Smith v Commissioner of Police

The Decision Under Appeal

1. In the Decision, Commissioner Muir: 1. summarised the evidence before him (at [9]-[20]); 2. set out the legal framework under which the review was to be conducted (at [21]-[35]); 3. in accordance with the process required by s 181F of the Police Act: 1. analysed the reasons of the Commissioner of Police for the Order (at [36]-[57]); 2. outlined the case presented by Ms Smith on review (at [58]-[92]); 3. outlined the case presented by the Commissioner of Police in response (at [93]-[104]); and 4. considered the interests of the applicant and the public interest (at [105]-[115]).
2. Commissioner Muir's findings as to whether the Order was harsh, unreasonable or unjust were set out in the Decision as follows: "123. The Commissioner levelled 11 allegations against the applicant as the basis for removing her from the NSW Police Force. … 124. The applicant was able to challenge some of these allegations to an extent that, in the absence of any satisfactory response from the Commissioner, the applicant would have discharged the burden on her of establishing removal on such a basis was harsh, unreasonable or unjust. 125. In this category are Allegations 4, 5, 8, 9 and 10. In each case the Commission has determined that removal on the basis of, or including, those allegations would be unjust as the Commission has concluded there is no basis for a conclusion that the events which support those allegations occurred as alleged. 126. Nothing put by the Commissioner in her case in answer to the applicant's case persuaded the Commission that these conclusions are not correct. 127. For the reasons set out above at [63], [75], [81] and [92], in respect of Allegations 1, 2, 3, 6, 7 and 11 the applicant has either failed to discharge the burden on her, or the Commission is indeed satisfied that events occurred as set out in the Commissioner's reasons. 128. Despite this, the Commission has determined that, because of the lower gravity of the misconduct alleged in those allegations, removal based on Allegations 1, 2, 3 or 6 would be unjust. To this point, there still remains the question of whether the existence of these allegations would support the removal, where that removal is more substantially based on Allegations 7 and 11. This could, as submitted by the respondent, be further supported by the applicant's previous disciplinary history. 129. The Commission has concluded that the applicant's removal based on Allegations 7 and 11 was not unjust. This conclusion is reinforced as correct when the totality of Allegations 1, 2, 3 and 6, and the applicant's prior disciplinary history are considered. 130. It is important to observe that the decision of the Commission is a review of the decision of the Commissioner, and at the time that the decision of the Commissioner was made. On this basis, the Commission has concluded that removal on the basis of Allegations 7 and 11, even supported as a group by Allegations 1, 2, 3 and 6, and by the previous disciplinary history of the applicant, would be harsh. 131. In reaching this conclusion the Commission has had regard to a number of factors including, in order of importance: (1) The matters set out above from [105] to [115] as to the interests of the applicant and the public interest; (2) The relative inexperience of the applicant as a police officer; (3) The objective seriousness of Allegations 7 and 11, but which are nevertheless not the most egregious examples which could be contemplated; (4) The absence of any evidence that the applicant was counselled or disciplined as a corrective measure, or that any more senior police officer saw fit to intervene at an early juncture to prevent matters escalating; and (5) The Commission's findings as to the antagonistic workplace to which the applicant was assigned. 132. This conclusion was an on balance conclusion. Each of the matters set out above contributed to this conclusion, and the absence of any of them may have been sufficient to tip the balance against the applicant."
3. Commissioner Muir proceeded to deal with the question of the appropriate remedy. Under the heading "Is reinstatement or re-employment impracticable?", the Commissioner observed: "133. In such circumstances, the respondent's submissions as to why reinstatement and/or re-employment are impracticable warrant careful consideration. 134. Clearly the interests of the applicant are best served, in the usual course, by either reinstatement or re-employment. In this case there is, on the evidence of the applicant herself, a question as to whether it is in her interests for there to be an order for reinstatement. As the respondent submitted, the applicant was unable to say unequivocally she would be able to return to her previous appointment to the Hume PD. 135. The Commission has determined that reinstatement or re-employment of the applicant would be impracticable. 136. In addition to all the matters which were considered above as to whether the removal was harsh, unreasonable or unjust, the Commission may, and in my view should, take into account any post removal conduct of the applicant which would be relevant to the public interest, particularly as it is defined in s 181F(3)(b). 137. In giving evidence, the applicant expressed a strident view that several police officers at the Hume PD were involved in a conspiracy against her interests. When given opportunity to resile from, or at least moderate, this view, the applicant pointedly refused to do so. While the applicant called evidence from Senior Constable Goulder, which established the antagonistic nature of her workplace at Hume PD, this evidence fell substantially short of establishing any conspiracy. Neither she nor anyone else provided any evidence, beyond her bare assertion, of such a conspiracy. 138. Her evidence compels the Commission to the view that her reinstatement or re-employment would be contrary to maintenance of the integrity of the NSW Police Force. 139. The fact that the Commissioner removed the applicant supports this conclusion. The removal would not of itself have been a basis to find reinstatement and re-employment impracticable. It is not an essential part of reinstatement and re-employment being impracticable."
4. As already stated, Commissioner Muir proceeded to determine that an order for compensation should be made, in an amount equal to the remuneration received by Ms Smith in the 13 weeks prior to her removal from the NSW Police Force.

