Simmonds v Commissioner of Police

Background

1. As at the date of the hearing, the applicant was married with two daughters who were born in August 2018 and January 2021.
2. The applicant attested as a Constable of Police on 11 December 2015 and was stationed at what was then known as Blacktown Local Area Command, later renamed Blacktown PAC.
3. The applicant was promoted to the rank of senior constable and was performing general duties.
4. On 7 September 2021, the applicant undertook his last shift prior to having a scheduled arthroscopy, lateral release and chondroplasty to his right knee.
5. Also on 7 September 2021, the respondent issued a written direction (the "Direction") in the following terms: 1. From the date of this document, applicable to all members of NSWPF (officers and administrative employees), I direct that a member of NSWPF cannot perform any duties unless: a. if the duties are performed on or after 30 September 2021 the member has received at least one dose of COVID-19 vaccine; and b. if the duties are performed on or after 30 November 2021 the member has received at least 2 doses of a COVID-19 vaccine. 2. If required by a member's manager, supervisor or Commander, a member must provide vaccination evidence. 3. The directions in 1 and 2 above do not apply to a member of NSWPF: a. who is unable, due to a medical contraindication, to receive a COVID-19 vaccine and presents a medical contraindication certificate in the form approved by NSW Health (accessible via Service NSW) to their manager, supervisor or Commander; or b. as I determine appropriate in my absolute discretion, or the absolute discretion of a member of NSWPF I delegate to make such a determination, subject to consideration of their specific circumstances at the time of determination. To ensure, so far as reasonably practicable, the safety of members of NSWPF an individual asserting an inability to comply with direction 1 for a medical reason may be directed to attend the Police Medical Officer or independent medical practitioner for further clarification or assessment of their medical contraindication/condition. Failure of a NSWPF member to comply with this direction will ultimately result in management action. Given the effort of all members of NSWPF to date during the pandemic I trust this will not be necessary and members come together to protect themselves, their colleagues and members of the NSW community.
6. The written direction was accompanied by a video from the then Deputy Commissioner, Karen Webb APM, explaining the direction which was in the following terms: "Given the current circumstances, all New South Wales Force members will now be required to be vaccinated for COVID-19".
7. From 9 September 2021 through to 7 March 2022, the applicant was certified as unfit and unable to perform duties.
8. On 22 September 2021 the applicant received an email from Superintendent Egginton, in which the applicant was reminded about the Direction which was attached to the email.
9. On 25 September 2021, the respondent sent a video to all members and employees of the Force, which was described as a reminder of the direction of 7 September 2021. It provided that by 30 October 2021, all members and employees of the Force were required to: 1. have at least one COVID-19 vaccination and provide evidence of vaccination to the Command for upload into SAP, treated as health information or; 2. provide a medical contraindication certification in the form located at https://www.health.nsw.gov.au/Infectious/covid-19/vaccine/Documents/covid-19-vaccine-contraindication.pdf, which stated that "this is the only form that will be accepted"; or 3. provide details of extenuating circumstances to the relevant Commander if those circumstances were felt by the member or employee to warrant consideration by the Assistant Commissioner, Human Resources, for exemption under cl 3(b) of the 7 September 2021 direction.
10. The video also stated: "If you decline to comply with the Commissioner's direction, you will: (a) Not be permitted to perform duties; (b) Be required to take a form of your leave, the type being determined by your Commander/Manager and; [sic] (c) Be subject to disciplinary action."
11. On 27 September 2021 the applicant submitted a report dated 24 September 2021, requesting an exemption under 3(b) of the Direction based on his medical history (the "Godfrey Report").
12. In the first week of October 2021 the applicant received a phone call from Superintendent Egginton, who informed the applicant that his request for exemption under 3(b) of the Direction was declined.
13. The applicant received the Godfrey Report with the comment, on 21 October 2021.
14. The Godfrey Report contained a number of comments, including that of Assistant Commissioner Wood who made the final decision to refuse the 3(b) request. The comment bears the date of 29 September 2021 and is set out as follows: Whilst I have determined that the request be declined as the Commissioner's direction is unambiguous and the submission does not provide any extenuating circumstances that warrant deviation from this position, I acknowledge that the officer is not currently in the workplace. I therefore require the officer to be fully vaccinated before he returns to work and to provide proof of vaccination before this time. Command to liaise with officer and provide this advice.
15. Also on 21 October 2021, the applicant was served with a 7-day reminder letter signed by Superintendent Egginton, which referred to the Direction including receiving a first dose of COVID-19 vaccine by 30 September 2021 and a second one by 30 November 2021. It also gave the applicant the following directive: I am providing you with seven calendar days from the date of this letter 21 October 2021 to further consider the direction and comply with steps (1), (2) or (3) above, or provide evidence of compliance with the direction stop if you do not provide a response or follow these steps, further consideration will be given to what further action may be appropriate.
