The applicant, whose full name is Santina Josephine Russo, was employed as a full-time General Administrative Support Officer ("GASO") by the respondent, the Commissioner of Police, in the Burwood Police Area Command ("Burwood PAC"). By letter dated 3 August 2021 from Superintendent Andrew Graham, A/Commander, Burwood PAC, the applicant was advised that her file had been "referred to the Transition Team for consideration of retirement on medical grounds under Section 94B of the Police Act 1990". Section 94B of the Police Act 1990 ("Police Act") is in the following terms:
94B Retirement on medical grounds
The Commissioner may retire a member of the NSW Police Force if -
(a) the person is found on medical grounds to be unfit to perform or incapable of discharging the duties of the person's position, and
(b) the person'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 person, or from causes within the person's control.
On 9 August 2021, the applicant (in the name, Josephine Russo) filed in the Office of the Industrial Registrar an Application for Relief in relation to Unfair Dismissal citing the letter of 3 August 2021 as a threatened dismissal ("Application"). The Application contained the following:
Reasons for Application
1. Ms Russo has a medical restriction preventing her from working at Burwood PAC. This is based on her having been bullied there.
2. She was referred for redeployment last year. However, the manager at Burwood sabotaged her chances of redeployment by falsely advising a hiring manager that she was subject to performance management. Following this, the process for her deployment was halted in September 2020. She has been on leave without pay since January 2021.
3. Police is now seeking to avoid its responsibility for bullying by managers at Burwood by medically discharging Ms Russo.
4. Police have not properly carried out its responsibility to redeploy Ms Russo and as for her to be medically discharged would be harsh, unreasonable and unjust.
Background
The applicant commenced work with the New South Wales Police Force ("NSWPF") in February 1988 as a civilian employee. Her first role was as a Parking Officer in Queanbeyan. She then moved to Dee Why, also as a Parking Officer. The applicant later became a General Support Officer ("GSO") in around 1990.
In June 2008, the applicant took a voluntary redundancy. She recommenced employment with the NSWPF on 29 March 2010 and in August 2011 commenced employment as a GASO 1/2 with Burwood PAC.
Burwood PAC has an allocation for 12 GASOs. Each position is given a SAP number and then each employee is allocated against that SAP number. The employee then holds, or owns, that position.
In her role as a GASO with Burwood PAC, the applicant's duties included providing administrative support, working on the counter and court process. With the court process, the applicant needed to prepare files for court and liaise with prosecutors. She also received briefs and court papers, sorted mail, advised police of hearings, monitored court update matters and performed various other administrative and support functions.
On 28 March 2019, the applicant went off work sick. On 1 April 2019, the applicant made a complaint to the Duty Officer, Sergeant Scifleet, that she was being bullied by other administrative staff. She submitted a workers compensation claim for psychological injury which was ultimately declined by the insurer, EML, on the ground that her "psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by your employer with respect to performance appraisal and discipline under section 11A of the Workers Compensation Act 1978".
The applicant was certified by her treating General Practitioner, Dr Amir Esmaeili as unfit to perform duties at Burwood PAC.
On 19 June 2019, the applicant returned to work under a graded Recover at Work Plan at Campsie PAC. In July 2019, her placement was moved to Cumberland PAC. The applicant was not placed in a vacant or SAP position while at Cumberland PAC but retained her SAP position at Burwood PAC.
In March 2020, a vacant SAP position for a GASO 1/2 became available in Fairfield PAC. The applicant was offered this position on a permanent basis but declined the position because she believed it was too far for her to travel from her home in Collaroy.
During a case conference on 17 June 2020 between Dr Esmaeili and Cristina Brillo, Injury Management Advisor with the NSWPF, Dr Esmaeili advised Ms Brillo that, in his medical opinion, the applicant was suffering from PTSD. Dr Esmaeili also advised Ms Brillo that the maximum time that the applicant can travel to and from work each day was four hours, which she was currently doing.
The applicant was referred to the NSWPF's Deployment Unit on 9 July 2020 but on 1 September 2020 she received an email from Inspector Allyson Fenwick, Manager, Deployment and Transition, Workforce Safety Command, which contained the following:
Thanks for talking with me today.
As explained, Deployment will continue to face roadblocks regarding your suitability until the performance issues are resolved. We have referred you back to injury management and your command to identify next steps.
We have closed the deployment process at our end for now.
On 2 September 2020, the applicant received an email from Detective Superintendent Paul Devaney, Commander, Burwood PAC, which contained the following:
I refer to your current substantive position as General Administrative Support Officer (GASO) with Burwood Police Area Command.