Approach on appeal

1. Section 188 of the Industrial Relations Act provides that an appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.
2. The principles governing the granting of leave to appeal were conveniently summarised by the Full Bench in in the following passage from Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263: "5. The law and practice governing leave to appeal is well settled and does not require restatement. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted and, subject to the requirements of s 188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal 'raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application' or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence."
3. More fulsome summaries of the relevant principles are set out by the Full Bench in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 at [10]-[11] and by Walton J in Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association (2022) 320 IR 249; [2022] NSWSC 1178 at [21]. We will not reproduce those passages.
4. As we have determined to refuse leave to appeal, we will not traverse the authorities as to the approach the Full Bench should take were leave to be granted.

The application for leave to appeal and appeal

1. The grounds on which Ms Smith asserts that leave to appeal should be granted may be summarised as follows: 1. the decision not to order her reinstatement to, or re-employment with, the NSW Police Force was manifestly wrong in light of Commissioner Muir's failure to have regard to relevant evidence of Donna Glover. Ms Glover was a civilian employee in the NSW Police Force. After sustaining a workplace injury, Ms Smith performed "suitable duties" under Ms Glover's supervision; 2. there was a complete failure by Commissioner Muir to deliver any reasons regarding why reinstatement or re-employment would be impracticable, which should be addressed by the Full Bench so that guidance can be given for future cases regarding sufficiency of reasons. There is a question of public importance whether such an error is jurisdictional in nature given the failure to provide reasons leads to a constructive failure to exercise jurisdiction; 3. there was a complete failure by Commissioner Muir to consider re-employment separately from reinstatement; 4. there is an issue of public importance regarding a significant failure to have regard to a material consideration and whether that constitutes jurisdictional error; and 5. a question arises "regarding the manner in which the maintenance of the integrity of the NSWPF test operates" in light of the findings made at [133]-[139] of the Decision, and in light of the complete lack of reasoning regarding reinstatement and re-employment.
2. The grounds of appeal set out in the Application for Leave to Appeal and Appeal ("Grounds") are as follows: "1. The decision lacks any or any adequate reasoning regarding impracticability of reinstatement or in the alternative reemployment. 2. The decision is in error in finding reinstatement or in the alternative reemployment is impracticable. 3. The decision fails to have regard to the evidence of Donna Glover regarding practicability of reinstatement or in the alternative reemployment. 4. The decision fails to separately consider reinstatement and reemployment in circumstances where a further hearing regarding reemployment had been sought following the delivery of reasons regarding whether the removal was harsh[,] unjust and or unreasonable. 5. The Commissioner erred in not reinstating or reemploying [sic] the appellant in circumstances where there was no evidence from other officers that they would not or could not work with her."

