevant to matters arising within the jurisdiction of the Workers Compensation Commission of New South Wales, but not to what is essentially an industrial jurisdiction in Pt 8 of the WC Act concerned, inter alia, with contests over applications for reinstatement. 107In the absence of any evidence that would support a finding that EM and the NSW Self Insurance Corporation had authority beyond dealing with the appellant's workers compensation claim by ceasing payment based on medical opinion, we are unable to find that the employer accepted an assumption that the appellant was fit for "Pre-Injury Duties" for the purposes of a transaction involving the immediate reinstatement of the appellant under s 242 of the WC Act, or for the purpose of a transaction involving receipt of an application by the appellant for reinstatement to employment in accordance with s 241 of the WC Act. 108The foregoing findings are different to the basis upon which Newall C found that no estoppel by convention applied. Even if the Commission erred in his treatment of the doctrine, we have arrived at the same conclusion as the Commissioner. 109Even if it were found the relevant common assumption had been accepted by the parties as being true for the purposes of the transaction contended for by the appellant, we should indicate that in our discretion we would not have been prepared to have regard to the doctrine of estoppel by convention in this particular matter in any event. Furthermore, for the reasons that follow we consider that is the course the Commissioner should have taken at first instance. 110The appellant actively contended that the doctrine was a rule of evidence. Whether it is a rule of evidence or a substantive rule of law has been the subject of very little comment in Australian law. In The Bell Group Ltd (in Liq) v Westpac Banking Corporation (No 9) [2008] WASC 239; (2008) 225 FLR 1 at [3458] Owen J regarded the effect of conventional estoppel was to operate as a rule of evidence and preclude the estopped party from denying the truth of the assumed state of affairs. In Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 at 415, Brennan J said that the proposition that estoppel in pais is merely a rule of evidence and not a cause of action. 111In Labracon Pty Limited v Cuturich & Anor [2013] NSWSC 97, Lindsay J referred to Sir William Holdsworth's treatment of estoppel in A History of English Law (3rd ed, London, 1944), vol 9, at pp 144-146, where Sir William observed that the doctrine of estoppel was "simply a rule of evidence". However, Lindsay J referred at [150] to the "tendency... towards recognition of estoppel as a substantive law principle rather than a rule of evidence." His Honour did not reach any concluded view on the matter because it was unnecessary to do so. 112We have not been referred to nor have we been able to find binding Australian authority to the effect that estoppel by convention is a substantive rule of law. We have, therefore, proceeded on the basis that estoppel by convention is a rule of evidence. 113The Commission is not bound by rules of evidence and may inform itself on any matter in any way that it considers to be just: s 163(1)(b) of the IR Act. Section 163(1)(c) requires the Commission to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. The Commission is also required to take into account the public interest: s 146(2) of the IR Act. 114Where a reinstatement application under s 241 of the WC Act is rejected by the employer the worker is entitled to bring his or her application to the Commission under s 242. Under s 243(1) the Commission may order the employer to reinstate the worker in accordance with the terms of the order. However, the Commission may only do so if it is satisfied that the worker is fit for employment of the kind for which the worker has applied for reinstatement, or fit for any other kind of employment that is no less advantageous to the worker: s 243(2). Section 243(3) makes further provision for reinstatement but again subject to the worker's fitness. 115Where the employer does not accept the worker is fit, the onus falls on the Commission to determine the question of fitness. In the present case there was a serious disagreement of the appellant's fitness, not only in respect of his application to be reinstated to his former position, but to any police officer position within the NSW Police Force. 116The effect of estoppel by convention, if upheld, would have been to preclude the respondent from adducing evidence regarding the appellant's fitness for work as a police officer. It would have meant the Commission was left in the position of determining the question of fitness based solely on the evidence of the appellant, which would have been a wholly artificial exercise. 117In Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305 at [65], Bathurst CJ in considering s 243(2) of the WC Act, held that it was relevant to consider "whether or not the worker could safely perform that type of employment". The Police Regulation 2008 prescribes (in cl 10) that health assessments for police officers must be in accordance with the Government Sector Employment Act 2013. Under that Act a person must have a health clearance in order to be appointed. Under cl 15 of the Government Sector Employment Regulation 2014 a Public Service employee is not fit for duty "if the health of the employee may render the employee a risk to the health and safety of other Public Service employees or the general public." 