Trevor Allan Cottle v Commissioner of Police

Industrial Relations Commission (NSW)|2018-10-08

Judgment

This is an application by Trevor Allan Cottle ("the appellant") pursuant to s 187 of the Industrial Relations Act 1996 (NSW) ("the IR Act") for leave to appeal and, if leave is granted, an appeal against the decision of Commissioner Murphy in Trevor Allan Cottle v Commissioner of Police [2017] NSWIRComm 1055 ("the Decision").
In the Decision, the Commissioner dismissed an application brought by the appellant pursuant to s 84 of the IR Act ("the Unfair Dismissal Application") on the basis that the Commission lacked the power to hear and determine the application.
On 3 September 2018, the appellant filed in the Commission an application for a reinstatement order pursuant to s 242 of the Workers Compensation Act 1987 (NSW) ("the Workers Compensation Application"). At the commencement of the hearing of this appeal, the appellant submitted that the Workers Compensation Application and any steps that the appellant may be required to take pursuant to s 90 of the IR Act should await the determination of this appeal. The respondent did not oppose this approach but submitted that the Workers Compensation Application may have a bearing on whether the Full Bench should grant leave to appeal. The Workers Compensation Application was adjourned pending the outcome of this appeal.
The Full Bench heard the submissions of the parties as to both leave and the substantive appeal concurrently.