Consideration

1. The application before the Full Bench is confined to Commissioner Muir's determination not to order that Ms Smith be reinstated to her employment with the NSW Police Force, or that she be re-employed.
2. Section 181G(1) of the Police Act provides that the provisions of Pt 6 Ch 2 of the Industrial Relations Act (which deal with unfair dismissals) apply to an application for a review under Pt 9 Div 1C of the Police Act, subject to the terms of the Police Act.
3. Section 89 of the Industrial Relations Act sets out the orders that "may" be made by the Commission following a finding that a dismissal was harsh, unreasonable or unjust. It is uncontroversial that the decision whether to award any remedy under s 89 is discretionary in nature: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325; [2001] NSWIRComm 117 at [34] and Dumas v Industrial Relations Secretary [2019] NSWIRComm 1071 ("Dumas") at [25].
4. It is equally uncontroversial that the architecture of s 89 "creates a hierarchy of remedy for unfair dismissals, with reinstatement being the primary remedy (along with relief relating to continuity of service and compensation for lost remuneration before the reinstatement is given effect)": Dumas at [24]. In short, the section anticipates that the remedies for which it provides would be considered in cascading order, with re-employment being considered only if reinstatement is impracticable, and compensation only being considered if re-employment is impracticable.
5. In Dumas, the Full Bench considered the meaning of "impracticable" for the purposes of s 89 of the Industrial Relations Act. Having reviewed a number of authorities, the Full Bench observed: "34. What is clear from the authorities is that there is a range of circumstances that may make reinstatement impracticable. [In] one context, it may be impracticable because it is impossible, for example where the position in question no longer exists. In another context, it may be impracticable to reinstate an employee because the break down in the employment relationship is such that it simply is 'not practicable' to expect that the relationship issues that led to the dismissal of the employee can be overcome and the employment relationship effectively re-established. The later example was clearly envisaged in the second reading speech introducing the remedy scheme for unfair dismissals. This example also makes clear that whether it is practicable to reinstate an employee means something more than 'possible'."