I understand that you alleged to have sustained a work-related injury on 28 March 2019, with your claim declined on 7 August 2019 by EML. Notwithstanding this, since your original injury date your medical practitioner has maintained a permanent restriction that you not work at Burwood PAC.
Given the time that has elapsed, the absence of improvement in your condition and, from what I am reasonably informed from your Injury Management Advisor following a June 2020 case conference, no proactive steps taken by you to address your psychological health notwithstanding medical recommendations to that effect, it is now time to seek formal clarification as to your current medical status and prognosis.
You would by now have been informed that the deployment process has ceased and you have been returned to Burwood PAC for ongoing management of your circumstances. Accordingly, in light of current medical information available, effective COB 2 September 2020 immediately you will cease performing duties at Cumberland PAC (or any other Command) pending medical clarification. Given your current restriction not to work at Burwood PAC, you will be considered on sick leave utilising your existing accruals (such that, should no paid sick leave be available, you will be considered on unpaid sick leave).
Detective Superintendent Devaney then requested that the applicant confirm in writing her consent to Ms Brillo seeking responses to questions provided to Dr Esmaeili, in the absence of which the Command would need to consider whether referral for consideration for medical retirement under s 94B of the Police Act was appropriate. The applicant was also advised that, should she be medically cleared to return to Burwood PAC, she would be placed on a formal performance management plan on her return.
The applicant remained on leave without pay between September 2020 and August 2021.
On 2 June 2021, Dr Esmaeili, issued a medical certificate which contained the following:
This is to certify that Ms Santina Russo is not suitable to work in her pre injury work place (Burwood). She will be at high risk of relapse of her anxiety. She is fit to work with full duties in other workplaces.
During this period there was further correspondence between the applicant's representative, Andrew Wright, Industrial Officer, Public Service Association of NSW ("PSA"), and various managers of the NSWPF but the applicant's circumstances remained unresolved.
Following receipt by the applicant of the letter of 3 August 2021, referred to at [1] above, and the filing of the Application on 9 August 2021, the respondent filed a Notice of Motion on 18 August 2021 seeking an order that the Application be dismissed, or otherwise set aside, on the ground that, as at the date the Notice of Motion was filed, there had been no dismissal or threatened dismissal of the applicant by the respondent.
A conciliation conference was convened by me on 24 August 2021. Following that unsuccessful conciliation conference, Mr Wright, on 31 August 2021, forwarded correspondence to Superintendent David Driver, Commander, Workforce Safety Command, in which it was alleged that the applicant had been subjected to bullying by her managers at Burwood PAC, in particular, Maria Betsas, Police Area Manager, at the Command, who, it was alleged by the applicant, had effectively undermined her workers compensation claim and redeployment prospects by raising "minor disciplinary and performance issues" involving the applicant with the workers compensation insurer, EML, and the Deployment Unit. In this correspondence, Mr Wright also referred to "[n]it-picking about court and administrative work" by Burwood management.
The applicant's situation remained unresolved. On 9 September 2021, the applicant received a phone call advising her that a decision had been made that she would be medically retired with her last day of service being 30 September 2021. This was confirmed in an email sent on 1 October 2021 from Inspector Fenwick to Mr Wright.
On 11 October 2021, I made directions for the filing and service of witness statements and outlines of submissions and listed the matter for hearing on 17-18 February 2022. These directions were subsequently varied at the request of Mr Wright.
On the morning of 17 February 2022, the Commission received email correspondence from Mr Wright which advised that the applicant was unable to face examination and cross-examination and foreshadowed an adjournment application which was subsequently granted and the matter was stood over to 25 February 2022 for directions.
At the directions hearing on 25 February 2022, the Commission was advised by the solicitor appearing for the respondent, Emily Baxter of Kingston Reid, that the respondent's Notice of Motion "has now fallen away… A decision has now been made…". The Application was listed for hearing before me on 24 June 2022.
Case for the applicant
In her witness statement filed on 26 November 2021, the applicant traced her employment history with the NSWPF and claimed that in 2018 and 2019 she was singled out for criticism about her work performance. She claimed that she had been subjected to bullying by various managers soon after she started working at Burwood PAC. The applicant referred to a number of unsuccessful attempts she had made to apply for GASO positions away from Burwood PAC.