The Decision

On 3 February 2017, the respondent filed a Notice of Motion seeking: a declaration that the Commission has no jurisdiction over the respondent in respect of the Unfair Dismissal Application; and an order setting aside the Unfair Dismissal Application ("the Jurisdictional Motion"). The Jurisdictional Motion was heard by Commissioner Murphy on 9 June 2017.
On 22 August 2017, the Commissioner noted the Commission did not have power to make the declaration sought by the respondent but upheld the Jurisdictional Motion in part, dismissing the Unfair Dismissal Application for want of jurisdiction.
In support of the Jurisdictional Motion the respondent contended: 1. Where a police officer is removed from their office by an order under section 181D of the Police Act the officer is entitled to a review of that removal by this Commission pursuant to Pt 9, Div. 1C of the Police Act. 2. Following the decision of the High Court in Commissioner of Police v Eaton [2013] HCA 2 ("Eaton") and the decision of the Full Bench of this Commission in McDonald v Commissioner of Police (No.3) NSWIRComm 1049 ("McDonald (No. 3)"), the general unfair dismissal provisions of the IR Act must give way to the specific unfair dismissal provisions applying to sworn police officers in the Police Act. 3. The Police Act and the IR Act must be construed in a way that achieves an harmonious result. The respondent set out in his written submissions how such a construction should be undertaken. This was quoted in the Decision at paragraph [10] and, as this analysis is fundamental to the Respondent's case in this appeal, it is useful to set out this analysis here: 42. The Police Act has the appearance of an exhaustive scheme about the appointment, conduct, discipline and removal of police officers including: (a) the making (Div. 2 of Pt 8A of the Police Act), investigation (Div. 5 of Pt 8A of the Police Act) and the outcome of complaints (Div. 6 of Pt 8A of the Police Act); (b) dealing with misconduct or unsatisfactory performance of a police officer including taking internal reviewable or non-reviewable action (s 173(1) of the Police Act) or removal of a police officer from the NSW Police Force based on the Commissioner's loss of confidence (s 181D of the Police Act); (c) the powers of the Commissioner to terminate those members of the NSW Police Force who are "police officers" (s 80(3) of the Police Act in respect of probationary police officers; s181D of the Police Act in respect of confirmed police officers); (d) the matters that are to be taken into account in exercising those powers (s181D of the Police Act, see also ss 6, 7, and 8(2)); (e) the kinds of termination decisions that are to be subject to review (Div. 1B of Pt 9 of the Police Act) apart from the general processes of judicial review (s 181(7A) of the Police Act); (f) prescribing the procedure that must be followed in making a reviewable order imposing disciplinary sanctions or making an order for removal, by requiring the service of "show cause" notices, by providing an opportunity to submit a written response for consideration and mandating written reasons for making the order (ss 173(5)-173(7); ss 181D(3)-181D(4) of the Police Act); and (g) establishing a specific right to review a decision to impose "reviewable" disciplinary action against (s 174 of the Police Act), or removal of (s 181D of the Police Act), a police officer and preserving explicitly the right to seek administrative law remedies against the Commissioner's decision in the Supreme Court of New South Wales ss 173(10) and 181D(7A) of the Police Act). 43. The exhaustiveness of the Police Act in dealing with the appointment, conduct, discipline and removal of police officers displays an intention that only certain decisions are to be the subject of review, which has the negative force of forbidding review of other decisions. There are a number of propositions that support this conclusion. 44. First, as Parliament has turned its mind to providing specific remedies under section 174 and section 181E of the Police Act. It implies that no similar remedy is available to police officers under Part 6 of Chapter 2 of the Industrial Relations Act. If the Parliament intended police officers would not be treated any differently to any other employee, then there would be no need to establish a special removal review regime under the Police Act. It indicates that Parliament intended the Police Act to embody special provisions to the exclusion of the general provisions of the Industrial Relations Act regarding the statutory remedies available in relation to discipline and dismissal of police officers (Ferdinands at [5]-[11] (per Gleeson CJ) at [39]-[57] (per Gummow and Hayne JJ) cf. Commissioner of Police v Industrial Relations Commission of New South Wales and Sewell [2009] NSWCA 198 at [27]-[28]). 45. Secondly, the Police Act also sets out, both explicitly and implicitly, that a right of review is not available in relation to certain specified employment related decisions made by the Commissioner. For example, there are express provisions which provide that the Commissioner's appointment decisions cannot be challenged (ss 44 and 88 of the Police Act) and the Commissioner may impose non-reviewable action in cases of misconduct or unsatisfactory performance (s 173(1) of the Police Act; see Commissioner of Police v Skelly [2010] NSWIRComm 18 at [24]-[59]). 