16. On 28 October 2021, the applicant sent an email to Superintendent Egginton, attaching a letter dated 28 October 2021 in which the applicant requested that the respondent provide responses to the following questions: 1. What medical evidence and data was relied upon by the Commissioner to mandate vaccination for employees? 2. Can a copy be provided to me, of the NSWPF and Blacktown PAC COVID - 19 Risk Assessment and Vaccination Risk Assessment for the recommended vaccine and stipulate the risks, effectiveness, and safety of the vaccine? 3. What checks have been conducted with respect to the effectiveness of the vaccination control measure in light of emerging data that the current vaccinations do not prevent infection or transmission of the Delta variant? 4. As mentioned above, the vaccine manufacturers of the current COVID-19 vaccines have been granted immunity from liability, and in consideration of my recent complicated medical history, will the NSWPF be liable for any compensation to myself or my family should I suffer a serious adverse reaction, suffer long-term effects, or die as a result of receiving the vaccine?
17. On 16 December 2021, the applicant was served with a notice under s 181D(3) of the Act dated 8 December 2021 (the "Notice"), which provided that removal was being considered as a result of an allegation that he had "deliberately chosen not to comply with the direction dated 7 September 2021 and the direction of Deputy Commissioner Webb issued 25 September 2021".
18. On 3 January 2022, the applicant received a text message informing him that the PCR test he undertook the day before was positive for COVID-19.
19. On 12 January 2022, the applicant received, from his local GP, a COVID-19 vaccine medical contraindication certificate in the form approved by NSW Health confirming a contraindication to COVID-19 Immunisation due to recent SARS-CoV-2 infection.
20. On 21 January 2022, a response to the Notice which was prepared with assistance of legal practitioners (the "Response") and attached the medical contraindication certificate. In addition to claiming that he had an exemption arising from the medical contraindication certificate, the applicant put that he had not deliberately disobeyed the Direction.
21. On 31 January 2022, the applicant was informed that the medical contraindication certificate recorded an incorrect date of diagnosis and would need to be amended. On 1 February 2022, Mr Simmonds sent through an amended medical contraindication certificate.
22. On 7 March 2022, the applicant's certificate of capacity was updated and permitted the performance of light duties on 3 days per week for 6 hours per day.
23. On 22 March 2022, the applicant was provided with the Order.

Approach

1. In considering the Application, I am required by s 181F(1) of the Act to: 1. consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force (the "NSWPF"); 2. consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust; and 3. consider the case presented by the Commissioner in answer to the applicant's case.
2. Sub-section 181F(2) of the Act places the burden of proof on the applicant to establish that the removal was harsh, unreasonable or unjust.
3. In Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236; 299 IR 314 at [84] and [96] the majority (Bell P and Macfarlan JA) concluded the burden under ss 181F(2) at all times rests on the applicant, and is not a reference to any "evidentiary" or "tactical onus" which may shift during the course of the proceedings.
4. Also, Bell P at [84] in Zisopoulos held that the onus can, in some cases, be satisfied by the applicant casting sufficient doubt on the Police Commissioner's reasoning process.
5. The Commission is also required under s 181F(3) to take into account the applicant's interest as well as the public interest.

The Reasons

1. The Order provides that the grounds relied on by the respondent to issue the Order are as follows: I am satisfied that there are reasonable grounds to conclude that you have deliberately chosen not to comply with the direction of former Commissioner Fuller, APM, dated 7 September 2021 and my direction issued on 25 September 2021. In particular, it appears that you have: • failed to receive one or both dose(s) of a COVID-19 vaccine within the specified timeframe; and / or • failed to provide evidence of your vaccination status. In the circumstances, I find that your conduct was contrary to the Police Act 1990, the Police Regulation 2015, the WHS Act and the NSW Police Force Code of Conduct and Ethics.
2. The Order then set the particulars of the contraventions as follows: Section 7 of the Police Act 1990 relevantly states: Statement of values of members of NSW Police Force Each member of the NSW Police Force is to act in a manner which: (a) places integrity above all, (d) seeks to improve quality of life by community involvement in policing, (e) strives for citizen and police personal satisfaction, Section 201 of the Police Act 1990 relevantly states: Neglect of duty etc A police officer who neglects or refuses to obey any lawful order or carry out any lawful duty as a police officer is guilty of an offence. Clause 8 of the Police Regulation 2015 relevantly states: Performance of duties by police officers (1) Police officers are to comply strictly with the Act and this Regulation and promptly comply with all lawful orders from those in authority over them. Section 28 of the Work Health and Safety Act 2011 relevantly states: Duties of workers While at work, a worker must- (a) take reasonable care for his or her own health and safety, and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and (c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and (d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers. Point 1 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must behave honestly and in a way that upholds the values and the good reputation of the NSW Police Force whether on or off duty. Whether on or off duty your conduct will reflect on the NSW Police Force. All employees must protect the reputation of the NSW Police Force through appropriate behaviour. You must always act lawfully and never in a way that brings, or is likely to bring discredit to the NSW Police Force. Point 3 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must know and comply with all policies, procedures and guidelines that relate to their duties. Point 5 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must comply with any lawful and reasonable direction given by someone in the NSW Police Force who has authority to give the direction. As an employee you will, from time to time, be subject to direction from others. Compliance with lawful and reasonable directions is essential to ensuring the NSW Police Force operates safely and effectively. Point 6 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must comply with the law whether on or off duty.

