Stimson v NSW Police Service

Stimson v NSW Police Service - [2008] NSWIRComm 196 - NSWIRComm 2008 case summary — Zoe

[16]

4.5 A committee comprising a representative of NSW Police, the Association, the NSW Police Ministry and a person agreed between those parties shall determine coverage of such officers in accordance with clauses 7 and 9 in the event of a medical discharge. 3 The Committee referred to in clause 4 considered Mr Stimson's claim, but refused it, having been advised in December 2005 by the then Northern Region Rehabilitation Officer, Mr Hyland, that Mr Stimson had been offered a return to work program, but that he was not on such a program. This advice reflected an understanding that the agreed Return to Work program referred to in clause 4 of the Award, was a program to return to work with the Police Force, not another employer. Even so, no mention was made in this advice of two relevant matters. Firstly, that Mr Stimson had returned to work at the Police Force on 13 and 14 July 2005 under an agreed return to work program. After the failure of that attempt, the return to work program continued and Mr Stimson had participated in a second agreed return to work plan, directed at obtaining employment with another employer in the public sector. He also successfully undertook retraining under that plan. 4 It was the applicant's case that properly understood, clause 4 of the Award contemplated that an 'agreed Return to Work program' could be a program which returned a police officer to work in the Police Force, or with another employer. It was the respondent's case that the program had to be directed to a return to work with the Police Force. 5 There were several other issues lying between the parties. The first, whether or not the Committee referred to in clauses 4.4 and 4.5 of the Award had any role in determining Mr Stimson's eligibility for the benefit which he claimed under the Award, or only a role in determining what that benefit was to be, if he was eligible. The next area of contention was whether or not the Court had any power to make the order sought, given the terms of the Award, having regard to the provisions made in clauses 10.7 and 12, which each contemplated a dispute as to eligibility being resolved by the Industrial Relations Commission of NSW, not the Court and the role of the Committee, as contemplated by clause 4. 6 Mr Stimson had sought to pursue a grievance in accordance with clause 12 of the Award, but it was not dealt with by the Police Force and these enforcement proceedings were brought. 7 One further matter which gave rise to some difficulty and which ought to be given attention by the Award parties and the Industrial Relations Commission, was that the Award refers in clause 9.3 to a police officer receiving rehabilitation/retraining consistent with agreed policies, which are annexed to the Award. The agreed policies referred to in clause 9 of the Award, were not, however, annexed to the Award, as made. They were not even tendered. It was the case for the Police Force, nevertheless, that it was its December 2003 Rehabilitation (Return-to-Work) Policy which was the subject of the Award parties' agreement. For his part, the applicant accepted and relied on that policy. 8 On 15 September 2006, Mr Stimson's employment was terminated by the Police Force, on the basis of a medical discharge. At issue, was whether in the circumstances leading up to his discharge, Mr Stimson's position satisfied the requirements of clause 4.4 of the Award, thereby entitling him to the benefit claimed.

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12 Mr Stimson wanted to pursue his career with the Police Force and tried to do so in accordance with an agreed return to work plan, after 23 June 2005, attending work on 13 and 14 July 2005. This attempt was not successful, given his injuries and so, in accordance with the Police Force's Rehabilitation Policy, a return to work plan with another employer was developed, approved and implemented. Both the Police Force and its insurer approved the second plan and in accordance with the plan, Mr Stimson successfully undertook training at TAFE, which eventually enabled him to secure employment with the Defence Department, for which this training had qualified him. 13 In order for Mr Stimson to accept the probationary employment which he was offered, he sought approval of the Police Force for secondary employment. The policy was not in evidence, but it was common ground that such approval was required to be obtained by a police officer who wanted to take up other employment, while on sick leave. 14 Consistently with the Rehabilitation Policy in evidence, the Police Force ought to have supported Mr Stimson in March 2006, by approving his secondary employment, so that the goal of a timely return to employment could be achieved. At that point, Mr Stimson's medical advice that he was unfit ever to return to work at the Police Force had been accepted by HealthQuest, which had recommended his medical discharge. All that was to be done was for the HealthQuest advice to be formally dealt with by the Police Force, so that his medical discharge could be effected. 15 Ostensibly, the Police Force was supporting Mr Stimson's pursuit of other employment. It ought to have done so practically, given also its Standard Operational Procedures for Injury Management, which were also in evidence. They, too, contemplated that some injured police officers would have to seek suitable employment with other employers. Mr Hyland, as Mr Stimson's Return-to-Work co-ordinator, was obliged to remain involved in the case until the point of return to employment. The Policy also relevantly provided:

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16 On any view, the way in which the Police Force's secondary employment policy was implemented in Mr Stimson's case, coupled with the Police Force's delay in dealing with the HealthQuest November 2005 advice, that Mr Stimson should be medically retired, ought not to have operated so as to frustrate the obligations imposed upon the Police Force in relation to Mr Stimson by the Award and by the provisions of the Workplace Injury Management and Workers Compensation Act 1998. This obliged the Police Force to assist Mr Stimson to return to employment suitable to him, given his injuries. Mr Hyland's explanation that secondary employment was not approved for Mr Stimson, because the job at the Department of Defence was not taken up as a 'work trial', shed no real light on the refusal. The approved Return to Work Plan did not require such a trial, nor did the policy. The aim of the agreed plan was to help Mr Stimson into other employment. That was what he was offered by the Defence Department in March 2006 and what he wished to accept. 17 The Rehabilitation Policy was the mechanism whereby the Police Force sought to meet the obligations imposed upon it by the Workplace Injury Management and Workers Compensation Act. The Policy was also intended to have the force of the Award. The Policy itself acknowledged that 'there is an ethical and moral obligation on NSW Police as an employer to, where practicable, assist an injured employee in returning to pre injury employment or obtain alternative employment'. Regrettably, in the case of Mr Stimson, that obligation was not honoured. There was no evidence from which it could be concluded that it was not practicable for Mr Stimson's request for secondary employment to be approved. 18 When Mr Stimson obtained an offer of probationary employment from the Department of Defence, Hills Street had already ceased providing him with rehabilitation assistance, having come to the view that such assistance was no longer necessary, given his then pursuit of employment, which it was expected that he would achieve without further assistance. That was what Hills Street advised the Police Force and the Insurer, who accepted the advice. The correctness of that view was confirmed when Mr Stimson successfully obtained an offer of suitable employment, shortly afterwards, which he was happy to accept. Mr Stimson still works in that employment today. The Plan entirely achieved its aim and that of the Workplace Injury Management and Workers Compensation Act. 19 In those circumstances, the refusal of approval of secondary employment in May 2006, while HealthQuest's November 2005 advice that Mr Stimson should be medically discharged was processed by the Police Service, is entirely inexplicable. By that stage, all of the medical advice was that Mr Stimson had no prospect of a return to the Police Force; he had accepted that view, albeit reluctantly, so had the Police Force itself, at least so far as Mr Hyland and other officers were concerned. Mr Stimson had been successfully retrained and had received a suitable offer of employment which he wished to accept. 20 While it was Mr Hyland's evidence that he did not himself make the decision to refuse secondary employment, it was a decision plainly made on his advice. The decision maker was not called. The advice was inexplicable, given the circumstances. 21 Indeed, why it was that it still took until September 2006 to process Mr Stimson's medical discharge, is also inexplicable. Had approval been attended to promptly, once HealthQuest's advice had been received in November 2005, there would have been no impediment to Mr Stimson accepting the offer he received in March 2006. In any event, the Police Force should plainly then not have put any impediment in the way of Mr Stimson accepting that position, even though its prolonged medical discharge process was still underway. 22 Mr Stimson successfully completed the probationary period with the Department of Defence and remains in its employment today. On any view, Mr Stimson's return to work plan was entirely successful and should have been supported, if the Police Force was truly to meet its statutory and Award obligations.