46. Thirdly, section 84 of the Industrial Relations Act is implicitly excluded because the provision is in terms that are not entirely consistent with section 181E of the Police Act (Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales & Sewell [2009] NSWCA 198 at [38] (per Spiegelman CJ); Eaton at [26]-[30] per Heydon JJ; [76]-[78] per Crennan, Kiefel and Bell JJ). These differences include that: (a) there is a prescribed sequence for the conduct of the review starting with the Commissioner's statement of reasons (s 181F(1) of the IR Act (sic)); (b) the burden of proof (as to "unfairness") is placed squarely on the applicant (even in serious misconduct cases) (s 181F(2) of the IR Act (sic); cf Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at [463]. This significant change as to onus was introduced as a consequence of the Royal Commission into the NSW Police Force; Bigg (1998) 80 IR 434 at 435-436; 448-458; Newton (1998) 85 IR 119 at 120-124 generally; Also Eaton v Industrial Relations Commission of New South Wales [2012] NSWCA 30 at [150]-[151]); (c) the IRC must take into account, inter alia, the public interest in "maintaining the integrity of the NSW Police Force" (s 181F(3) of the Police Act); (d) the IRC does not have jurisdiction to deal with the threatened dismissal of a confirmed police officer (s 181G(1)(d) of the Police Act; cf unfair dismissal applications under 89(7) of the IR Act); (e) there are limits on the ability of the parties to adduce new evidence (ss 181G(1)(f)(ii) and 181G(2) of the Police Act); and (f) the Commissioner and the members of a Commissioner's Advisory Panel are not compellable to give evidence in relation to the exercise of the Commissioner's functions under section 181D, unless the IRC gives leave which can be justifiable only on extraordinary grounds (s 181H of the Police Act). 47. None of the above limitations in the Police Act regime exist in the unfair dismissal regime under Part 6 of Chapter 2 of the Industrial Relations Act. Indeed, as set out above, section 181G makes clear that the Police Act picks up some of the provisions of the Industrial Relations Act and modifies others. 48. In Commissioner of Police v Eaton [2013] HCA 2 (Eaton), the High Court of Australia found that a probationary police officer dismissed under section 80(3) of the Police Act did not have the right to make an unfair dismissal claim under Part 6 of Chapter 2 of the Industrial Relations Act based, in part, on similar considerations (at [26]-[30] per Heydon JJ; [68]-[71] and [76]-[78] per Crennan, Kiefel and Bell JJ). 49. Having regard to its exhaustive nature, the proper construction of the Police Act is that it codifies the rights, powers and remedies available (and not available) regarding termination of appointments of police officers. Put another way, the provisions of the Police Act comprise "affirmative words" that have a "negative force" of forbidding doing anything under the Industrial Relations Act. It follows that the Commission does not have jurisdiction under Part 6 of Chapter 2 of the Industrial Relations Act to hear and determine any claims made by police officers. 50. The statutory history also assists in discerning the intention of Parliament. In inserting Part 9 of the Police Act, critical amendments to the Police Act were made, namely: (a) in November 1996, the Police Legislation Further Amendment Act 1996 (Act No. 108 of 1996) (commenced on 16 December 1996; the IR Act commenced on 13 June 1996) (the 1996 Police Amendment Act) removed, either expressly or by necessary implication, any and all merit review rights that may have previously been available to police officers (see Newton (1998) 85 IR 119 at 120-124; Bigg (1998) 80 IR 434 at 448-458) as a direct response to the interim recommendation of the Wood Royal Commission (Royal Commission into the NSW Police Service Interim Report February 1996 (paras 3.76 - 3.93) and Royal Commission into the NSW Police Service Interim Report November 1996 (paras 2.2 - 8.2 and 16.4 recommendations 5(a) - 5(c); and Newton (1998) 85 IR 119 at 120 - 124); and (b) the Police Service Amendment Act 1997 thereafter introduced the current comprehensive merit review regime contained in Part 9 of the Police Act. 51. Section 72A of the Police Act was inserted by the Police Amendment Act 2007 to align the Police Act more closely with the Public Sector Employment and Management Act 2002 (Legislative Review Committee Digest: Pt 8 Police Amendment Bill 2007). In particular, section 72A was inserted to empower the Commissioner to medically retire police officers, consistently with the medical retirement powers granted to other public service entities pursuant to the Public Sector Employment and Management Act 2002. … 52. At the time that section 72A was introduced, Part 9 of the Police Act was in force, containing the exclusive and self-contained regime through which police officers could seek review of any dismissal. It could be expected that, if the legislature intended to provide an express remedy to police officers that had been medically retired under section 72A, amendments would have been made to Part 9 to provide this Commission with jurisdiction to review such medical retirement decisions. These amendments were not made through the Police Amendment Act 2007, or at any time subsequently. … 55. Put simply, the powers of the Commissioner to terminate the employment of police officers are self-contained within the Police Act. Equally self-contained within the statute are the rights granted to police officers to seek review of any decision to dismiss a police officer. To allow a police officer such as the applicant, who has been medically retired under section 72A, an ability to pursue an unfair dismissal claim under Part 6 of Chapter 2 of the Industrial Relations Act would be to grant such medically retired officers "a right of review superior to that of any police officer" who had been removed by section 181D order of the Commissioner. This would produce remarkable anomalies McDonald (No. 2) at [82]; Eaton at [25] (per Heydon J). 