Applicant's case

1. The applicant's Summary of Case filed prior to the hearing commencing, outlined his case as follows: a. The Applicant has not failed to comply with the Direction. He complied by not returning to the workplace while the Direction was being enforced, and in the absence of his 3b exemption application being approved, or his valid medical contraindication certificate being accepted. b. The Direction is otherwise unlawful and/or unreasonable, because: i. The Commissioner of Police has no power to mandate vaccination, or any other form of medical intervention for members of the NSWPF. Mandating medical interventions to members of the NSW Police Force does not fall within the purview of the Respondent's powers of her members. This was not contemplated by the Legislature at the time the Police Act 1990 was drafted. ii. The Direction had the effect of coercing NSWPF members to receive the COVID-19 vaccination to maintain their employment. Contrary to the Respondent's view that the Applicant had a choice, it was a restricted choice placed under pressure to maintain employment. iii. There was no effective consultation between the Respondent and NSWPF members in relation to mandating vaccination in the workplace. iv. There is no evidence to support the Respondent's rationale for mandating vaccination in the workplace i.e. the belief that the COVID-19 vaccination reduces or eliminates transmission of the virus. v. The Respondent paid no regard to the growing number of adverse reactions experienced by those who received the COVID-19 vaccines, including those members of the NSWPF who had to take leave as a result of those reactions. vi. The Respondent provided no indicia for the exercise of discretion when determining whether to approve a member's 3b exemption application. The exercise of the Respondent's decision making was arbitrary and without any guidelines for consistent determination. c. The Applicant provided a valid medical contraindication certificate, which the Respondent unreasonably rejected. d. The Applicant was not provided with procedural fairness by virtue of: i. The Respondent's non-compliance with the consultation requirements under Work Health and Safety Legislation; and/or ii. The Respondent failing to properly consider and engage in a meaningful way with respect to the Applicant's concerns in relation to the COVID-19 vaccination; and/or iii. The Respondent enforcing an extended interpretation of the Direction, and increasing the seriousness of the action that may be taken against members who do not receive vaccination. e. The Respondent has provided no evidence justifying the rationale for the continued enforcement of the Direction, particularly in the face of waning efficacy of the COVID-19 vaccines and the spread of different variants of the coronavirus despite the majority of the population being vaccinated.
2. In opening his case, the applicant abandoned all previous arguments except for that relating to the exemption based on the provision of a valid medical contraindication certificate.
3. Secondly the applicant recast his case in oral submissions in the following way: Now, this case that I'm running today is a much more simple case. It returns really to the first principals of these types of reviews. Harsh, unjust, unreasonable. It is about whether or not the application of the direction to the applicant, in these particular circumstances, were harsh, unjust and unreasonable. The dates are going to be very important in this case. The applicant's filed a chronology which I will refer to many times as we go throughout. But this is really a peerless case. This case standards apart from all the cases that have come before it because of these three facts. The first is that the applicant was on worker's compensation before the direction was issued. He was absent from the workplace when the direction was issued - this is all part of reason one. When the direction was issued, he applied for an exemption. That exemption was denied, however, it was acknowledged consistent with the policies of the respondent that because he was out of the workforce he was not required to be vaccinated, until such time as he were to return to the workforce. The key date there is 29 September 2021. That is one day before the applicant would otherwise have been said to have breached the direction. That's how this case stands apart from your Chrystals and your Southcotts, the ones - and Welch - the ones where people had a month or so where they were in breach, and then they decided to take leave in order to avoid the alleged obligation. That did not happen for Mr Simmonds. He got his - I'm going to call it a dispensation - on 29 September. The second pillar. There was a policy within the respondent that persons who were out of the workforce were exempt from compliance if they were wholly, medically unfit. That was a policy that ought to be applied in our submission - in my submission - consistently throughout the whole workforce. The third aspect of this case - which is really the trifecta - unlike any other case, this applicant also had a valid medical contraindication. Now, there will be things said, by my friend, about whether or not it was valid or not valid. I am content to have that dispute, and the evidence will show that a valid medical contraindication was submitted…….. ………………………………….. The fourth aspect - which caps it off in my submission. Every case before this one has held that the practical effect - so, even is a person were held to be unfairly dis - even if there were deficiencies in the process et cetera - the practical effect would be no different because the direction was still on foot, and in the world of the respondent. How could a person possibly return. How could a person possibly be trusted. How could a person possibly maintain a relationship of employment with the respondent if there was a direction in place that required them to be vaccinated and they were not vaccinated. That fact changed on 1 June 2023.