Ground 1

1. It cannot properly be contended, as Ground 1 does, that the Decision lacks "any" reasoning regarding the impracticability of reinstatement or re-employment. The salient question arising from Ground 1 is whether the reasoning the Decision was "adequate".
2. The premise of this ground is the contention in Ms Smith's written submissions on appeal that the "entire consideration" by Commissioner Muir as to whether Ms Smith's reinstatement or re-employment was impracticable was limited to [133]-[139] of the Decision. It was contended that those paragraphs fail to establish any meaningful explanation as to how it is that the Commissioner reached his conclusion.
3. The Commissioner of Police submitted that on a proper reading of the Decision, it is apparent that Commissioner Muir's consideration as to the impracticability of reinstatement or re-employment was not confined to [133]-[139] of the Decision. For the reasons which follow, we accept those submissions.
4. At [136] of the Decision, Commissioner Muir stated that he had regard to "all the matters which were considered above as to whether the removal was harsh, unreasonable or unjust", as well as Ms Smith's post removal conduct (described at [137] of the Decision). The "matters…considered above" included the following: "101. Finally, the respondent submitted that allegations by the applicant of a conspiracy against her by police officers at the Hume PD, all but one of whom were senior to her, were made without any 'objective evidence'. This submission is accurate in its terms, although by their very nature it is likely that such allegations would be made largely on the basis of oral evidence. The respondent developed her submission on this point, inviting the Commission to find that the applicant's evidence demonstrated her unwillingness to accept that the NSW Police Force operates on the basis of a strict command structure. 102. Having observed the applicant while she gave evidence, the Commission finds there is considerable force to these submissions by the respondent. It is one thing to point to differences between people's versions of events and explain why they might have differing recollections, or an incentive to incorrectly recall events. It is another to allege that essentially every other police officer is involved in a conspiracy. The latter would, as the respondent submitted, amount to serious misconduct by those other police officers. 103. In its totality the Commissioner's case in response has either been dealt with previously in considering the applicant's case, or does not amount to matters which bear on whether the removal was harsh, unreasonable or unjust. Some of it, as is set out below, does bear on whether reinstatement or re-employment is impracticable. … 111. The first of these is the interest of maintaining the integrity of the NSW Police Force. This may be capable of covering a wide range of matters, but clearly includes matters such as discipline, compliance with lawful orders, honesty, diligence and competence. To some extent this has been addressed in analysing whether the removal was harsh, unreasonable or unjust. The respondent also squarely put this in issue, as set out at [101-102], when it addressed the applicant's evidence as to the existence of a conspiracy against her. The Commission considers those submissions must be taken into account as to the public interest. … 115. In this case the respondent has made submissions in relation to the public interest which go both to whether the removal was harsh, unreasonable or unjust, and as to whether the applicant should benefit from reinstatement or re-employment. These are as set out above at [111] and [113]. … 117. Given the conclusions of the Commission as to the credibility of Senior Constable Goulder, and given the evidence from Senior Constable Goulder and the applicant herself, the Commission was left in no doubt that the applicant's workplace was rife with factions, personal agendas and animosity between police officers of various ranks. 118. I consider this is relevant as to the weight the Commissioner ought to have placed on the version of events, given by a range of people, and set out in the Commissioner's reasons or in documents in the Bundle. It is clear that the applicant perceived that a number of police officers shared an agenda which was directed to damaging or ending her career as a police officer. That Allegations 1 to 6 were either ill-founded or patently unable to sustain removal will no doubt have fuelled this perception. 118. The Commission does not find that such a 'conspiracy' exists, and certainly not one involving the Commissioner who signed the removal order. It is nevertheless apparent to the Commission that such matters should have been expressly addressed when considering the applicant's removal. No such consideration appears in the Commissioner's reasons." (Emphasis added)
5. It is clear from these extracts that the Commissioner's consideration as to the impracticability of reinstatement or re-employment was not limited to [133]-[139] of the Decision. Rather, the Commissioner is to be seen in those paragraphs as "drawing the threads together" to determine remedy.
6. In Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 McColl JA, with whom Macfarlan JA agreed, observed (at [152]) that a tribunal "is not expected to set out every consideration which passes through the decision-maker's mind, although some, and usually the most significant, will be expressly dealt with". In the same case, Emmett AJA observed (at [227]) that it is "not necessary for a decision-maker to expose every step in the chain of reasoning that leads to the conclusion".
7. We also have regard, without reproducing them, to the observations of the Full Bench in Redmond v Director General, NSW Department of Health, on behalf of the Ambulance Service of New South Wales [2012] NSWIRComm 147 at [30]-[40], [48] and [59]-[63], and in Charles v Northern New South Wales Local Health District [2016] NSWIRComm 8 at [22]-[23].
8. Having regard to these principles, and adopting a fair and proper reading of the Decision, we consider that Commissioner Muir has adequately set out the "chain of reasoning" that led him to conclude that it would be impracticable to order Ms Smith's reinstatement or re-employment. It follows that we are not persuaded that Ground 1 discloses error.