The applicant detailed a number of "performance issues" which had been raised with her by her managers, but with whom she disagreed. She recounted how she became ill on 27 March 2019 and went off work sick the following day. She referred to her unsuccessful workers compensation application and stated that she was preparing an appeal against the decision to decline her claim.
Reference was made by the applicant to her experience with the Deployment Unit, being removed from the program because of "unresolved performance issues" and being "returned to the Command, who sent me home for 6 months on leave without pay". The applicant stated:
49. I have never been subject to formal performance management. The only possible source of the information about performance issues on which to base the decision to decline further assistance with deployment was Burwood management.
The remainder of the applicant's witness statement canvassed the matters which are referred to at [12]-[19] above.
The applicant also relied on a witness statement by Glenn Duncan, PSA Organiser, which was admitted into evidence without objection in which Mr Duncan identified Police Area Commands that were within 1.5 hours and 5 minutes over 1.5 hours travel time from the applicant's address in Collaroy.
In a written outline of submissions prepared by Mr Wright, reference was made to the applicant's workers compensation claim which, it was stated, was declined "on the basis of a statement by Burwood management to the insurer which was never put to Ms Russo". It was also stated that the applicant's workers compensation claim raised "issues which amount to bullying by Burwood management" which issues were then listed.
The outline of submissions then contained the following:
7. Ms Russo has never been subject to performance management. The decision to decline further assistance with deployment for performance issues was almost certainly based on "information" deriving from Ms Betsas.
8. So Ms Russo was faced with the following situation:
- She is bullied by Ms Betsas and other managers at Burwood and cannot work at Burwood.
- Ms Betsas raises minor disciplinary and performance issues with the insurer with the result that Ms Russo is declined for workers compensation.
- Ms Betsas tells the Deployment Unit that there are serious performance issues, with the result that Ms Russo is no longer provided with assistance with deployment.
…
11. Under s81D of the Police Act 1990, the Commissioner of Police can assign officers to a different role. The Police Force should have assigned Ms Russo to another GASO role, as she was fit to perform her full duties anywhere but Burwood. Instead, they relied on their redeployment process which only works when the receiving command wants to accept the officer subject to redeployment. At the first sign of the inevitable difficulties, she was removed from deployment and sent home on leave without pay for a period of months. Failure to do so when they could have done so makes the decision to medically discharge Ms Russo unfair.
…
13. The Police Force have medically discharged Ms Russo, even though she is fit and capable of performing any GASO role at a Command within reasonable commuting distance from her home. Regardless of the insurer's decision, the medical evidence points to the management culture at Burwood having been the cause of Ms Russo suffering PTSD. No attempt has been made by the Police Force to redeploy Ms Russo outside the Region in, for example, the Central Metropolitan Region.
14, The Police Force has medically discharged Ms Russo without delivering a notice in writing to her, either by email or letter. This is a breach of ss97(1)(f) and ss97(2) of the Industrial Relations Act, which requires notice of a decision to dismiss and employee to be given in writing.
Case for the respondent
The respondent relied on an affidavit sworn by Ms Betsas and filed on 7 February 2022. Ms Betsas had been the applicant's manager at Burwood PAC since late 2017. In her affidavit, Ms Betsas referred to the "numerous performance and conduct issues" that were raised with the applicant. Annexed to the affidavit was a document described as "the more recent part of a running file note which includes comments of performance and conduct issues" involving the applicant. The document contained 68 entries by a number of managers dating back to 21 April 2015. Below is a sample of those entries:
Tab 170 27.10.2016 Email from Executive Officer Tuza to GASO Russo regarding formal conversation which was held on 17.10.2016 regarding complaints about her performance and conduct. Attached is a return receipt of GASO Russo opening the email.
Tab 174 19.11.2016 Complaint from GASO Nicole Kelleher regarding performance and sending inappropriate phone calls to court process.
Tab 191 15.08.2018 Direction in writing from PAM Betsas to GASO Russo regarding inappropriate conversations in the workplace.
Tab 196 16.10.2018 Failed Direction in writing from PAM Betsas to GASO Russo regarding inappropriate conversations in the workplace and gossiping. With response from GASO Russo.
Tab 203 08.01.2019 File note by A/PAM Tuza regarding formal conversation with GASO Russo about her sick leave and inappropriate conversations in the workplace.
Tab 204 09.01.2019 Email Direction from A/PAM Tuza to GASO Russo to cease gossiping within the workplace.
Tab 217 11.04.2019 Email from Executive Officer Watson to PAM Betsas regarding formal conversation held with GASO regarding sick leave and placing her on MCB and workplace gossiping.