4. In the Applicant's written Outline of Closing Submissions filed on 28 November 2023 (the "Applicant's Written Submissions"), the applicant materially changed the case from that set out above. He put that his case was being advanced on the following four bases: 4. First, at the time that the Respondent initiated disciplinary action against the Applicant, he was not in fact in breach [of] any direction issued by Commissioner Fuller on 7 September 2021 (Fuller Direction) or any alleged direction issued by Deputy Commissioner Webb (which is disputed) because he was subject to a deferral granted to him by Assistant Commissioner Wood (Wood Decision). The deferral was granted in acknowledgement of the Applicant's total incapacity to return to the workforce whilst he was on workers compensation leave and recovering from work related injury (and not able to be directed to carry out any duties - including a direction to be vaccinated). Hence in remaining unvaccinated and continually relying upon Wood Decision, the Applicant was not insubordinate or refusing to follow any lawful and reasonable direction(s). Every step in the disciplinary process was infected by the erroneous premise that the Applicant had breached the Fuller Decision. However, the Applicant was at all times compliant because he was directed to remain on leave and not return to the workforce up until his dismissal on 22 March 2022. 5. Second, the Applicant submitted a medical contraindication certificate which allowed him to remain unvaccinated by reason of prior contraction of COVID-19. The Applicant submits that consistent with the direction issued by Commissioner Fuller on 7 September 2021 (Fuller Direction) and the processes of the Respondent, the certificate was or should have been accepted by Respondent and the Applicant consequently excused from complying with the Fuller Direction until at least 2 May 2022 if not 2 July 2022. However, the medical contraindication certificate was never properly considered by Respondent because, by that time, the Applicant was already subject to the (erroneous) disciplinary process which took precedence over all else. The Applicant's right to have his medical contraindication assessed and accepted was hijacked by a misconceived disciplinary process initiated with no proper basis in fact. 6. Further, the Applicant submits that unfairness arises in circumstances where the Respondent did not ever communicate to him that his medical contraindication certificate had been rejected until it provided him with the s.181D reasons as part of his notice of termination. Consistent with the plain words of the Fuller Direction, and in the absence of any notification to the contrary, the Applicant was entitled to rely upon the medical contraindication certificate as a basis upon which to remain unvaccinated. If the Respondent considered that the Applicant had breached the Direction because the medical contraindication did not apply, then it ought to have afforded procedural fairness to him at that point in relation to that specific breach at that specific time. 7. Third, the Applicant submits that the Respondent adopted unfair procedures that caused "substantial and irrevocable prejudice" to the Applicant including by failing to take into consideration his written submissions and the relevant material as to the Wood Decision; depriving him of procedural fairness and denying him the final opportunity either become vaccinated or resign from the New South Wales Police Force (NSWPF) - and therefore avoid a record of "serious misconduct". Crucially, the Applicant made it clear that he was not opposed to receiving a vaccine, only that he (rightly) denied allegations of breach when he was subject of a deferral granted by Acting Commissioner Wood and, later, a valid medical contraindication certificate which had not been rejected by the Respondent. The Respondent's failure to follow its own processes in issuing a 7-day reminder notice at a point in time where the Applicant was actually in breach of any direction (which is not conceded) meant that the final choice to be vaccinated (or to resign) was never put before him as it was all other unvaccinated employees within NSWPF. 8. Fourth, the harshness of the dismissal is plain when considering the personal circumstances of the Applicant who, at the time, was wholly incapacitated from the workforce, dependent on workers compensation payments and financially responsible for two children under the age of five as well as a pregnant wife. Being tarnished with a record of "Serious Misconduct" has prevented the Applicant from obtaining work even under the guidance of his workers compensation program.
5. In addition, the applicant sought to rely on the treatment of two other officers who contacted COVID-19, and whom he alleged were treated in a manner inconsistent with that of the applicant. The evidence for this derives from materials produced by the respondent in answer from a Summons to Produce and tendered by the applicant. As a result of orders made pursuant to 164A of the Industrial Relations Act 1996 (NSW) on 14 December 2023, these two officers are referred to as Officer A and Officer B
6. Officer A was provided with an effective deferral of four months on 11 April 2022 from the requirement to be vaccinated based on contracting COVID-19 and in circumstances where he was not required to provide a medical contraindication certificate.
7. As to Officer B, he was allegedly in breach of the Direction for a period of time and was provided a deferral after providing a medical contraindication certificate upon request.