Ground 2

1. It is apparent from the Decision that in determining the impracticability of reinstatement and re-employment, Commissioner Muir placed significant weight on the "conspiracy" alleged by Ms Smith. He found that there was "considerable force" to the submissions of the Commissioner of Police that Ms Smith's allegations "demonstrated [her] unwillingness to accept that the NSW Police Force operates on the basis of a strict command structure" (at [101]-[102]). He took those allegations into account in determining the public interest (at [115]). They formed the basis of the Commissioner's consideration of Ms Smith's post removal conduct, noting the "strident view" put forward by Ms Smith at the hearing (at [137]).
2. On appeal, Ms Smith contended that she had not alleged a "conspiracy", in terms, in the proceedings below. At the hearing of the appeal, Ms Smith submitted that she "did not understand that we ever alleged that there was a conspiracy per se" and that "conspiracy was never our word".
3. Ms Smith also drew our attention to the evidence of Senior Constable Goulder, which was accepted by Commissioner Muir "at its highest" (at [17]), who stated that in his view two named senior constables "were out to get" Ms Smith. Senior Constable Goulder's evidence supported the Commissioner's conclusion at [117] that Ms Smith's workplace "was rife with factions, personal agendas and animosity between police officers of various ranks".
4. At the hearing of the appeal, Ms Smith suggested that there was a tension between Commissioner Muir's findings as to whether the Order was harsh, unreasonable and unjust, and his conclusion at [138] that Ms Smith's reinstatement or re-employment "would be contrary to maintenance of the integrity of the NSW Police Force". She submitted that she had been "largely exonerated" in respect of the allegations made against her, and that Commissioner Muir had found that she worked in an antagonistic workforce in which some other officers were out to get her. Ms Smith submitted that it was difficult to "tally" those findings with the conclusion at [138].
5. In her submissions on appeal, the Commissioner of Police contended: "4.8 While not expressly challenged in the notice of appeal, AS [26] and [44] seeks to impugn the Commissioner's finding at [137] of the Decision. That challenge does not confront the reality of the evidence the Appellant gave. Relevantly: (a) When it was put to her that she considered that a number of police officers were in a conspiracy against her, the Appellant evaded directly answering, did not reject the proposition and instead impliedly accepted it, stating that 'Nothing that's been alleged against me occurred.' The Commissioner found that the conduct subject of that allegation was substantiated; (b) Immediately prior to the exchange extracted at AS[23], the Appellant had the following exchange with counsel for the Respondent: Counsel: [D]o you stand by your evidence and your response that Sergeant Cook was not only untruthful but he colluded with two other constables or senior constables to deliberately make up this complaint by Ms Wales? Appellant: I believe so. (c) In her response to the Notice issued to her in accordance with s 181D(3)(a) of the Police Act, which was presumably written on the Appellant's instructions and which the Appellant expressly adopted as truthful in her witness statement, the Appellant's solicitor wrote that the Appellant: believes…Sergeant Cook used his time to collude with others to deliberately manufacture a false complaint against her.'; (d) When asked about that paragraph in cross-examination, the following exchange ensued: Counsel: [H]ave I understood that correctly, the collusion that Constable [sic] Cook is doing is with the two senior constables, Senior Constable Innes and Senior Constable Finch? Appellant: I said colluded with others and in relation to the letter by Probationary Constable Lewis-Keating, is that what you're asking me about? Counsel: I'm just trying to understand at the moment your allegation that Sergeant Cook has colluded to deliberately manufacture, is he doing that with the two senior constables, Innes and Finch? Appellant: Yes, I believe so. (e) The Appellant gave further evidence that: (i) she 'believe[s] that there may have been a concerted effort by a small number of people to call [her] employment into question'; (ii) particulars of a matter had been 'concocted and manufactured by two officers not present at the job'; (iii) allegations against her had been 'fabricated'; and (iv) an Inspector had failed to be impartial in respect of complaints about her." (Footnotes omitted, emphasis in original)