1. A proper construction of the Police Act and the IR Act, on the basis set out above, establishes that sworn police officers are limited to seeking a remedy in respect of an alleged unfair dismissal pursuant to the specific statutory regime applying to them in the Police Act, and to the exclusion of the general provisions in the IR Act. 2. In circumstances where the Applicant is only able to pursue a review by this Commission under the specific statutory scheme in the Police Act that applies to his employment, the Application must be dismissed for want of jurisdiction.
The appellant resisted the Jurisdictional Motion and submitted: 1. The Eaton and McDonald cases are good law for the proposition that the general dismissal provisions such as s 84 of the IR Act must give way to specific provisions such as ss 80(3) and 181D of the Police Act, the applicant's case is different because he was medically discharged. 2. It is clear in the decisions of the majority and of Heydon J in Eaton that the High Court considered that the wording of s 80(3) of the Police Act strongly suggested an unfettered right to dismiss a probationary constable. The High Court held that an implication of inconsistency between s 80(3) of the Police Act and the relevant provision of the IR Act will suffice to oust the application of the relevant provision of the IR Act, such that a finding that an unfair dismissal claim was available under s 84 of the IR Act in those circumstances would be significantly inconsistent. 3. The decision in McDonald (No. 3) turns largely upon rejection of the proposition that a constructive dismissal can exist in the statutory context of the Police Act. To the extent that the Full Bench contemplated that the dismissal might be classified as a dismissal pursuant to s 181D of the Police Act, it was considered that rights pursuant to s 181D of the Police Act were inconsistent with an unfair dismissal claim pursuant to s 84 of the IR Act. McDonald (No. 3) does not contradict the High Court's determination in Eaton that, absent special and inconsistent terms, the provisions of both the IR Act and the Police Act may apply to the circumstances of a police officer. 4. Accepting that a medical discharge of a police officer constitutes a "dismissal", the applicant's case was entirely distinguishable from Eaton and McDonald. A police officer who is dismissed pursuant to s 72A of the Police Act has no recourse to the review procedures in s 181E of the Police Act and there is no other provision in the Police Act by which a dismissal pursuant to s 72A can be challenged. Nor are there any special provisions (such as s 80(3) of the Police Act as applied in Eaton) which signal a legislative intention that there be an unfettered right in the employer to dismiss. 5. There are no special and inconsistent terms associated with the removal from office pursuant to s 72A of the Police Act. There is no inconsistency or difficulty in applying the provisions of Ch 2 Pt 6 of the IR Act to a dismissal pursuant to s 72A of the Police Act.
After setting out the submissions of the appellant and the respondent, including those dealing with construction of the statutory scheme set out at paragraph [10(3)] above, the Commissioner upheld the Jurisdictional Motion stating at [18]-[19]: 18 I do not accept the applicant's submission to the effect that the judgment of the High Court in Eaton and the decisions of this Commission in McDonald (No 2) and McDonald (No 3) are confined to the narrow questions of whether or not a dismissed probationary police officer (as in Eaton) or a police officer who claims to have been constructively dismissed (as in McDonald) is excluded from the general unfair dismissal provisions of the IR Act. The language used in both cases strongly suggests that the provisions of the Police Act constitute an exclusive code which sets out the only manner in which police officers, whose employment with the police force has been terminated pursuant to the provisions of that Act, may seek a remedy in this Commission. 19 This exclusive code does not provide for a "merit review" by this Commission of any such termination, beyond that which is specifically provided for under Divisions 1C and 1D of Part 9 of the Police Act. As a consequence, police officers whose employment with the police force has been terminated otherwise than by way of an order made under section 181D of the Police Act, whether by way of dismissal of a probationary officer; or by way of alleged constructive dismissal; or by way of medical retirement; or by way of any other means, are precluded from seeking a remedy pursuant to the unfair dismissal provisions in Chapter 2, Part 6 of the IR Act.