8. As to the public interest, the applicant made the following submission: 94. As to the considerations of public interest required by s.181F(3), the Applicant submits that it is: a. in the interest of the public for the NSWPF to follow its own processes when removing police officers; b. in the interest of the public for NSWPF to ensure that people in its workforce are not dismissed without reasonable justification or on the basis of allegations which are not founded in fact; c. in the interest of the public for NSWPF to have a compliant and skilled police officer serving the community in his profession of choice. 95. As to the considerations of the Applicant's interests, plainly, it is in his interests not to be dismissed from his profession of choice for being non-compliant when that conclusion is not supported on the facts; not to be prevented from seeking work that aligns will his skill set by reason of a finding of "Serious Misconduct" on his employment record; and not to be deprived of his livelihood and ability to support his wife and three young children.
9. Finally, the applicant in closing oral submissions conceded that should the first basis of the applicant's case fail, i.e., the temporary exemption allegedly created by Assistant Commissioner Wood, the applicant's case in totality fails.

Respondent's case

1. The primary contention of the respondent's case is that the applicant is not permitted to advance the central proposition that he had a temporary exemption from Assistant Commissioner Wood. The reasoning behind this submission is set out in the following passage from the respondent's written outline of closing submissions: 10. Section 181F(1) does not permit the Commission to deviate from this strict sequence in conducting its review. It is apparent, however, that the Applicant has sought impermissibly to depart from this sequence by seeking to resile from submissions and admissions made as part of presenting his evidentiary case which in large part reflected and adopted the Response. In so doing, the Applicant has failed to comply with the requirements of s 181G(1)(f), by either giving notice of intention to do so or by obtaining leave of the Commission (Newton v New South Wales Police Service (No 2) (1999) 87 IR 66 at 80; Van Huisstede v The Commissioner of Police (2000) 98 IR 57 at [148]-[155]). The Applicant cannot now change his case after having submitted his Response, without having sought and been granted leave of the Commission. (Footnotes omitted)
2. In further support of this contention, the respondent relied upon the finding of Commissioner Stanton in Pace v Commissioner of Police [2020] NSWIRComm 1005, in particular the following paragraphs: 603. Given the Commissioner is required under s181(D)(3)(b) to take into consideration written submissions received from the Police Officer following the "show cause" period of at least 21 days and, the mandatory obligation of the Commissioner under s181(D)(3)(c), to consider those submissions prior to the making of any Order, it seems that the intention of Parliament was that an applicant is simply unable to change an aspect of his or her Response and evidentiary case as filed absent further directions being made or varied by consent or by the grant of leave. The legislative scheme would become unworkable if an applicant was allowed multiple attempts to put the written case why removal is harsh, unreasonable or unjust. 604 Accordingly, it is impermissible for an applicant to depart from their 181(D)(3)(b) case without further directions or leave being sought and granted. Otherwise, the process of show cause and review would be ongoing which does not seem to be the intention of Parliament. Put alternatively, absent leave or a variation in directions, an applicant only has "one shot" to state why the removal is harsh, unreasonable or unjust. 605 In circumstances where an applicant has not presented a response to a particular reason(s) of the Commissioner, it is not permissible to subsequently provide a "response" during the course of arbitration without first obtaining leave from the Commission, because s181(D)(3) contemplates that the Police Officer must make his written submission in relation to the Removal Order within at least 21 days after the Show Cause Notice has been received.
3. Secondly, the respondent put that even if the applicant was permitted to advance the temporary exemption case, the evidence when viewed objectively did not support a finding that the applicant was relying upon it in support of his proposition that he had not deliberately breached the Direction.
4. As to the medical contraindication certificate, the respondent firstly submitted that the correct process was followed.
5. Secondly, it was put that the medical contraindication certificate that did not state that the applicant could not be vaccinated due to contracting COVID-19. In particular, the respondent pointed to the notation on the medical contraindication certificate which stated: People who have had a recent SARS-Cov-2 infection can be offered COVID- 19 vaccination. There is no requirement to delay COVID-19 vaccination following SARS-Cov-2 infection, if the person has fully recovered from their acute illness……
6. Given the applicant had no severe acute illness from his contracting of COVID-19 the respondent contended that there was no basis for the applicant not to be vaccinated.