118In his substantive decision, Newall C referred to Mr Robinson's explanation of his illness and the functions of a police officer he felt he could not perform: [133] He said, for example, 'I must guide junior staff and give the right advice I cannot trust myself to give my colleagues the right direction and advice and make split second decisions when the need arises, which often does due to my rank and position. I'm afraid and scared I'll make the wrong decision which may be life altering to me, a colleague or member of the public.' He further said 'I worry what I will do if I'm involved in any confrontation at the workplace and fear what I may do. This is a major concern. I do not want to put myself at risk nor anyone else I work with.' [134] He said 'Working desk duties continually reminds me of what I'd been through.' He said that hearing the radio and calls for help by police 'makes me very anxious and my heart race. I put myself and others at risk as I cannot respond due to the anxiety I feel at the sound of the radio.' He said 'If placed back into [my job] in any capacity would put others at risk.' 119There was significant evidence, of course, that Mr Robinson was no longer suffering any illness and that was the basis for his reinstatement application. The respondent's evidence was Mr Robinson had suffered a major depressive illness, but was in remission. However, the evidence was also that Mr Robinson's history suggested he had a vulnerability to psychiatric disorder and that as police duties were inherently stressful, he is more likely than not to experience a relapse if he returned to work as a police officer. 120If conventional estoppel had applied there would have been no opportunity for the Commission to receive the respondent's evidence and make a judgment about whether Mr Robinson was fit. That would have prevented any proper assessment about whether Mr Robinson's state of health presented any risk to himself, fellow officers and the public. Being rendered unable to do that would not be in the public interest and would not be consistent with the Commission's obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 121The respondent had contended in its notice of contention that, in not finding that the appellant had been estopped from denying the mutual assumption adopted by the parties that he was permanently unable to perform the duties of a police officer, the Commissioner had erred. For the same reasons we would not apply the estoppel by convention in the appellant's case we will not apply it in respect of the respondent's notice of contention.

Whether appellant was fit within meaning of Pt 8 of WC Act 122In relation to the substantive decision, the appellant grouped his grounds of appeal into three broad categories: a. The Commissioner failed to apply the correct "test" in determining whether an injured worker was "fit for [the] kind of employment" sought... b. The Commissioner erred by failing to resolve, or properly resolve a central conflict in the medical evidence... and c. The Commissioner erred in the conclusion that the Appellant was not fit for any kind of employment as a police officer....

Whether failure to apply correct test 123In relation to the first of these categories the appellant submitted the Commissioner asked the wrong question. Counsel submitted that by requiring the Commission to determine whether an injured worker was "fit", the question to be asked under s 243(2) and (3) of the WC Act is whether the Commission is satisfied, on the medical evidence, that the injured worker has the capacity to perform the relevant employment, having regard to the duties and nature of the work, and the environment in which it is performed? By adding to that question uncertain and undefined concepts of "going forward" and "over time", as the Commissioner did at [118] of the substantive decision, it was submitted the Commissioner asked himself the wrong question, and in so doing erred. 124Still with the first category, the appellant submitted the Commissioner correctly identified that in order to be fit for a kind of employment he need not show a return to his former position was risk free. However, it was submitted the Commissioner failed to apply this approach to the assessment of the medical evidence. 125The appellant acknowledged that the Commissioner gave the concept of "fitness" an ambulatory operation in that the Commissioner found that whilst the appellant was presently well and showing no symptoms or signs suggestive of psychiatric illness, he also found that Mr Robinson was not fit because it was "more likely than not that he will have a relapse into his medical condition...." 126The appellant submitted that even if the Commissioner was correct in giving the concept of fitness an ambulatory operation, accepting an injured worker is not fit for employment of the kind sought because it was likely, more probable than not, that over 10 to 25 years they will suffer a relapse, was to "erect the counsel of perfection the Commissioner held ought not be applied, effectively ignores the counsel that the Court should not attempt ... to anticipate unknowable future events, treats the question of fitness as though it were intended to provide the employee the subject ... with employment for life, and was an error." Counsel submitted: None of the evidence demonstrated the Appellant would likely relapse immediately upon a return to police work, regardless of which diagnosis the Commission accepted: any suggestion to the contrary would be at complete odds with the fact the Applicant served as a police officer for in excess of 18 years without showing symptoms, including as a general duties Sergeant in the Eastern Beaches LAC since June 2003. Indeed, after his initial diagnosis of PTSD in 2009 the Applicant was certified fit to return to full-duties, and performed full-duties, for some months (August 2009, then between February 2010 and July 2010), including the work described in... without becoming symptomatic. 