Also annexed to Ms Betsas' affidavit were the applicant's performance appraisals from September 2018 and March 2019. The 2019 appraisal contained the following:
10 01 SUPERVISORS FINAL COMMENTS
H2Note created by Maria Betsas (N9534154) on 28.03.2019 at 14:52:12
Josie, you have not completed your CMS to a satisfactory level. You were provided with Objectives that you were to address, this has not been done. Several meetings and discussion have been held between yourself and I in regard to your performance as a GASO. I expect an improvement on your CMS and performance in the next review. I will be sending you Objectives that you are to respond to appropriately.
10 05 EMPLOYEE FINAL ACKNOWLEDGEMENT
H2Note created by Josephine Tina Russo (N9042217) on 16.07.2019 at 09:12:26
A formal CMS meeting was not held as I was off sick. I believed that I completed the objectives assigned to my role. The next CMS will be able to seek clarification on the objectives.
Ms Betsas referred to complaints she had received from prosecutors about the applicant's performance when performing court process duties and the applicant's responses when these matters were raised with her which Ms Betsas considered to be untruthful and a failure by the applicant to accept responsibility.
Ms Betsas also gave evidence about the extensive training that the applicant had received from different staff members.
Ms Betsas particularised difficulties that Executive Officer Bronwyn Watson (previously Bronwyn Tuza) had experienced in managing the applicant when Ms Betsas went on leave in late 2018.
According to Ms Betsas, she met with the applicant on 27 March 2019 in relation to the applicant's poor performance conducting court process duties. Ms Betsas directed the applicant to work in administrative duties for the remainder of the week. However, on the following day, 28 March 2019, when the applicant attended for work, she attended the court process office despite the direction she had been given the previous day. Ms Betsas confronted the applicant about this. Later that day, the applicant went home sick and after that she did not return to work at Burwood PAC again.
Ms Betsas then dealt with the ultimately unsuccessful attempts that were made to return the applicant to work and responded to certain parts of the applicant's witness statement, including her claim that she had never been subject to formal performance management. Mr Betsas stated:
49. …while Ms Russo had not been placed on a formal performance improvement plan… I had been managing Ms Russo's performance for an extended period of time, had raised issues of her poor performance and conduct with her on numerous occasions, and sought to work with her to improve her performance.
The respondent also relied on an affidavit sworn by Superintendent Driver sworn on 4 February 2022. In his affidavit, Superintendent Driver outlined his role as Commander, Workforce Safety Command, regarding the medical retirement of members of the NSWPF pursuant to s 94B of the Police Act.
Superintendent Driver stated that, having reviewed the file relating to the applicant, including the correspondence from Mr Wright of 31 August 2021, he was satisfied that the elements of s 94B of the Police Act were met. He considered that the medical information on the file, including that provided by the applicant's GP, Dr Esmaeili, established that the applicant was incapable of discharging the duties of her position of GASO 1/2 at Burwood PAC and that her unfitness appeared to be permanent in nature. Superintendent Driver also considered the fact that the applicant had not performed her role of GASO 1/2 at Burwood PAC for approximately two and a half years at the time he made the decision to medically retire the applicant.
Superintendent Driver also stated that he was satisfied that there had been sufficient attempts made to redeploy the applicant to another position.
In an outline of submissions filed on 9 February 2022 on behalf of the respondent, the evidence contained in the affidavits of Ms Betsas and Superintendent Driver was summarised.
The decision of Chief Commissioner Constant in Clarke v Health Secretary (Justice Health and Forensic Mental Health Services) [2021] NSWIRComm 1022 was cited in support of the propositions that a long term medical illness or injury that prevents an employee from performing the inherent duties of the position for which he or she is employed constitutes a valid reason for termination (Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [44]), however, the failure by an employer to take reasonable steps to accommodate the employee's limitations may render a termination harsh, unreasonable or unjust (Riley v WorkCover Authority of New South Wales (2006) 151 IR 396 at [80]).
The respondent's outline of submissions contained the following (footnotes omitted):
4. Harsh, Unreasonable or Unjust
4.1 To be entitled to any remedy, the Applicant bears the onus of establishing that the dismissal was harsh, unreasonable or unjust.
4.2 The Respondent submits that the medical retirement of the Applicant was not:
(a) unjust because the Applicant was unfit or incapable of discharging the duties of her position. She was afforded procedural fairness at all times.
(b) unreasonable because the Applicant had been unable to perform her substantive position since 28 March 2019. The Applicant's medical retirement was consistent with the s 94B of the Police Act and the Respondent's procedures and policies.