7. The respondent made the following submissions concerning the applicant's allegation that the respondent failed to follow its' processes: 76. The Applicant also now relies upon the HR Fact Sheet published by the Respondent on 13 September 2021 (HR Fact Sheet) and correspondence sent by the Respondent to the PANSW on 10 September 2023 in asserting that the Applicant was exempt under NSW Police Force policy from compliance until he became fit for duty, and should have been permitted to defer his vaccination until his return to the workplace. 77. The Applicant's reliance upon these documents is misconceived. It entails a misinterpretation of the HR Fact Sheet, which specifically states the following: All officers/employees on approved forms of leave are captured by the Commissioners COVID-19 Vaccine Mandate direction, noting vaccination has been readily available to officers since March 2021. The only exemption to this will be officers who are medically certified as not to return the (sic) NSWPF in any capacity. This is being reviewed by Workforce Safety and these will be considered collectively. 78. The words 'in any capacity' suggests that the police officer must be incapacitated such that he or she is unable return to work. The Applicant appears to suggest that the words 'in any capacity' means temporary incapacity. However, in context, only those officers who are permanently unfit and medically certified not to ever return to the NSWPF were to be exempt from compliance with the Direction. Superintendent Driver gave evidence confirming that only those officers permanently unfit, and transitioning to medical retirement, were exempt from compliance with the Direction. These officers proceeding to medical retirement are dealt with by the Workforce Safety Command, as referred to in the HR Fact Sheet. Those persons who are temporarily incapacitated on workers compensation are dealt with by a different section of the NSW Police Force, being the Injury Management Unit. 79. Superintendent Driver said there was a cohort of approximately 250 officers who were deemed (based upon medical evidence) unfit to ever return to duty, and were granted an exemption from the Direction on that basis. In this context, the reference to the group being treated 'collectively' makes more sense because it is intended to refer to a group who will no longer be working with the NSW Police Force and therefore will not pose a risk to others, given they would not be required at some stage in the future to perform work for the NSW Police Force unvaccinated if exempted from compliance with the Direction. Superintendent Driver gave further evidence that the Applicant did not fit into this category, as his unfitness for duties at that point in time did not mean that a medical opinion had been expressed that he could not ever return to the NSW Police Force in any capacity. On this basis, Superintendent Driver gave evidence that the Applicant did not fall within the cohort exempt from compliance with the Direction, as set out in the HR Fact Sheet and/or the correspondence to the PANSW. 80. It would not make sense if the policy was not applied in this manner, as the HR Fact Sheet also sets out that all officers and employees on approved forms of leave (which would include sick leave and/or workers compensation leave) are captured by and required to comply with the Direction. Any officer on sick leave is presumably unfit to return to duties at that point in time in any capacity. That is why they are not at work. It cannot be that all those officers are exempt from the Direction, as that would be undermine the balance of the policy which seeks to ensure that officers are vaccinated in order to return to work and even if they are on leave at that point in time. 81. The Applicant's misplaced reliance on the HR Fact Sheet also fails to have regard to the fact that the document specifically contemplates that a temporary exemption will only be granted to officers 'who have confirmed they agree to be vaccinated prior to their return [sic - end quote]. The Applicant has not given any such undertaking at any point. (Footnotes omitted)
8. Attention was drawn by the respondent to the Statement of Reasons accompanying the Order in response to the applicant's submission concerning the alleged failure of the respondent to consider the applicant's personal circumstance. Following this, the following oral submission was made on behalf of the respondent: …I will take into account that is, you will take into account as the member of the Commission undertaking a review under s 181E of the Police Act so ultimately it doesn't really matter a jot in my respectful submission but in any event, it's clear that the Commissioner of Police did take into account all those personal circumstances in determining whether or not the order should be issued or not but ultimately the integrity of the New South Wales Police Force, the need to ensure community safety and the basis of directing officers to comply with lawful directions as part of a hierarchical command were factors that outweighed the personal circumstances or the personal reasons that Mr Simmonds advanced for why he didn't decide to vaccinate.
9. As to the comparison to Officer A and Officer B, the respondent, by reference to the cases of Burge v BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325 and B, C and D v Australia Postal Corporation T/A Australia Post [2013] FWCFB 6191, submitted that the matters and circumstances surrounding Officer A and Officer B needed to be identical for the comparison to be of any utility.
10. The respondent submitted that the comparison between the applicant on the one hand and Officer A and Officer B was inapt given the different points in time and circumstances.
11. Finally, the respondent submitted that the public interest is best served by upholding the Order.

Consideration

1. In closing oral submissions in chief, the applicant made the following submission regarding the: The key point is firstly whether or not the applicant actually breached the Fuller direction, that's the main point for this case because if he did breach it then what follows is that the actions that were taken against him were correct. If he didn't breach it, then what follows is that the actions that were taken against him were based on an erroneous premise and therefore, visited unfairness upon him.
2. Given the above concession by the applicant, the critical issue for determination is whether the applicant did not breach the Direction, as he had been provided and reasonably believed that had a "temporary exemption" as constituted by the comment of Assistant Commissioner Wood in the Godfrey Report.
3. I turn firstly to the respondent's contention that ss 181G(1)(f) and the reasoning of Commissioner Stanton in Pace provides a barrier to the applicant in advancing this case. Which if accepted would have the effect that the applicant is beholden to the case advanced by him before the respondent in his Reply, unless he has provided notice in advance of the hearing or has sought leave of the Commission.