6. The Commissioner of Police also drew our attention to the following extract of the transcript of proceedings before Commissioner Muir, recording an exchange between Ms Smith and counsel for the Commissioner of Police: "Q. So, is it your evidence that Ms Brown was mistaken about the events of 27 August 2018 as she's recorded in her statement and in the interview in December 2018? A. Which statement, sorry? Q. Her account of this evening, which is in two parts. There's a statement that she made the very next day, that was in the Commissioner's confidence documents and also in the Commissioner's confidence documents is a record of interview that she gave in December 2018. Are you saying she's mistaken about her account? 50 A. In relation to the statement that she provided on 28 August 2018, to Senior Constable Canestrari, that never happened. And in relation to matters that she's raised in her interview, on 6 December 2018, that neither happened. So, call it what you will, mistaken, untruthful. Q. Well, do you say it's fabricated, like it's intentionally made up? A. Yes. Q. And what about Senior Constable Canestrari? Do you say that he's mistaken or has he fabricated it? A. It's my belief that he has engaged in serious misconduct in relation to that and been untruthful and influenced that statement. Q. And the same for Senior Constable Bailey? He's also mistaken? Or was he mistaken or did he intentionally make up-- A. I believe there's been collusion because things that they're alleging occurred did not occur and, as I said, the whole police station was under CCTV footage. Q. I put it to you that there's absolutely for Ms Brown, Senior Constable Canestrari or Senior Constable Bailey to gain making up an allegation? A. Well, it appears as they were directed by Inspector John Klepczarek to go and obtain the 28 August 2018 statement. And then all these details that Senior Constable Bailey alleges in his notebook aren't reflected to that accuracy in his police notebook entry and I do believe that there was a concerted effort by a small number of people under the direction of Klepczarek to be untruthful and put together untruthful things. At the end of the day, I was acting in the lawful execution of my duties and it's clear, I've reported misconduct and I've been reprised upon. Q. They're very, very serious allegations that you're making; do you agree with that? A. They're serious allegations but that is the truth and that's all I can tell you in relation to that. … Q. Do you accept Ms Smith, that you haven't provided any evidence other than your oral and written account of what you believe to support the allegation that these people have engaged in serious misconduct? A. Have the NSW Police Force undertaken an investigation in relation to the matters that I have raised? That would have been something that I would have been able to put forward to the Commission because I believe there's been a concerted effort to generate these documents."
7. The word "conspiracy" is not used in the Decision as a term of art. In context, there is no meaningful distinction between the Commissioner's use of the term "conspiracy" and Ms Smith's use of "collusion". The Decision captures the flavour and effect of Ms Smith's evidence. To challenge the Decision based on the use of the word "conspiracy" is to focus on a tree and not the forest.
8. As to the evidence on Senior Constable Goulder, it suffices to say that it was taken into account by Commissioner Muir at [137] of the Decision. The question for the Commissioner was not whether there was an antagonistic workplace (he found that there was), but whether the allegations that Ms Smith levelled at other officers could be maintained. Significantly, Ms Smith's allegations of collusion against her were not confined to the two officers identified by Senior Constable Goulder in his evidence.
9. For these reasons, we also do not accept Ms Smith's submissions that it is difficult to reconcile the Commissioner's findings as to whether the Order was harsh, unreasonable or unjust with his conclusion that Ms Smith's reinstatement or re-employment would be contrary to maintenance of the integrity of the NSW Police Force. The submissions do not properly reflect the basis on which Commissioner Muir determined that reinstatement and re-employment were impracticable.
10. We further observe that the question as to whether the Order was harsh, unreasonable or unjust had to be determined by reference to facts at the time the Order was made. This is to be contrasted with the determination of remedy, including reinstatement or re-employment, which has to be assessed at the time of hearing.
11. Having regard to these matters, we consider that there was a proper basis on the evidence for Commissioner Muir to determine that Ms Smith's reinstatement or re-employment was impracticable. There is nothing to suggest that the Commissioner misunderstood the approach to be taken to the exercise of his discretion in this regard. It follows that Ground 2 fails to disclose error in the Decision.