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Part D - Disputes, Anti-discrimination, Leave Reserved and Area, Incidence and Duration. 26 This makes clear that the Award is directed to providing rehabilitation and retraining, as well as benefits on medical discharge, for police officers who suffer an injury, including those who are unable to recover sufficiently to permit them to return to any duties in the employment of the Police Force. So much is further confirmed by the Award definitions of 'partial and permanent disability' and 'total and permanent disablement'. 27 Had Mr Stimson suffered his injuries after the making of the Award in December 2005, after 23 June 2005, the date referred to in clause 4.3, instead of in January 2005, there is no question that he would have had an entitlement under the Award, given the provisions of clause 4.3. 28 It was because Mr Stimson, who was injured in January 2005, was not at work on 23 June 2005, albeit employed then, that he fell outside clause 4.3. That date is referred to in the introductory words of the 'Transitional arrangements' provided in clause 4, giving rise to a question as to whether or not Mr Stimson falls within the provision made in clause 4.4. Mr Stimson was then on sick leave. The grounds and reasons given by the Police Force when applying for the making of the Award, indicated that some 89 police officers had not been accepted by the insurer for initial coverage under the Award and that the 'industrial parties recognise that the Award does not extend to long term sick police officers as at 23 June 2005 and are not actively participating in a return to work program'. Mr Stimson was one of these officers. 29 The Award transitional arrangements also recognised, however, the possibility that Mr Stimson could be covered by the Award, if he returned to work after 23 June and participated in an agreed return to work program. That was what he was later expressly advised. 30 On the evidence, there is no doubt that Mr Stimson returned to police work after 23 June 2005, in accordance with an agreed return to work program. In accordance with that program, he performed 'normal duties' on 13 and 14 July, defined in clause 3 definitions of the Award as:

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In cases where a return to pre injury employment is not reasonably practicable, NSW Police will endeavour to provide the injured employee with suitable employment within the Service. Where this option is not reasonably practicable, NSW Police will assist the employee to be vocationally redirected to suitable employment with another employer. Vocational redirection and if necessary the vocational retraining of injured employees will be consistent with the injury management program of the insurer. 34 It is entirely apparent from any fair reading of this Policy, intended to be a part of the Award scheme by express annexure, that it is not concerned only with a return to work with the Police Force, but also contemplates that there will be cases where that is not possible and a return to work in other employment must be pursued by an injured police officer. In Mr Stimson's case, in May 2006, in accordance with the intent of this policy, he returned to work at the Defence Department. 35 On the face of the words used in clause 4 under the heading, Transitional Arrangements, Mr Stimson, unarguably, returned to work after 23 June 2005 and also participated in an agreed return to work program. 36 In the words of clause 4.4, Mr Stimson also 'suffered an on duty injury'; he made 'genuine efforts to comply with an agreed Return to Work program' as Mr Hyland himself reported in 2006, including returning to police work in July according to the plan, which resulted in his unsuccessful attempt to perform police duties on 13 and 14 July. Mr Stimson then made genuine efforts to comply with the second plan, which involved him in retraining and finally succeeded in returning him to work with another employer in March 2006. 37 Mr Stimson plainly participated in an agreed return to work program for a period of over three months of full time service, however such a period is calculated - by calendar or hours worked for such a period, as clause 4 also required. 38 Nevertheless, the Police Force argued that clause 4.4 must be read as having intended to refer only to Return to Work programs leading to a return to work with the Police Force, may not be accepted. I am unable to accept that argument, for the following reasons. 39 Firstly, had such a limitation been intended by the Award parties, they could easily have said so directly in the clause which they drafted. That this was not what they intended, flows not only from the words which they used in clause 4.4 itself, which does not contain such a limitation, but also from the provisions of clause 1 of the Award, to which I earlier referred, which also does not contain such a limitation. To the contrary, it expressly contemplates work elsewhere. This construction also finds support in the Rehabilitation Policy intended to be annexed to the Award, which also expressly contemplates a return to work for some police officers will necessitate employment with another employer, given the nature of their injuries. 40 Finally, the same conclusion is supported by clause 9 of the Award, which obliges police officers to accept suitable police positions which they are offered, with a failure to accept one of three reasonable positions, jeopardising the Award benefits (clause 9.2). Clause 9.3 then expressly contemplates that some police officers may not be able to return to the Police Force, providing:

[86]

9.3.2 If placement in a police position within the NSW Police is not possible and redeployment to an administrative officer position is not agreed to by the officer, the employment of the police officer may be terminated. In such circumstances the police officer, subject to eligibility being established, shall be paid a lump sum payment in accordance with Annexure B to this Award. 41 Clauses 9.5 and 9.6 also expressly contemplate that in some cases, medical discharge must result. It is entirely a part of this Award scheme that a return to work in employment other than with the Police Force, must occur in some cases. Clause 4.4 must be construed consistently with the intent and purpose of the Award as a whole. The words used in clause 4.4 are capable of a construction consistent with that purpose. To read the plain words used thereby implying a limitation which the parties did not expressly agree, would not be consistent with that overall purpose. 42 The only question which remains in relation to the proper construction of clause 4.4 is what the final words in clause 4.4, 'subject to the determination of the Committee referred to in subclause 4.5' mean. 43 Again, I am unable to accept the argument of the Police Force, that this reference to the Committee in clause 4.4, is to give the Committee a discretion to deny eligibility to a police officer who satisfies all of the preceding expressly stated requirements of clause 4.4. Such a construction would give an extraordinary power to the Committee, unconstrained by anything in the Award, which would guide the exercise of such a discretion. The consequences of such a construction must also be considered in determining the proper meaning of the words used. It seems to me entirely unlikely that the parties, having expressly agreed on how a police officer's eligibility under clause 4.4 would be established, intended also to give the Committee an unfettered discretion, to deny such a police officer the entitlement otherwise granted by the Award, to a significant benefit. 44 Also to be considered, is the scheme of the Act, which empowers the Commission under s 10, to make awards 'setting fair and reasonable conditions of employment for employees'. It would seem entirely unlikely that the Commission would be asked to make an award, seemingly so unfair on its face. The construction urged would permit entirely capricious decisions to be made by a Committee which has no obligations even to explain the reasons for its decision. 45 That is a construction which the Court would be slow to accept given that what is at issue is beneficial award provisions, of obvious importance to police officers who are injured in the performance of their duties. Such a provision must be construed beneficially. Another obvious meaning to be given to the words in question, consistent with such a construction, is that the work which they perform is to draw attention to the Committee's role under clause 4.5, in determining what benefit, if any, a police officer is to have, in accordance with clause 9 of the Award. This approach to the construction of clause 4.4 is supported by the mechanism established by clause 9, which is one whereby a police officer who otherwise has eligibility to the benefits of the Award provided by clause 4.4, may lose his or her benefit, as the result of the Committee's decision. 46 Such an outcome particularly flows from the provisions made in clause 9 in relation to the mutual obligation of the police officer and the Police Force, to identify suitable positions for redeployment and the responsibility placed on the officer 'to accept a reasonable offer of a suitable police position made by the employer, which may include transfer to another location' (clause 9.2). A failure to do so may result in the loss of the benefits provided by the Award, in clause 9.3. 47 An award mechanism such as this, whereby a Committee comprising representatives nominated by the Award parties is given the task of determining whether a particular officer and the Police Force have met the obligations imposed upon them by the Award and whether, in the case of a police officer, the officer has failed to adhere to those obligations, with the result that the award benefits are lost, is an understandable and fair mechanism to deal with a potentially contentious issue such as this. 48 I am well satisfied, therefore, that the proper construction of the Award is that the reference to the Committee in clause 4.4, is to draw attention to its function under clauses 4.5 and 9, which may result in the loss of benefits by a police officer who otherwise satisfies the criteria established for eligibility, by clause 4.4. The Committee is given a role in determining what benefits, if any, an officer who satisfies the eligibility criteria established by clause 4.4 is to have, but is not otherwise given a discretion to exclude from eligibility an officer who satisfies the clause 4.4 criteria. 49 This conclusion is reinforced by a further consideration. It was also argued by the Police Force that these proceedings were in effect a nullity. This was because the Committee had made a decision under clause 4.4 that Mr Stimson had no eligibility to the benefits provided by the Award, and that there was no recourse to the Court under the Act in enforcement proceedings such as these, that effectively being an appeal from such a decision. While initially also arguing that there was no appeal of any kind provided for by the Award; and from a decision of the Committee under clause 4.4, it was accepted by the Police Force that there was recourse to the Industrial Relations Commission, in the event of a dispute over a decision of the Committee, in accordance with clause 12 - Grievance Mechanism. As was pointed out for Mr Stimson, clause 10.7 of the Award also provides:

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51 A construction of an award which would avoid the statutory award enforcement scheme established by the Act, is obviously one not lightly to be preferred over a construction which permits employees to exercise enforcement rights which the Legislature sought to grant them. This, too, lends weight to the conclusions which I have otherwise reached. I am satisfied that this Court has jurisdiction to consider the proper interpretation of clause 4.4; to conclude that Mr Stimson was eligible for a benefit under the Award given the proper construction of clause 4.4 and that nothing which he had done disentitled him from receiving that benefit, given the provisions of clause 9. Conclusions 52 The difficulty which has here emerged is that the Police Force has taken a wrong view of the proper construction of the Award. The result was that the Committee was wrongly advised by the Police Force that Mr Stimson had not satisfied the requirements of clause 4.4 of the Award, which made him eligible for Award benefits. Mr Stimson had that entitlement because he had returned to work after 23 June 2005 and participated in a return-to-work program for the requisite period. Even given the construction of the Award on which the Police Force was proceeding, entirely inadequate advice was given to the Committee as to Mr Stimson's participation in a return-to-work program of 23 June 2005. Regrettably, even when Mr Stimson sought to engage the Award dispute resolution mechanism as he was entitled to do, his notification did not result in any proper or timely attention being paid by the Police Force to the issues he sought to raise. That dispute was simply unaddressed in any real or effective sense. 53 The result was that the Committee never gave any consideration as to Mr Stimson's entitlements under clause 9, nor did the Police Force properly assess his award entitlements. On the evidence in these proceedings, Mr Stimson has demonstrated that he met the obligations there imposed upon him, to identify suitable positions in the Police Force; to pursue an agreed return to work plan with the Police Force, he actively performed suitable duties in July 2005 and when that was unsuccessful, given his medical condition, he pursued employment elsewhere in accordance with a second approved return to work plan, devised under his return to work program. That attempt was successful despite the failure of the Police Force to approve his request for secondary employment, as it should have done, given its Legislative and Award obligations, while his medical discharge application was processed. In May 2006, he accepted work with the Department of Defence, where he remains employed. 54 On the evidence nothing which Mr Stimson did disentitled him to any benefits under the Award. Clause 10.7 of the Award expressly contemplates that entitlement to benefits under the Award are to be assessed by the NSW Police. It failed to make that assessment, given its approach to the proper construction of the Award. 55 There was no issue raised by the Police Force as to the proper calculation of the money sum claimed by Mr Stimson, if his argument as to his entitlement under the Award was accepted. 56 What was accepted for Mr Stimson, however, was that because of the Police Force's erroneous view as to the proper operation of the Award, Mr Stimson did not meet the obligations imposed upon him by clause 5 of the Award - to contribute 1.8 per cent of his salary to the NSW Police. This was a contribution he accepted should be attended to. It follows that the parties should be given an opportunity to make the necessary calculations as to what should be paid to Mr Stimson and to agree on the orders which should be made, to reflect the conclusions reached. 57 The matter will be relisted on 10 November 2008. Draft orders should be filed by 4pm, on 7 November 2008 .

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