4. In dealing with the respondent's submission, it is appropriate to set out ss 181G(1)(f): 181G APPLICATION OF INDUSTRIAL RELATIONS ACT 1996 TO REVIEWS (1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications - …….. (f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless-- (i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or (ii) the Commission gives leave.
5. As can be readily seen and correctly submitted by the applicant, the requirement for notice or leave of the Commission only applies to the provision of new evidence and not the "case" that it is put. For this reason, it is apparent that I am not bound to follow Pace at paragraphs [603]-[605] in so far it applies to the presentation of a new case.
6. The applicant drew the Commission's attention to the Full Bench decision of this Commission in Bradley George Hosemans v Commissioner of Police [2004] NSWIRComm 253, which amongst other things, considered the proper approach for the acceptance of "new evidence" for the purposes of s 181G(1)(f). In particular the applicant relied on the following passage from Hosemans in relation to what constituted "new evidence": 115 We believe that reference to 'new evidence' in s181G(1) and (2) is reference to any evidence that was not before the Commissioner and that would be considered relevant to the review process required to be undertaken by the Commission and admitted pursuant to the discretion provided. We hasten to add that our view thus expressed excludes the circumstances where the Commission must grant leave to adduce new evidence as provided in s181G(2)(a), (b) and (c).
7. It is uncontroversial that the comments of Assistant Commissioner Wood in the Godfrey Report were in the materials before the respondent, however the question is whether there was evidence before the respondent or at least in the materials filed in the Commission that the applicant had received and relied upon the afore mentioned comments as a temporary exemption.
8. The applicant contended that in his Reply he had put the respondent on notice as to his belief that he had a temporary exemption as follows: 1. In the Reply where he stated at paragraph [11]: "I wish to highlight that I have been restricted from suitable duties and remain unsuitable for duties at this time. This is due to my recent knee surgery which is explained below at paragraph 15. As such, it is my submissions that I have not breached the Direction"; and 1. At paragraphs [12] to [19], he reiterates and maintains his earlier positions as set out in correspondence that the reason why he believed he had not breached the Direction was because of the operation of the Wood Decision.
9. Dealing with the first basis, it is important to read the first sentence of paragraph [11] of the Reply, which is: "However, the Direction states that a member of the NSW Police Force ('NSWPF') cannot perform any duties unless the member has received vaccination by specified dates". Thus, when read in whole, paragraph [11] of the Reply convey to the reader that the Direction prohibits the performance of duties and the applicant was to performing any duties and thus was not in contravention of the Direction.
10. As to the second basis, paragraphs [12]-[19] of the Reply are as follows: 12. Additionally, l made several attempts to engage with and seek the discretion of the Commissioner for an exemption, as well as requesting further information from NSWPF to better understand the Direction. These requests are evidenced in my Godfrey Report dated 24 September 2021 ('the Godfrey Report'), which is found at page 19 to 21/Annexure 5 of the CCS Documents, and my subsequent communications, as referenced Annexures 7 and 8 of the CCS Documents. 13. As I specified throughout those communications, and reiterate herein, I was (and am) not unwilling or refusing to receive the vaccine. 14. I sought an exemption because of the limited number of evidence/studies available on the long term effects the vaccines, as well as the fact that the vaccines are largely of a provisional/experimental in nature. My particular concern and reason for an exemption was with regards to the risks of blood clotting that have been associated with the vaccine. 15. As explained in my Godfrey's Report, the issue of blood clotting is of particular concern to me due to my heighten risk of blood clots that have followed the complications with my leg injury I sustained in a NSWPF sanctioned Rugby League match in November 2020. For brevity, I wish to rely on the submissions made in my Godfrey's Report rather than repeat them herein. Further medical documentation regarding this issue can also be found in my Workers Compensation profile. 16. I have been off work since 9 September 2021. 17. In early October 2021, I was notified that my request for an exemption was rejected. 18. On 21 October 2021, I was provided with a further 7 days to comply with the Direction. 19. On 28 October 2021, I again reiterated my position regarding the Direction in a letter to the Commander of Blacktown Police Area Command, (see page 25-26/Annexure 7 of the CCS Documents).
11. There is no specific reference in the above paragraphs of the Reply to the Wood comment operating in the manner as asserted by the applicant in his submissions. The applicant was taken to this particular issue by the Commission in the following exchange: Q. But you didn't draw the Commissioner's attention to the temporary 3B? A. Not in my show cause directly. It was raised in my letter of response. Q. Which letter of response? A. I - it was my response letter after I received the seven day reminder letter. It was dated 28 October.
12. Turning to the 28 October 2021 letter, the only reference to the comment of Assistant Commissioner Wood was in the following paragraph: The reminder letter from Supt Stephen Egginton outlines that I have 7 calendar days to comply with the Commissioner's direction or I will not be able to perform duties, be required to nominate a form of leave and be subject to disciplinary action. I am currently away from the workplace on Workers Compensation due to injury and are not suitable for duties stop I do note that Asst Commissioner Gavin Wood stated in his response that I would be required to show proof of vaccination before returning to work which appears to be in contradiction of the seven-day reminder letter. Furthermore, the lawfulness of the requirement to nominate a form of leave is in question with the Police Association of NSW challenging this on the basis of received legal advice.