(c) harsh because the Applicant's incapacity was of a permanent nature. Further, in circumstances where a medical retirement cannot be regarded as punishment, consideration of whether the dismissal was 'harsh' is not appropriate.
The outline then canvassed the matters that the Commission may, if appropriate, take into account when determining an unfair dismissal application, which are set out in s 88 of the Industrial Relations Act 1996 ("Act"). The submissions continued as follows:
5. Remedy
5.1 The application should be dismissed.
5.2 The application was filed prior to a dismissal decision being made, and it is unclear precisely the remedy sought by the Applicant.
5.3 In the event that the Commission finds that the dismissal was unfair, the Respondent submits that reinstatement or redeployment are not appropriate remedies in all the circumstances.
5.4 The undisputed medical evidence is that the Applicant is not fit to perform her duties as GASO 1/2 at Burwood Police Area Command and that this incapacity appears to be permanent.
5.5 Reinstatement is not practicable in the circumstances where the Applicant is not fit to discharge the duties of the position. As set out above, it is not contested that the Applicant is not fit to perform the duties of the position of GASO 1/2 at Burwood PAC.
5.6 The Applicant does not expressly seek reemployment, although on the basis of the matters set out above as well as the Applicant's submissions as to the assignment of the Applicant to an alternative position, it appears that this is the remedy sought by the Applicant.
5.7 The onus falls to the Applicant to demonstrate that there is another position that the employer has available and to lead evidence to satisfy the Commission that the position is suitable: s 89(2) of the IR Act. The Applicant has not done so.
5.8 It appears that the Applicant seeks reemployment to no position, with the Respondent to then retain the Applicant in employment until a position acceptable to the Applicant is identified. This position goes significantly further than the ability to reemploy under s 89(2) of the IR Act and should not be accepted by the Commission.
5.9 The Respondent accepts that it is open to the Commission to consider compensation as a remedy in the event that the dismissal is found to be unfair and reinstatement or reemployment is not practicable. The Applicant has led no evidence of loss following the dismissal, nor any evidence of any steps taken to mitigate that loss. Further, in view of the matters set out in these submissions, compensation is not an appropriate remedy.
6. Conclusion
6.1 For the reasons set out above, the unfair dismissal application filed by the Applicant should be dismissed.
Applicant's case in reply
Written submissions in reply were filed on behalf of the applicant wherein it was stated that the time spent by the applicant in the Deployment Unit was between 13 July and 1 September 2020, a period of approximately 7 weeks. Reference was made to emails that would demonstrate the existence of a vacant GASO 1/2 position within the Northern Beaches PAC. Attached to the written submissions was a chain of emails dated 21 August 2020 which included an email from Sergeant Daniel Bourke, Field Liaison, Deployment and Transition, Workforce Safety Command, to Spyros Kehris, Police Area Manager, Northern Beaches PAC, asking Mr Kehris to conduct an initial suitability assessment of the applicant for a vacant position, and Mr Kehris' response.
Reference was made to previous representations which had been made to Superintendent Driver on behalf of the applicant. Issue was also taken with the respondent's reliance on the authority of Clarke on the basis that the applicant had the capacity to perform the full range of duties of her role at a location other than Burwood PAC. Reliance was placed on the decision of the Full Bench of the Commission in Riley.
The applicant's submissions in reply concluded as follows:
15. The Applicant submits that the Commission should first consider the question of whether the Applicant was unfairly dismissed and if it so finds, should then adjourn the proceedings and direct the Respondent to supply a list of vacancies for GASOs in the metropolitan area. The parties will then be able to make submissions based on current evidence regarding available suitable positions.
The hearing
At the hearing on 24 June 2022, the email chain referred to at [45] above, together with a further email of 27 August 2020 from Mr Kehris, were tendered into evidence without objection. These emails dealt with a then vacant position at Northern Beaches PAC.
On 21 August 2020, Mr Kehris, in response to Sergeant Bourke's request concerning an initial suitability assessment of the applicant for the vacant position, responded as follows:
I have been down this path before with Josephine during past recruitment and as she was at NBPAC before my time and didnt work out then
In line with past issues I dont believe she is a good fit for the Command.
Im happy to discuss when I get back in the office next week
On 27 August 2020, Mr Kehris sent a further email to Sergeant Bourke which contained the following:
As previously advised whilst I've never worked with Ms Josephine Russo, I have interviewed her for a previous GASO role at NBPAC and NSPAC in 2017. I note she was also interviewed by my predecessor in 2015 for vacant GASO role at Northern Beaches.