127Section 243(2) of the WC Act requires the Commission to be satisfied the worker is fit for the kind of employment in respect of which the worker has applied for reinstatement (or fit for any other kind of employment that is no less advantageous to the worker). Section 243(3) empowers the Commission to reinstate the worker in any other kind of employment, but again subject to the Commission finding the worker is fit for that other kind of employment. 128As the appellant observed, the Commissioner recorded his acceptance of a series of propositions relevant to "the meaning of the term 'fit' ", that were not in contest in the proceedings, including: (a) the concept of being "fit" for work of the relevant kind "goes to the worker's capacity to perform employment of the relevant kind"... the relevant "kind" being "the employment to which the injured worker is seeking reinstatement as defined in Part 8"; (b) the assessment of whether a worker is "fit" is "to be made on medical evidence"...; (c) the concept of "fitness" is to be assessed "not ... against any abstract standard but in relation to the duties and nature of the work to be performed"...; (d) having the capacity to perform work of the relevant kind embraced "both the tasks and activities required of that kind of employment and the environment in which that employment is to be performed" (what is other contexts is known as the "inherent requirements" of the job...); and (e) in considering the question of fitness, the Commission is required to consider whether "that kind of employment could be performed safely"..., noting the parallels drawn by the Commissioner with what was then outlined in cl 13 of the Public Sector Employment and Management Regulations 2009 [since repealed and replace by the Government Sector Employment Regulation 2014], the relevant part of which appear to have been: For the purposes of this clause, a member of staff is not fit for work if the health of the member of staff: (a) may render the member of staff a danger to other members of staff or to the public, or (b) is likely to be seriously affected by the staff member remaining on duty or, if the member of staff is absent from duty, by the staff member resuming duty. 129Whilst the appellant accepted the foregoing propositions were unexceptionable, he submitted the Commissioner "introduced an uncertain and unconstrained temporal gloss on the question of capacity, that ignores the well settled counsel that the Court ought "not attempt ... to anticipate unknowable future events". That was a reference to what the Commissioner stated at [118]: [118] For want of any doubt, it is clear in my view that consideration of whether an officer is 'fit' within the meaning of part 8 of the WC Act necessarily requires consideration of the officer's fitness to undertake his duties going forward, that is, a consideration of the officer's fitness must necessarily include consideration of how he would be able to perform those duties as a whole and over time, beyond the circumstances of the day on which the application is made or heard, and indeed beyond the first day of his return to work. It necessarily includes an assessment of the impact of the work to be performed on the worker concerned, but also may involve an assessment of the safety of others if the worker is returned to duty. 130All that was required, according to the appellant, was for the Commission to be satisfied, on the medical evidence, that the injured worker had the capacity to perform the relevant employment, having regard to the duties and nature of the work, and the environment in which it was performed. 131It is a difficult concept to capture in words, but we think all that the Commissioner was attempting to state in [118] was that in determining fitness for the relevant kind of employment the Commission is entitled to consider whether in reinstating a worker it was effecting a "timely, safe and durable return to work..." for a worker following a workplace injury: see s41(1) of the WIMWC Act. 132If, for example, there is conflicting medical evidence that a return to the kind of employment the injured worker seeks will raise the real and foreseeable risk of exacerbating a physical injury and result in the worker having to again leave employment, or it is more likely than not there will be a relapse of a mental illness that may place fellow workers and the public in jeopardy, that is a serious consideration that must be taken into account by the tribunal. If there is medical evidence that such circumstances exist that is not an "unknowable future event". 133Whether the tribunal would exercise its discretion to refuse reinstatement in the abovementioned circumstances will depend on the tribunal's assessment of the medical evidence and the kind of employment to which the worker seeks reinstatement. That may involve a difficult exercise of judgment. 