Leave to appeal

In support of his application that leave to appeal be granted, the appellant submitted: 1. this case involves a matter going to the Commission's jurisdiction, and raises issues of public importance that go beyond the rights and obligations of the litigants to this claim; 2. the issue has not been previously decided by the Commission, and is thus an appropriate case for leave to appeal; 3. the case has application beyond the two litigants in this matter and falls squarely in the category of case where leave to appeal is appropriate as described in Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380 ("Knowles") at 382, in 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"; 4. in accordance with the principles in relation to the grant of leave to appeal summarised in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16, this is an appropriate matter to be determined by a Full Bench; 5. despite the respondent's position that the Decision is consistent with the High Court decisions of Eaton and Ferdinands v Commissioner of Public Employment (2006) 225 CLR 130 ("Ferdinands"), and the decisions of this Commission in McDonald v Commissioner of Police (No. 2) [2016] NSWIRComm 1032 ("McDonald (No. 2)") and McDonald (No. 3), the particular issue in this case has not been dealt with at an appellate level. This case is clearly distinguishable as it involves termination of employment by the respondent for medical grounds pursuant to s 72A of the Police Act, whereas McDonald (No. 2) and McDonald (No. 3) involved a question of whether constructive dismissal could apply under the statutory regime of the Police Act, Eaton involved the termination of employment of a probationary officer under s 80(3) of the Police Act and Ferdinands involved the termination of employment of a police officer who had been convicted of assault in accordance with a statute of a different State, which while similar to the Police Act, is not identical; and 6. the discrete jurisdictional issue raised by this appeal is the very epitome of the type of case that warrants a grant of leave to appeal.
The respondent opposed leave to appeal being granted and made the following submissions: 1. the Full Bench will only intervene to correct error. An appeal on a jurisdictional issue by the appellant does not, of itself, establish a basis upon which leave should be granted. The Full Bench must have regard to the nature of the jurisdictional issue and whether or not there is a demonstrable case that the Commission has exceeded, or failed to exercise, its jurisdiction, including with reference to whether or not the decision below involved a departure from established law or principle; 2. in circumstances where the Decision is consistent with the decisions of the High Court in Eaton and Ferdinands and the decisions of this Commission in McDonald (No. 2) and McDonald (No. 3). the Appellant has not established that there is basis to depart from, or for distinguishing, the established law in this regard; and 3. the appellant has not identified any sufficient reason as to why the appeal is in the public interest.
The respondent also submitted that as the appellant had filed the Workers Compensation Application but had not made an election as to whether to pursue his rights asserted in that application or his rights pursuant to s 84 of the IR Act then "there would be at least some basis for declining the leave if ultimately this appeal would be futile".

Principles governing the grant of leave to appeal

The principles governing the grant of leave to appeal are well established and were set out in the following passage of the Full Bench decision in Jessica Xiao v Industrial Relations Secretary (Department of Justice) [2018] NSWIRComm 1054 ("Xiao"): 7. The principles in relation to the grant of leave to appeal a decision of the Commission were summarised in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16. In that matter the Full Bench stated at [10] and [11]: It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal. The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188(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" (see Knowles at 382) 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: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]. 8. In Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 the Full Bench stated at [12] and [13]: Further, we reiterate the observations of the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392, referring to the then-recently enacted provisions of the Act: "The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State. We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held, immediately before the statement set out above, that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach. Lastly, we add, as the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. This is by no means a new element of the Commission's jurisprudence; it has long been held that an appellate body in an appeal of this nature will only substitute its own judgment where the first-instance decision maker has fallen into error of law, or made a finding of relevant determinative fact that is demonstrably wrong: Drake Personnel Ltd v Workcover Authority of NSW (1999) 90 IR 432 at 440. There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal. … 10. It is also relevant in the present case that an appeal which lacks wider application than the interests of the parties will not normally be granted leave: Stegbar v Transport Workers' Union [2008] NSWIRComm 104; (2008) 173 IR 350 at 359.
These principles were recently endorsed by the Full Bench in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary for Industrial Relations [2018] NSWIRComm 1061.