During the recruitment processes in 2015 and 2017, the outcome of Ms Russo's candidature were similar in that, overall Ms Russo displayed a weak level of competency across all selection criteria that was less than acceptable for the position despite already being employed as a GASO at another command. Ms Russo's responses to all questions were very limited and lacked depth and therefore did not satisfy the panel, she has the necessary skills and knowledge to perform the role. Whilst Ms Russo was able to demonstrate she has some skills in relation to the computers and records management, they were not to the levels required by the Capability Framework. Based upon Ms Russo's responses to the interview questions there was a high degree of uncertainty whether she could perform the role. I can report that both panels were unanimous in the decision.
I believe that you have discussed with my Region Business Manager Ms Ingrid Thompson that Josephine Russo has an extensive history at both Manly and Dee Why Police Stations, where she was a GSO at Manly in the late 1990's and early 2000s and in 2003 transferred to Dee Why. As a result of the GASO implementation in 2008, Ms Russo received a redundancy as the Commander at Northern Beaches at the time stated she did not meet either the required performance nor skill capabilities required; and, her conduct was too poor to progress to a GASO role.
Since your initial email, I have done my own due diligence with an open mind with her current Manager, Ms Megan Potts at Cumberland PAC (by chance I was told she was on a RTW Plan there when I recently visited) and her substantiative Manager at Burwood PAC, Ms Maria Betsas. As a result, I have great concerns after the assessment by two senior managers of Ms Russo's performance and behaviour are that they are quite concerning and questionable. I am even more concerned that despite being employed as a GASO for a long period of time she has not mastered two of the most important (basic, mundane) tasks of the GASO role, TRIM/RMS and Customer Service ie Front Counter of a Police Station. At Northern Beaches PAC, I also have the critical and challenging area of Court Process which is extremely demanding on GASOs and this causes me concern about her abilities to adapt.
I believe she is being Performance Managed as a result of her capabilities and competencies for the position of GASO. As a long term GASO if she is displaying performance issues over many years, I can't see how, any further placements and/or assessment is going to benefit the NSWPF or the Command.
These references are consistent with the independent recruitment outcomes from 2015 and 2007.
Furthermore, the feedback I received, that apart from Ms Russo's poor performance she also possesses a pattern of behaviour which creates a hostile workplace over a long period of time amongst management and fellow colleagues.
I have consulted with my Commander; Supt Sharkey and he is not conducive to picking up an officer on a past or current Performance Plan. I am also concerned that Ms Russo's major motivators to come to Northern Beaches is to be working closer to home and to avoid current workplace relations and performance issues. rather than based on displaying her capabilities and performance.
Therefore, I am concerned the impact this will have on my staff who have previously worked with her at Northern Beaches and Manly. I genuinely have serious concerns of the impact of this proposed placement on my staff and the fabric of the Command.
Following the tender of the emails referred to above, the applicant gave evidence and was cross-examined by Lucy Shanahan, solicitor for the respondent. Under cross-examination, the applicant gave the following responses:
Q. Ms Russo, if I refer you to paragraph 55 of your statement?
A. Yes.
Q. During the period September 2020 to August 2021 did you identify any vacant positions that were available in the police for you to apply for?
A. Yes.
Q. Did you make any application for those positions?
A. No, I just looked to see where they were.
Q. But you didn't apply for any vacant positions at that time?
A. Well, if they were too far away, no.
Q. At any time between September 2020 and August 2021 did you instruct your union to follow up with the Commissioner of Police about your case?
A. Yes.
Q. But there's no evidence - you haven't put on any evidence about any attempts that were made by your union in that period of time?
A. I don't recall.
Q. Ms Russo, have you made any attempts to apply for any work since your employment has been terminated?
A. No, not of late, no.
Q. And so you haven't been performing any work of late?
A. No.
(T P 15 L 12-35)
Ms Betsas gave evidence for the respondent and was cross-examined by Mr Wright about the email from Mr Kehris set out at [50] above, as follows:
Q. If I can take you to the document that I've marked as exhibit 1B, you'll see that that's an email from Spyros Kehris, who I believe is the manager from Northern Beaches PAC?
A. Yep.
Q. Okay, now you'll see in paragraph 4, there's a paragraph that starts "Since your initial email"?
A. Yep.
Q. I'll just read out the bit that I want to ask you about.
"Since your initial email, I have done my own due diligence with an open mind with her current manager, Ms Megan Potts, at Cumberland PAC. By chance, I was told she was on a return to work there when I recently visited and her substantive manager at Burwood PAC, Ms Maria Betsis".