13. Apart from noting the comment in the Godfrey Report of Assistant Commissioner Wood was inconsistent with the 7-day letter, there is nothing on the face of the above paragraph of the 28 October 2021 that could be construed as evidence that the applicant had received a temporary exemption.
14. The first time that the applicant made specific reference to the comment of Assistant Commission Wood having the effect of providing the applicant with a temporary exemption was in cross examination, which is set out in the following exchange with counsel for the respondent: Q. You didn't get an exemption, correct? A. Not correct. Q. No one granted you an exemption, did they? A. No, that's not correct. Q. When did you get an exemption from the New South Wales Police Force? A. From Assistant Commissioner Wood, temporarily. Q. You're talking this is prior to receiving the seven day notice? Is that your point? A. Well, I think technically I got it on the same day.
15. I pause here to note the applicant also submitted that a Jones v Dunkel inference could be drawn given the failure of the respondent to call evidence, presumably from Assistant Commissioner Wood and perhaps Inspector Egginton. A Jones V Dunkel inference is only available in certain circumstances, the first of which being an expectation that a party would call that evidence (see RHG Mortgage Ltd v Ianni [2015] NSWCA 56 at [76]). Given the manner and time at which the issue of the alleged temporary exemption was raised by the applicant, there would have been and was no expectation that the respondent would call evidence in relation to this issue. As such, there is no basis for drawing the inference sought by the applicant.
16. Whilst it is uncontroversial that the Godfrey Report and the 28 October 2021 letter of the applicant was before the respondent and the material filed with the Commission, the same could not be said in relation to the applicant alleging that he had a temporary exemption and thus was not in breach of the Direction.
17. Given the above findings I am not satisfied that the comment of Assistant Commissioner Wood operated in the manner that the applicant alleges, particularly when one has regard to the issuing of the 7-day reminder letter and the Notice.
18. Also, I am not satisfied that the applicant had a belief that prior to his removal that he had a temporary exemption via the comment of Assistant Commissioner Woods. If he did truly hold that belief, it would have been raised squarely by the applicant in his reply to the Notice, which I note was prepared with the assistance of his then legal representatives.
19. Finally on the issue of the alleged temporary exemption, it is important to observe that the applicant was certified fit to perform some duties prior to the Order and he had not taken any steps to become vaccinated. Thus, even if the applicant had genuinely believed that he had a temporary exemption, he was in breach of this exemption and therefore the Direction as at the date of the issuance of the Order.
20. Given the applicant submitted that his case rose and fell on the existence of the temporary exemption, it is unnecessary to consider the other aspects of his case. However, the medical contraindication certificate provided by the applicant and considered by the respondent, given the notation referred to by the respondent above, did not provide a proper basis for the applicant not to become vaccinated.
21. Also, the comparisons to Officer A and Officer B are inapt, there is simply not sufficient detail as to the background of these two individuals to make a valid comparison with the applicant. In any event the Commission is reluctant to undertake an exercise of comparative analysis in determining s181E applications, see for instance Stuart Boyd Formston v New South Wales Police [2006] NSWIRComm 88 at [104].
22. As to harshness, it is beyond doubt that the impact on the applicant is harsh. However, as was determined by the Commission as currently constituted in Welch v Commissioner of Police [2023] NSWRIComm 1002 at [74-75], that in balancing all matters the dismissal of the applicant is justified
23. Turning to the s181F(3) matters, in Chrystal v Commissioner of Police, NSW Police (No 2) 2023 NSWIRComm 1108, Commissioner McDonald reached the following conclusion in relation to the public interest considerations under s 181F(3) regarding an officer removed for failing to comply with the Direction: 170. I have had regard to these two interests in the foregoing consideration. In summary: 1. the public interest in this case, especially as it is defined in s 181F(3) of the Police Act, strongly supports the Commissioner's Order; 2. in particular, the hierarchical nature of the NSWPF and the rational and protective basis for the Direction, indicates that the public interest is best served by the Commissioner's Order; 3. while the removal of an experienced officer is extremely regrettable, the need to maintain discipline within the Police Force is paramount; and 4. while I have considerable sympathy for the Applicant and the predicament she found herself in after many years of loyal service, the fact is, the outcome is one she had the power to prevent.
24. The conclusion in Chrystal is one which equally applies in this matter and for the same reasons I find that the public interest favours the maintenance of the Order.

Conclusion and orders

1. For the above reasons I find that the applicant has not made out his case and that his removal from the force was not harsh, unjust or unreasonable and accordingly I order that his application be 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: 09 July 2024