134The appellant was concerned that by using the phrases "going forward" and "over time" the Commissioner was adopting an approach that was open-ended; that if there was a risk of relapse in 10 to 25 years' time reinstatement should not be ordered. However, we do not think that was the Commissioner's approach. 135At [186] Newall C accepted Pt 8 of the WC Act did not require a return to employment pursuant to its provisions to be entirely risk-free because that would be a "counsel of perfection" and contrary to the beneficial purpose to which Part 8 of the WC Act was directed. At [187]-[189] the Commissioner acknowledged and accepted what was said in Blackadder v Ramsay Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 at [34], [35] and [78] to the effect the tribunal should "not attempt ... to anticipate unknowable future events". At [190] the Commissioner unequivocally agreed with the appellant's counsel that "the Commission does not need to, nor could it, anticipate every eventuality likely to arise in the foreseeable future, in making a finding that a worker is 'fit' for the relevant kind of employment". 136The approach the Commissioner took was to have regard to Dr Parmegiani's evidence that the appellant "is more likely than not to suffer a relapse" if returned to duty. Newall C said at [192]-[194] in relation to that evidence: [192] To have regard to that evidence is not 'anticipating every eventuality that might arise', nor is it 'attempting to anticipate future unknowable events'. Rather, it is having regard to an event that is, on medical evidence, more likely than not to occur if there is a return to duty. [193] 'More likely than not' means that on the balance of probabilities it will occur. That is the stark effect of the evidence. It is not necessary or appropriate to attempt to calculate the percentage chance of that occurring from studies to which the medical experts referred, as I was invited to do by the applicant. Dr Parmegiani's evidence was straightforward and unequivocal; it is more likely than not to occur. [194] That that evidence is to be taken into account is in my view the more so when it is the case that the effect of a relapse in a given moment in the context of policing duties could well be, as Mr Robinson has said, to put himself, his colleagues and the public at serious risk. 137It is true that no reliable timeframe was placed on the likelihood of a relapse, which we think would have been impossible given that it would depend on what might trigger the relapse. But the absence of a timeframe was not a proper basis upon which the Commissioner could ignore the medical evidence that a relapse was more likely than not to occur. The evidence of Dr Parmegiani was that the risk of relapse was "real and foreseeable." 138There was no error as to the test applied by Newall C under s 243 of the WC Act.

Whether failure to resolve the conflict in the medical evidence 139The second category of the appellant's appeal grounds dealt with the asserted failure to resolve the conflict in the medical evidence. In this regard, the appellant submitted the Commissioner failed to resolve the conflict in the evidence as to the proper diagnosis, as between Dr Zhang, Ms Sharman and every other practitioner who assessed the appellant in relation to the July 2010 illness (including Dr Bertucen, Dr Patwardhan, and Ms Jenny Wong, clinical psychologist) on the one hand, who all diagnosed the July 2010 incident as a "Adjustment Disorder" and Dr Parmegiani on the other, who diagnosed the July 2010 absence as the second of two bouts of depression arising from an underlying Major Depressive Disorder. 140Essentially, what the appellant contended regarding the medical evidence was that the Commissioner erred in accepting Dr Parmegiani's evidence that Mr Robinson was suffering from a Major Depressive Disorder in circumstances where the weight of the medical evidence was that the appellant was suffering from "Adjustment Disorder". The significance of this was that the nature of an Adjustment Disorder was markedly different, and less severe, than Major Depressive Disorder. An Adjustment Disorder was typified by the psychological symptoms having resolved once the person has adjusted to the relevant stressor or stressors being removed. The appellant drew attention to the fact that in his report Dr Parmegiani observed, "Adjustment Disorders resolve within six months after the stressor is removed". 141Counsel for Mr Robinson submitted: Evidence to the effect that an injured worker who was currently showing no signs or symptoms of psychological illness had a "significant" risk of relapse, said risk being otherwise not described or qualified as to time or trigger (beyond saying the individual had shown a vulnerability to stress) and being something less that a relapse being likely, could not, with respect, have lead (sic) the Commissioner to the view that the injured worker did not have the capacity to perform the work, having regard to the nature of the duties and the environment in which the work is to be performed, as required by s 243(2): absent something more, it would be to adopt a counsel to (sic) perfection the Commissioner quite correctly concluded ought not be applied. That error is all the more significant when it is appreciated that the Commissioner formed the view that Dr Parmegiani's evidence meant the Appellant was unfit to perform any police duties, including one of the alternative forms of employment sought under s 243(3). The Commissioner misunderstood the evidence insofar as it related to risk of relapse if the diagnosis of Adjustment Disorder was accepted. Respectfully, the Commissioner was required to resolve that fundamental issue [but failed to do so]. 