Determination of the issue of leave to appeal

We concur with the appellant that despite the respondent's position that the Decision is consistent with the High Court decisions of Eaton and Ferdinands, and the decisions of this Commission in McDonald (No. 2) and McDonald (No. 3), the particular issue of medical retirement which exists in this case has not been dealt with at an appellate level and the appellant has articulated an arguable case as to why it is distinguishable.
The jurisdictional issue raised by this appeal has significant implications for this area of the Commission's jurisdiction given the appeal raises questions about the relationship between the IR Act and the Police Act, the resolution of which will affect the rights to unfair dismissal remedies for medically retired police officers - a not uncommon occurrence.
We note that s 72A of the Police Act was repealed in October 2017. Section 50 was also repealed. The former section related to non-executive police officers and the latter to executive officers of the Police Force. Both sections were replaced by s 94B which applies to all members of the Police Force. Apart from some minor textual changes to reflect the section's application to both classes of officer the only differences between s 72A and s 94B are the substitution of the word "perform" for the word "discharge" in sub-paragraph (a) and the use of the words "cause the officer to be retired" in lieu of "retire".
We note further the submission of the respondent set out above at [10(3)] but repeated here for convenience that; Section 72A of the Police Act was inserted by the Police Amendment Act 2007 to align the Police Act more closely with the Public Sector Employment and Management Act 2002 (Legislative Review Committee Digest: Pt 8 Police Amendment Bill 2007). In particular, section 72A was inserted to empower the Commissioner to medically retire police officers, consistently with the medical retirement powers granted to other public service entities pursuant to the Public Sector Employment and Management Act 2002.(Emphasis added)
Section 25 of the Public Sector Employment and Management Act 2002 (NSW) was, subject to the changes necessary to reflect the person exercising employer functions, in identical terms to ss 50 and 72A of the Police Act, and s 56 of the Government Sector Employment Act 2013 (NSW) is in relevantly identical terms to s 94B of the Police Act.
The fact that the relevant provisions are almost identical tends to support the idea that the changes summarised in [20] are stylistic rather than matters of substance.
The repeal of the section does not therefore militate against the grant of leave. In view of the continuing relevance of the power under consideration we have used the present tense in relation to s 72A notwithstanding its repeal.
Moreover, the counterpart provisions in the Government Sector Employment Act mean the implications of the decision extend beyond the Police Force.
Where an appeal raises issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application leave to appeal would normally be granted. We see no reason to depart from this approach.
In applying the principles set out at paragraph 16 to the matter currently before the Full Bench, we have decided to grant leave to appeal.
Given our view that this appeal raises issues of principle or law or has wider implications for the jurisprudence of this Commission, we do not consider that the Workers Compensation Application or the appellant's failure to make an election to pursue his rights under that application or pursuant to s 84 of the IR Act prior to the hearing of this appeal is a reason to deny the appellant leave to appeal.

The appeal

The appellant's grounds of appeal are in these terms: 1. The Commission erred in dismissing the applicant's claim for want of jurisdiction. 2. The Commission should have found that there was no inconsistency between the existence of a right of claim pursuant to s 84 of the IR Act and the provisions of the Police Act permitting a dismissal upon medical grounds pursuant to s 72A thereof.