Ground 3

1. Ground 3 asserts error in that the Decision fails to have regard to the evidence of Ms Glover regarding the practicability of reinstatement or re-employment. Ms Glover's evidence was to the effect that she had a positive view of Ms Smith's performance of her duties in the return to work programme and she had no difficulties working with her.
2. Commissioner Muir referred to Ms Glover's evidence at [15]-[16] of the Decision, in fairly short order. He determined that "little importance can be attached to Ms Glover's evidence". On appeal, Ms Smith submitted that there was no basis on which Ms Glover's evidence should have been discounted in such a manner.
3. Ms Smith further submitted that the work she was performing under Ms Glover's supervision was important, sensitive work. At the hearing of the appeal she described Ms Glover's evidence as being in the nature of a "glowing reference". She argued that Ms Glover's evidence was "clearly relevant and should have been considered by Muir C as part of his consideration of the practicability of reinstatement".
4. There is nothing on the face of the Decision to suggest that Commissioner Muir had regard to Ms Glover's evidence in determining the practicability of reinstatement or re-employment. However, it does not follow that he erred as a result.
5. Commissioner Muir determined that reinstatement and re-employment were impracticable having regard to the public interest and the need to maintain the integrity of the NSW Police Force, in the context of Ms Smith's allegations of collusion against other officers. Ms Glover's evidence was not germane to that consideration, particularly in relation to Ms Smith's post removal conduct on which the Commissioner relied.

Ground 4

1. Ground 4 asserts that Commissioner Muir erred in failing to separately consider reinstatement and re-employment, in circumstances where a further hearing regarding re-employment had been sought following the delivery of reasons as to whether the removal was harsh, unjust and/or unreasonable.
2. Ms Smith's submissions rest in large part on Commissioner's findings as to the environment at her substantive place of work, the Hume Police Area Command ("Hume PAC"). These are contained particularly at [117] and [137] of the Decision, reproduced above. Ms Smith contended that in the event that the Commissioner had concerns with her being stationed at Hume PAC, it was open to him to determine that another PAC would have been a suitable alternative location at which Ms Smith could work. Ms Smith further contended that if the Commissioner had such concerns "the appropriate course would have been to conduct a further hearing after making the finding that the removal was harsh and unreasonable".
3. It is clear from the Decision that Commissioner Muir considered both reinstatement and re-employment. His findings as to impracticability applied equally to both remedies. In effect, he was not persuaded to restore the employment relationship in any form. As the Commissioner of Police submitted on appeal, "the factors that the Commissioner determined as relevant as to the impracticability of reinstatement or re-employment self-evidently apply regardless of where [Ms Smith] was working".
4. The Commissioner of Police disputed the extent to which Ms Smith had sought a further hearing on the question of re-employment. She argued in particular that Ms Smith had only sought to be heard on the question of re-employment if the Commission was satisfied that the employment relationship could be restored.
5. Given the Commissioner's findings, there was no need for a further hearing on re-employment. There was also no obligation on him to accede to Ms Smith's request, even had he determined to restore the employment relationship. Applications for review under s 181E of the Police Act, like unfair dismissal claims under s 84 of the Industrial Relations Act, are typically listed for a single hearing on both merits and remedy. To accept Ms Smith's submissions would be to invite a practice of conducting separate hearings on merits and remedy, which would result in delays in the conclusion of hearings and detract from the provision of just, cheap and quick resolution of proceedings (see s 56 of the Civil Procedure Act 2005).
6. Ground 4 does not disclose error in the Decision.

Ground 5

1. This ground asserts that the Commissioner erred in determining not to order Ms Smith's reinstatement or re-employment, in the absence of evidence from other officers that they would not or could not work with her.
2. The short answer to this ground, as the Commissioner of Police submitted, is that there did not need to be such evidence. There is nothing in the legislation that requires such evidence prior to a determination as to the impracticability or otherwise of reinstatement or re-employment. Whether such evidence would be relevant to the question will depend on the circumstances of the case.
3. In the present case, Commissioner Muir determined that reinstatement and re-employment were impracticable, having regard to the public interest and the need to maintain the integrity of the NSW Police Force. As the Commissioner of Police submitted, this was a "more fundamental conclusion" than whether Ms Smith could have a harmonious working relationship with other police officers.
4. Ground 5 does not disclose error in the Decision.

Conclusions

1. Ms Smith has not demonstrated appellable error in the Decision. The Application for Leave to Appeal does not raise any matter of such importance that, in the public interest, leave to appeal should be granted.

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: 24 January 2024