So, Mr Kehris is saying that he spoke to you, is that what happened?
A. I did have a conversation with Mr Kehris at some point.
Q. And he says,
"As a result, I have great concerns after the assessment by two senior managers of Ms Russo's performance and behaviour. They are quite concerning and questionable."
So, did you tell Mr Kehris that Ms Russo's performance and behaviour were quite concerning and - sorry. Did you tell her, did you tell Mr Kehris that Ms Russo's performance and behaviour is quite concerning and questionable?
A. I can't exactly recall the full conversation but I do recall discussing Ms Russo's current situation of not being in the workplace at Burwood.
Q. Okay but did you discuss your assessment of her performance and conduct?
A. I can't recall.
Q. If you can go to page 2 of that document once again the one that I call "B" that is actually part of exhibit 1 and the second paragraph starts, "I have consulted"; can you see that?
A. Yes.
Q. It says, "I have consulted with my commander, Superintendent Sharkey", is the commander of the Northern Beaches Police Area Command, yes? "And he's not conducive to picking up an officer on past or current performance plan". Now, do you agree that that indicates that Mr Kehris thinks that at the time he wrote this that Ms Russo was on a past or current performance plan?
A. By reading that, yes.
Q. Now, where would you have got that idea?
A. Couldn't tell you, sorry.
Q. But he says in his letter that he spoke to you at Burwood. If there was a past or current performance plan, you'd agree that you would have been administering it?
A. Yes but she wasn't on a plan.
Q. That's correct. She wasn't on a plan, was she?
A. No, so--
Q. And so somehow, after talking to you, Mr Kehris has got a view that she was on a plan. Are you saying you didn't tell him that?
A. No, I didn't tell him that.
(T P 25 L 26 - P 26 L 36)
Superintendent Driver who, at the time of the hearing was Acting Commander of Professional Standards, was cross-examined by Mr Wright in the following terms:
Q. You say that, as requested by Ms Russo, you turned your mind to whether there had been sufficient attempts in the circumstances to redeploy her. Right, now, so you then say that you satisfied yourself on the basis that she had been referred for deployment and that it was recommended that deployment efforts were satisfied and she be considered for medical retirement. So, on the one hand, you're saying that you'd turned your mind to whether sufficient attempts had been made to redeploy her and then I put it to you that you then say, however, your view was the fact that she'd been on deployment and then referred to you meant that there had been sufficient efforts to deploy her. Is that a fair summary of what you said at clause 7?
A. Not exactly.
Q. Okay, could you explain it?
A. Well, that was one element but I did review the circumstances of her individual circumstances, that she'd been out of the workplace since I think it was 27 or 28 March 2019. There'd been a five week recover at work plan at Campsie, from memory and then an 11 month placement at Granville, otherwise known as "Cumberland PAC". And there had been a permanent offer made at Fairfield and it was now two and a half years down the track since Ms Russo had been at Burwood and I felt that that was - the attempts made to recover at work and the deployment aspect, I thought those efforts were reasonable. So, to answer your question, that was one element but then I revisited that in my own mind to make sure that I was satisfied in respect to that.
(T P 29 L 4-27)
At the conclusion of the witness evidence, oral submissions were made by Ms Wright for the applicant and Ms Shanahan for the respondent. In his submission, Mr Wright referred to "a non-existent performance problem that couldn't be resolved…" (T P 34 L 45-46).
Determination
In this matter, the applicant does not seek reinstatement in her former position with Burwood PAC. The Application before the Commission, in effect, seeks an outcome whereby the Commission makes an order that the applicant be re-employed into a GASO 1/2 position within a reasonable distance from her home in Collaroy, namely, within those PACs identified in the witness statement of Mr Duncan.
It is my determination that the Application be dismissed. For the reasons set out below, I am unable to find that the termination of the applicant's employment was either harsh, unreasonable or unjust.
The undisputed medical evidence before the Commission is that the applicant is unfit to perform or is incapable of discharging the duties of her former position, namely GASO 1/2 at Burwood PAC, and that her unfitness or incapacity appears likely to be of a permanent nature, having been the case since March 2019. I agree with Superintendent Driver that, in the applicant's case, the requirements for retirement on medical grounds under s 94B of the Police Act have been met.