Submissions of the appellant

The appellant's submissions in support of the appeal restated the appellant's submissions in the Jurisdictional Motion as set out at paragraph 11 above, and expanded on these in respect of the Decision as set out below: 1. The Commissioner should have found there was no inconsistency between the existence of a right of claim pursuant to s 84 of the IR Act and the provisions of the Police Act permitting a dismissal pursuant to s 72A thereof. 2. The essence of the Commissioner's decision was that by application of Eaton and McDonald (No. 3) the general unfair dismissal provisions of the IR Act must give way to the specific unfair dismissal provisions applying to sworn police officers under the Police Act. 3. While Eaton and McDonald (No. 3) support the proposition at sub-paragraph [(2)] above, the appellant's case is fundamentally different because he was medically discharged and the facts in this case are distinguishable from Eaton and McDonald (No. 3). 4. The Commissioner incorrectly rejected the appellant's submission that the High Court in Eaton and the Commission in McDonald (No. 3) are confined to the narrow questions of whether or not a dismissed probationary police officer (in Eaton) or a police officer who claims to have been constructively dismissed (in McDonald (No. 3)) are excluded from the general unfair dismissal provisions of the IR Act. 5. The Decision goes well beyond the propositions that emerge from the decisions in Eaton and McDonald (No. 3) and ignores the work which the High Court determined s 218 of the Police Act had to do. That section provides: 218 Industrial Relations Act 1996 not affected (1) The Industrial Relations Act 1996 is not affected by anything in this Act. (2) Subsection (1) does not limit section 44 of 89 or any provision of the Industrial Relations Act 1996. 1. The High Court in Eaton determined that an implication of inconsistency between the specific provisions of the Police Act and the general provisions of the IR Act suffices to oust the application of the general provisions of the IR Act. This implied inconsistency existed in the circumstances in Eaton because the wording of s 80(3) of the Police Act strongly suggested an unfettered right to dismiss a probationary constable, such that s 218 of the Police Act does not operate in its terms. The High Court in Eaton also stated: 90… Thus if the general jurisdiction of the IR Act is recognised by s 218, it is withdrawn by s 80(3) insofar as decisions under that provision are concerned. 91 The conclusion reached by the Full Bench is, with respect, correct. The Full Bench construed s 218 as leaving intact the power of the IR Commission to deal with industrial matters concerning police officers, unless especially restricted by a provision of the Police Act. 1. At no point in Eaton was it suggested that the Police Act constitutes an "exclusive code" for all dismissal cases brought by former police officers. The Decision pays no regard for the High Court's acceptance, as set out above, that s 218 of the Police Act must be construed as "… leaving intact the power of the IR Commission to deal with industrial matters concerning police officers, unless especially restricted by a provision of the Police Act." 2. The conclusion of the High Court was to the effect that the general provisions of the IR Act will apply to police officers unless they fly in the face of the special, and inconsistent, terms such as those in s 80(3) of the Police Act. This is consistent with the position of the Appellant. There are no special and inconsistent terms associated with the removal from office pursuant to s 72A of the Police Act. There is no inconsistency or difficulty in applying the provisions of Ch 2 Pt 6 of the IR Act to a dismissal pursuant to s 72A of the Police Act. 3. The appellant's case is distinguishable from Eaton. A police officer who is dismissed pursuant to s 72A of the Police Act has no recourse to the review procedures in s 181E of the Police Act and there is no other provision in the Police Act by which a dismissal pursuant to s 72A can be challenged. Nor are there any special provisions (such as s 80(3) of the Police Act) which signal a legislative intention that there be an unfettered right in the employer to dismiss. 4. It would arguably be anomalous if an officer dismissed under s 181D of the Police Act was entitled to a merits review but an officer dismissed pursuant to s 72A did not. Where the Police Act makes no provision for merits review of a dismissal pursuant to s 72A of the Police Act, nor contains any provisions that are inconsistent with such a right existing, it is appropriate to infer that claims under s 84 of the IR Act remain available. 5. McDonald (No. 3) turns largely on the rejection that a constructive dismissal can exist in the context of the statutory scheme. To the extent that the Full Bench contemplated that the relevant dismissal might be classified as a dismissal pursuant to s 181D of the Police Act, they considered that rights under s 181E were inconsistent with the availability of a claim pursuant to s 84 of the IR Act. McDonald (No. 3) does not contradict the High Court's determination in Eaton that absent special and inconsistent terms, the provisions of both the IR Act and the Police Act may apply to the presenting circumstances of a police officer. 6. There is no inconsistency or difficulty in applying the provisions of Ch 2 Pt 6 of the IR Act to a dismissal pursuant to s 72A of the Police Act. The respondent's motion should have been dismissed.