142In summary, the appellant submitted that: (1)the weight of the medical evidence supported a diagnosis of Adjustment Disorder; (2)Dr Parmegiani was alone in diagnosing Major Depressive Disorder, which was not a "consistent or coherent diagnosis"; (3)Adjustment Disorder, even on Dr Parmegiani's evidence, was a less severe condition than Major Depressive Disorder notwithstanding both Major Depressive Disorder and Adjustment Disorder are labelled Axis 1 psychiatric disorders; (4)when Dr Parmegiani opined that the appellant would be more likely than not to suffer a relapse of his psychiatric disorder, it was on the basis of Dr Parmegiani's conclusion that the Appellant suffered a Major Depressive Disorder and by reference to operational general duties; (5)Dr Parmegiani did not say that it was more likely than not that Mr Robinson would suffer a relapse of his psychiatric disorder on the basis of a diagnosis of Adjustment Disorder. Dr Parmegiani merely said the risk of relapse was significant. There is a material difference between saying that a risk of relapse is "significant" and saying (as did the Commissioner at [200]) that a person would be "more likely than not to suffer a relapse". 143It is not entirely clear from the Commissioner's decision that he accepted the diagnosis of Dr Parmegiani of Major Depressive Disorder in preference to the alternative diagnosis (of Ms Sharman and Dr Zhang in particular) of Adjustment Disorder and based on that preference concluded that the appellant was more likely than not to suffer a relapse. 144It appears to us that even if the Commissioner wrongly accepted Dr Parmegiani's diagnosis of Major Depressive Disorder he also accepted Dr Parmegiani's evidence that regardless of the diagnostic label - whether it be Major Depressive Disorder or Adjustment Disorder (both being Axis 1 psychiatric disorders) - "in light of the inherently stressful nature of police work and previous occurrences of psychological disorder, Mr Robinson would... be more likely than not to have a relapse of his psychiatric disorder": at [200]. 145The question that then arises is whether the Commissioner was correct in concluding that regardless of the label the appellant would be more likely than not to have a relapse, or was the evidence that if Mr Robinson was suffering from Adjustment Disorder, the risk of relapse was "significant" as opposed to "more likely than not"? 146The question arises because it is quite clear that in Dr Parmegiani's report on his interview with Mr Robinson in August 2013 he concluded: (i) that Mr Robinson had been suffering from Major Depressive Disorder that was in remission; (ii) his history suggested a vulnerability to psychiatric disorder; (iii) police duties are inherently stressful and Mr Robinson is more likely than not to experience a relapse of his Major Depressive Disorder if he returns to work as a police officer; (iv) whilst the appellant was currently well, exposure to the stresses associated with police work was likely to precipitate a relapse of his Major Depressive Disorder and; (v) the risk of that occurring was real and foreseeable. 147It may be seen from the report that Dr Parmegiani was only concerned with his diagnosis of Major Depressive Disorder and the potential of relapse. It is necessary to then go to Dr Parmegiani's oral evidence. In examination in chief, Dr Parmegiani was asked about the likelihood of relapse: Q....If a person is in fact suffering from an adjustment disorder with mixed anxiety and depressed mood, are you able to comment on their likelihood of relapse having suffered from that type of problem? A. It is still a serious psychiatric disorder which produces disability, and Mr Robinson's case has produced disability over a length of time. So it shows a psychological vulnerability, regardless of the diagnostic label, whether - some call it mild depressive disorder, a mild adjustment disorder, or PTSD for that matter. It is a psychiatric disorder which highlights a vulnerability to stress. 148Dr Parmegiani was then asked whether he had read the reports of Ms Sharman and Dr Zhang (whose diagnoses were Adjustment Disorder) and whether he had regard to their views. He answered, "Yes". Dr Parmegiani was then asked: Having regard to your examination of Mr Robinson and the other information that you were provided with him (sic), taking him as an individual in your professional view is he likely to relapse into a psychiatric condition if exposed to the stresses of the work as a sergeant of police. 149An objection was taken and dealt with. Senior counsel for the respondent then asked two further questions: Q. If I could then put the question again to you, Dr Parmegiani, having regard to your assessment of Mr Robinson, and in light of all the other information you were provided in order to assist you with that assessment, including the reports from the other practitioners that we've mentioned, are you able to comment whether he as an individual is likely to relapse into psychiatric illness if he is again exposed to the duties of a sergeant general duties? A. Yes. Q. What's your opinion as to the potential that he would relapse? A. Well it's clearly a very stressful job, and in view of his past history of two breakdowns I think it'd be more likely than not to have a relapse. 