The question then arises as to whether the failure of the respondent to place the applicant in another GASO 1/2 position in a Command other than Burwood PAC constitutes a failure by the respondent take reasonable steps to accommodate the applicant's limitations such as to render the termination of her employment harsh, unreasonable or unjust. In Riley the Full Bench of the Commission (Wright J, President, Boland J, Connor C) stated at [80]:
... The appellant was "a skilled and competent officer with a wealth of experience and knowledge to impart to others" with almost 18 years of satisfactory service. He found himself in a position where, because of a medical condition arising out of or in the course of his employment, he was unable to fulfil all of the inherent requirements of his job. In our view, it was incumbent on the employer to take reasonable steps to accommodate Mr Riley's limitations; otherwise his dismissal would be, prima facie, harsh, unreasonable or unjust.
The facts in Riley, including the personal attributes of the appellant in that case, stand in contrast to the facts in the present matter.
I am satisfied that the respondent did take reasonable steps to accommodate the applicant's limitations. After going off work sick in March 2019 and being certified by her treating doctor as unfit to perform duties at Burwood PAC, the applicant, in June 2019, was placed on a graded Recover at Work Plan, firstly at Campsie PAC and then at Cumberland PAC. In March 2020, the applicant was offered a permanent position at Fairfield PAC but did not accept it due to the travel time there and back from her home in Collaroy.
In July 2020, the applicant was referred to the NSWPF's Deployment Unit where attempts were made to place her in a suitable position. One such attempt is dealt with at [45] and [48]-[50] above. I note that Mr Kehris was not required for cross-examination and I accept that his concerns about the applicant's performance and conduct were genuinely held.
An issue was raised by Mr Wright on behalf of the applicant to the effect that Mr Kehris, after speaking to Ms Betsas, held the belief that the applicant had been on a performance management plan when she was at Burwood PAC and that the Commander of the Northern Beaches PAC, Superintendent Sharkey, was "not conducive to picking up an officer on a past or current Performance Plan". Whether or not the applicant had ever been placed on a formal performance management plan is largely beside the point. It is clear from the evidence of Ms Betsas, which I accept, that she had been managing the performance of the applicant at Burwood PAC for a considerable time (see [31]-[37] above).
It is also clear that the Commander of Burwood PAC, Detective Superintendent Devaney, advised the applicant on 2 September 2020 that, if she was medically cleared to return to Burwood PAC, she would be placed on a formal performance management plan on her return (see [14] above).
Based on the evidence of Ms Betsas, I accept that her concerns about the applicant's performance and conduct were serious and genuinely held. It follows that I reject Mr Wright's characterisation of those concerns as "minor disciplinary and performance issues", "nit-picking about court and administrative work" (at [19] above) and "a non-existent performance problem" (at [54] above).
The concerns about the applicant's performance and conduct were not factors in the decision of Superintendent Driver that the applicant be medically retired. However, it was the existence of these concerns that hindered the respondent's ability to place the applicant in a GASO 1/2 position outside of Burwood PAC. This was demonstrated by the concerns expressed by Mr Kehris at the prospect of the applicant coming to work at Northern Beaches PAC. In the face of these concerns, this Commission could not form the opinion that the position at Northern Beaches PAC or, for that matter, at any other PAC that is available, is suitable such as to warrant the exercise of the Commission's discretion to order the respondent to re-employ the applicant in any such position (s 89(2) of the Act). It would be impracticable to do so.
The only other potentially available remedy for the applicant is compensation (s 89(5) of the Act). However, an order for compensation to a dismissed employee is still dependant on a finding that the dismissal was harsh, unreasonable or unjust.
The High Court discussed the distinction between the concepts of harsh, unreasonable and unjust in Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465 where McHugh and Gummow JJ stated (in the context of an award provision):
... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.
Based on the above discussion, a dismissal which has been found to be neither unjust nor unreasonable, may still, nevertheless, have been harsh on the basis of the "consequences for the personal and economic situation of the employee".
However, in this case there is no evidence before the Commission of the personal and economic impact on the applicant of the termination of her employment. With respect to the issue of mitigation of that impact, whatever it may have been, the applicant's own evidence is that she has made no attempt to apply for any work since her employment was terminated {at [51] above). There is nothing before the Commission that would support an order for compensation in favour of the applicant.
It follows that the Application must be dismissed.
Order
I order that the Application for Relief in relation to Unfair Dismissal filed in the Office of the Industrial Registrar by Josephine Russo on 9 August 2021 be dismissed.
John Murphy
Commissioner
[2]
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Decision last updated: 09 December 2022