150In re-examination, Dr Parmegiani was asked a further series of questions: Q. Doctor, if Ms Sharman in her treatment as you know does not diagnose a major depressive disorder as being Mr Robinson's proper diagnosis, if her diagnosis is correct, that is anxiety (sic) adjustment disorder with anxiety and depressive mood? A. Yes. Q. Is Mr Robinson on that basis vulnerable to relapse if he returns to duties as a Sergeant General Duties Police Officer? ...[objection; objection overruled] A. Well the answer is yes, he's demonstrated a vulnerability to stress, whether the label is adjustment disorder with mixed anxiety and depressed mood, moderate depression or post traumatic stress disorder, is a secondary consideration. What's the most important thing is what happens to his level of function when he's under stress, whether it's a conflict with a supervisor or something else the fact is that one has to look at the level of function, whether he's able to work and if not for how long. Now if someone is exposed to a stressful workplace conflict he's unable to return to work for weeks or months to me that demonstrates over sensitivity to stress or inability to cope with stresses as well as they should. ... Q. What I'm asking you now is, are you able either from your understanding of research or from your experience, able to quantify in any way what a person - what Mr Robinson given his history, what his potential or likelihood of relapse is? A. There is research that indicates that if someone has had a psychiatric diagnosis, an Axis 1 psychiatric diagnosis and that includes major depressive disorder, post traumatic disorder and adjustment disorders, they're twice as likely to develop post traumatic stress disorder with stress. Adjustment disorders, again I think one goes on history in an individual case. I think it's significant the risk of relapse. Q. When you say, you mean Mr Robinson's case is significant? A. Yes. Q. You've just mentioned Axis 1? A. Yes. Q. Could you just explain Axis 1 to the Commissioner? A. Axis 1 is a label (sic) psychiatric disorders. Axis 2 is personality characteristics or disorders. So there (sic) part of your makeup so to speak. Axis 1 is more the illness model of psychiatric diagnosis. In other words, depression, schizophrenia, bipolar disorder, they're all Axis 1. Axis 2 is personality axis for his conditions. Q. Can you tell us what an adjustment disorder of the type found by Ms Sharman rates? A. It's an Axis 1 disorder. Q. And PTSD? A. Axis 1. 151We do not get the impression from Dr Parmegiani's oral evidence that in respect of Adjustment Disorder, he was expressing a different view about the likelihood of relapse to that he expressed in relation to Major Depressive Disorder. Dr Parmegiani regarded Adjustment Disorder as being in the same class of disorders as Major Depressive Disorder (ie, Axis 1), both being serious psychiatric disorders. He considered labels to be of secondary importance. His view was that regardless of labels Mr Robinson was vulnerable to stress; he had suffered two breakdowns and the job he was seeking to return to was very stressful. When one reads the whole of Dr Parmegiani's evidence it could not be concluded that because he referred to the risk of relapse in the context of Adjustment Disorder as being "significant", that he was distinguishing such a risk from the risk of being more likely than not. 152Dr Parmegiani agreed that Adjustment Disorder was "assumed" to be a less severe disorder than Major Depressive Disorder. However, he also stated that regardless of whether one labels it Major Depressive Disorder or Adjustment Disorder it was a serious psychiatric disorder that produced a disability in Mr Robinson over time that left him vulnerable to stress. 153 In his report Dr Parmegiani observed, "Adjustment Disorders resolve within six months after the stressor is removed". Of course, if the stressor returns there is the prospect of the disorder returning. Dr Parmegiani considered that if Mr Robinson was returned to his position it was more likely than not he would suffer a relapse. 154In relation to other relevant evidence regarding relapse, Newall C observed at [158]-[161]: [158] Dr Zhang's expert report did not expressly address the risk of relapse or recurrence of Mr Robinson's psychological illness if he returned to his former duties. His report did, as I note above, recommend that Mr Robinson return to work on a gradual basis, leading to the inference that he regarded Mr Robinson as less than fully fit to return immediately to full-time operational police duties. [159] In his oral evidence, Dr Zhang expressed the view that Mr Robinson had a higher risk of relapse of PTSD compared to a person that has not suffered PTSD in the same circumstances. He gave the opinion that a return to administrative work would be "less likely to cause post traumatic disorder symptoms than the confrontation of frontline work": tpt 30 Sep p 43 ll.40-43. [160] Dr Zhang stated that he could not guarantee that the same kind of triggers identified in Mr Robinson's letter to Ms Angus on 3 March 2011 could not similarly impact on his mental state in the future: tpt 30 Sep p 35 ll.16-50, p 36 ll 32-37. [161] Dr Zhang agreed that the fact that Mr Robinson had suffered from PTSD in November 2008 was significant in his relapse in July 2010: tpt 30 Sep p 33 ll.20-23. That is consistent with the evidence that a previous sufferer from the illness has a greater chance of its recurrence. 155In relation to Ms Sharman's evidence concerning relapse, Newall C stated at [165]-[166]: [165] In cross-examination, Ms Sharman agreed that she could neither predict the risk of relapse nor guarantee that Mr Robinson would not suffer a relapse: tpt 1 Oct p 78. She did say, when asked about the evidence that a person who has suffered PTSD is more likely to experience it again than someone who has not, that in her professional opinion Mr Robinson represented an exception to the rule. That appeared to be based on the proposition that he had been through therapy and had developed skills to identify potential stressors and address them to avoid relapse. [166] Ms Sharman further said, however, that she could not exclude the possibility that the trigger for Mr Robinson's PTSD, as she characterised it, represented the culmination of several unresolved stresses of his policing career rather than arising out of specific incidents; in other words, as I understood it, that it may be that neither she nor Mr Robinson had identified the stressors that triggered or might trigger again his illness. 156The evidence of Dr Zhang and Ms Sharman does not undermine Dr Parmegiani's evidence regarding the likelihood of relapse. Indeed, Dr Zhang's evidence lends some slight weight to it. 157As we have already adverted to, Newall C found at [200]: [200] Dr Parmegiani gave the opinion that whether a person has suffered from an adjustment disorder with mixed anxiety and depressed mood or PTSD, rather than a major depressive disorder as he diagnosed it, it is the case that each of these disorders are serious psychiatric disorders producing disability and creating psychiatric vulnerability to stress: tpt, 2 Oct p 39, and particularly p.60-61. Regardless of the diagnostic label, he considered that, in light of the inherently stressful nature of police work and previous occurrences of psychological disorder, Mr Robinson would, as I have set out above, be more likely than not to have a relapse of his psychiatric disorder. 158There is no basis to find on appeal that there were incontrovertible facts or uncontested testimony that demonstrated that the Commissioner's conclusions were erroneous, or that the decision was glaringly improbable or contrary to compelling inferences in the case: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 128; Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 538. We find no error. 159Having found Newall C was entitled under s 243 of the WC Act to have regard to whether there was a risk of a relapse, that a relapse of the psychiatric disorder would constitute a serious risk to the appellant, his colleagues and the public and that the risk was more likely than not to arise, we find the Commissioner's conclusion at [201] was open to him, namely that: [201]...Mr Robinson is not fit because, on the medical evidence, it is inherent in any return to work as a police officer that it is more likely than not that he will have a relapse into his medical condition, with the consequences to himself and others....

Whether appellant fit for alternative positions 160The appellant's third category of appeal grounds was that the Commissioner erred in concluding that the appellant was not fit for any kind of employment as a police officer. 161Section 243(2) of the WC Act provides that the Commission may reinstate the injured worker to the position sought by the worker in the reinstatement application or to any other kind of employment that is no less advantageous to the worker subject always to the Commission being satisfied the worker is fit. Section 243(3) provides that if the employer does not have employment of that kind available the Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being: (a) employment of a kind that is available but that is less advantageous to the worker, or (b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation). 162In the first instance proceedings, the appellant submitted in the alternative that the Commissioner should consider whether he was fit for reinstatement in another role that was essentially administrative in nature. These roles included: Crime Coordinator; Exhibits Supervisor; Education and Development Officer; Brief Handling Manager; Intelligence Supervisor; Traffic Supervisor; and Licensing Supervisor. This alternative appears to have been put based on the provision in s 243(2) of the WC Act that empowers the Commission to order reinstatement to any other kind of employment that is no less advantageous to the worker subject to the Commission being satisfied the worker is fit or based on s 243(3)(b). 163The evidence was that effectively any position as a police sergeant, or a police officer, necessarily had operational components, so that the occupants of those positions would necessarily be exposed to stressful situations. Further, that even if on its face a role was administrative in nature it still required that if its occupant was a sworn police officer he or she would be deployed on general duties from time to time, the precise degree of that requirement differing between commands. 164The Commissioner accepted this evidence. Newall C stated "even in the sort of alternative positions posited by Mr Robinson he would necessarily be exposed to the stressors which are, on the medical evidence, more likely than not to lead to recurrence of his psychological condition". As the Commissioner observed, on his understanding of Dr Parmegiani's evidence, even a purely administrative role would "not remove the risk to which Dr Parmegiani refers" (at [206]). 165The appellant submitted that Dr Parmegiani's evidence as to a return to duty being more likely than not to lead to recurrence was based on his diagnosis of the appellant having suffered a Major Depressive Disorder and the appellant being returned to operational general duties policing. According to the appellant this had nothing to do with him being returned to a non-operational police position. The appellant referred to Dr Parmegiani's evidence that a return to a non-operational role would constitute "less of a risk". It was submitted the Commissioner's finding that, returning to a non-operational role would not remove the risk, was a counsel of perfection that ought not be applied. 166The evidence given by Dr Parmegiani about some role other than that of an operational general duties officer was as follows: Q. You have given some evidence earlier this morning or this afternoon, about the likelihood of relapse in the event that my client was returned to work as a police officer? A. Yes. Q. You described in your evidence earlier today and in that connection you were talking about a general duties operational police officer? A. Yes, yes. Q. If the applicant was returned to duty as a Sergeant of Police in a non operational role in a job that is essentially administrative in character-- A. Yes. Q. --would your position be any different? A. Well it would be less of a risk. The evidence of Dr Zhang was to the same effect. 167Counsel for the appellant submitted: Evidence to the effect that it was possible, the natural meaning of less than likely, that an injured worker who was currently showing no signs or symptoms of psychological illness may relapse, said risk being otherwise not described or qualified as to time or trigger (beyond saying the individual had shown a vulnerability to stress), could not, with respect, have lead (sic) the Commissioner to the view that the injured worker did not have the capacity to perform the work, having regard to the nature of the duties and the environment in which the work is to be performed, as required by s 243(2): again, absent something more, it would be to adopt a counsel to (sic) perfection the Commissioner quite correctly concluded ought not be applied. 168The difficulty with the appellant's position is the Commissioner accepted that there were no "non-operational" roles for a person who is a sworn police officer. As Newall C stated at [204], "effectively any position as a police sergeant or indeed a police officer, necessarily has operational components, so that the occupants of those positions are necessarily exposed to stressful situations." Moreover, the provisions of s 11(1) and (2) of the Police Act state: (1) The Commissioner is required to designate the positions in the NSW Police Force which are to be held by police officers. (2) A position in the NSW Police Force is to be so designated if the Commissioner is satisfied that the holder will be required to carry out, or will be concerned in, operational police duties or that it is otherwise appropriate to do so. 169It was open to the Commissioner to accept the evidence that effectively any position as a police sergeant or a police officer necessarily has operational components. Dr Parmegiani was not asked his view about the likelihood of relapse if the appellant was reinstated to a position as sergeant of police that was administrative in nature, but where he would be deployed on operational duties from time to time. Given that is so, the appellant cannot rely on the evidence of Dr Parmegiani that a non-operational role carried less risk of relapse in order to support reinstatement as a sergeant of police in an administrative role. 170There are purely administrative positions in the NSW Police Force: see Pt 6A of the Police Act. These positions are separate and distinct from those of police officer positions. However, we do not understand the appellant to have contended before the Commissioner that he should consider reinstating the appellant to a purely administrative position that was not also a designated police officer position. Presumably, that could have been sought under s 243(3) of the WC Act. The Commissioner was instead asked to consider whether the appellant was fit for a police officer position that was of an essentially administrative character. 171There was no error by the Commissioner in relation to his decision at [216] that "it is not possible to find that 'employment of any other kind for which the worker is fit', the relevant provision of s 243(3), is available or could be made available by the respondent."

Inconsistency with Industrial Relations Act 172Given our conclusions in this matter it is unnecessary to consider that aspect of the respondent's notice of contention that the Commissioner was not empowered to make a reinstatement order under Pt 8 of the WC Act because it would be inconsistent with functions under the Police Act with respect to police officers hurt on duty for the purposes of s 405(1)(b) of the IR Act.

Orders 173The Commission makes the following orders: (1)Leave to appeal is granted. (2)The appeal in relation to Commissioner Newall's interlocutory decision given on 27 September 2013 and the appeal in relation to the Commissioner's substantive decision given on 5 December 2013 in Matter No IRC 304 2013 are dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 July 2014