Respondent's submissions

In response to Ground 1 of the appeal, the respondent relied on his written submissions filed in support of the Jurisdictional Motion. These submissions are summarised above at [11].
In response to the second ground of the appeal, that the Commission should have found that there was no inconsistency between the existence of a right of claim pursuant to s 84 of the IR Act for unfair dismissal and the provisions of the Police Act permitting a dismissal on medical grounds pursuant to s 72A, and the appellant's submissions supporting this contention, the respondent submitted there was no error in the Commissioner's finding.
The respondent submitted that the Decision was consistent with authorities and with a proper construction of the Police Act and the IR Act, in particular ss 72A and 218 of the Police Act, and whether those provisions can be read harmoniously with a remedy under Pt 6 of Ch 2 of the IR Act. The respondent relied on his submissions in the Jurisdictional Motion as set out above at [10(3)], which, he submitted, established a statutory intention to exclude the operation of Pt 6 of Ch 2 of the IR Act in relation to police officers.
The respondent submitted that the Commission has found on numerous occasions, based on the approach taken by the High Court in Ferdinands and Eaton, that Parliament had enacted a special exclusive regime concerning the dismissal of police officers and their rights and remedies upon removal. The authorities stand for the broad proposition which was accepted by the Commissioner in the Decision that the Police Act contains an exhaustive and exclusive regime dealing with appointment, discipline and dismissal of police officers, which applies to the complete exclusion of the unfair dismissal regime in the IR Act.
The respondent contended that there are at least five factors which demonstrate that Pt 9 of the Police Act operates to displace any entitlement of a police officer to make an application under Pt 6 of Ch 2 of the IR Act: 1. the nature of police work and, in particular, the provisions of the Police Act regulating this work; 2. the appearance of exhaustiveness in the Police Act in dealing with all the matters or issues relating to the employment of police officers, in particular the control, management, discipline and appointment of police officers; 3. the existence of the elaborate system of merits review relating to various decisions made by the Commissioner of Police including: promotion, disciplinary matters that give rise to reviewable action under Pt 9 Div. 1 of the Police Act, removals of police officers under s 181D and review mechanisms under s 181D; and a conscious decision not to provide any remedies relating to: the particular decision, non-reviewable action, dismissal of probationary officers under s 80(3) and in circumstances where the privative provisions under the Police Act apply; 4. the Police Act must be given a practicable, practical, intelligible and coherent operation having regard to the following: the circumstances in which a police officer may cease employment under s 72A of the Police Act, the matters which inform the Commissioner of Police's exercise of powers, the kind of matter which can be the subject of the merits review, and the manner in which those decisions are amenable to review under the merits review provisions contained in Pt 9 of the Police Act; and 5. the statutory history of the Police Act, which is recited in detail in McDonald (No 2), including the fact that Pt 9 of the Police Act was inserted following a number of recommendations made by the Wood Royal Commission to address particular mischief and that historically police officers have had their own special regime dealing with rights and remedies arising out of the discipline and termination of employment of police officers, or termination and appointment of police officers.
The result, the respondent submitted, is that Pt 9, Div. 1C of the Police Act contains the sole basis upon which a police officer could make a claim in challenging his or her dismissal. To allow a medically retired police officer to make an application for an unfair dismissal remedy under the IR Act would be anomalous, as the result would be that a police officer who was medically retired under s 72A of the Police Act would be placed in a better position to claim relief than an officer who had been removed pursuant to s 181D of the Police Act or who is removed, or whose position becomes vacant, for any other reason.
The respondent denied that the appellant's case was fundamentally different from Eaton and McDonald because the appellant was medically discharged. The cumulative effect of Ferdinands, Eaton, McDonald (No. 2) and McDonald (No. 3) is that these authorities establish that the Police Act contains exhaustive mechanisms for the dismissal of police officers and a comprehensive scheme for any review of those mechanisms. Where a police officer is removed under a mechanism provided in the Police Act, regardless of the reason for the removal, the only statutory rights of review or remedies available to that police officer are as set out in the Police Act.
The respondent submitted that, although the appellant sought to distinguish the circumstances of his case from those in Eaton and McDonald on the basis that s 72A of the Police Act is not a special and inconsistent term as contemplated by the High Court in Eaton of s 80(3) of the Police Act, the appellant did not contest that s 72A of the Police Act confers on the respondent a power to terminate the appointment of a police officer at the respondent's initiative upon satisfaction of the relevant statutory conditions. The outcome of the exercise of that power is a termination of employment at the initiative of the respondent. This involves a dismissal for the purposes of s 83(5)(b) of the IR Act.
In his oral submissions, the respondent's counsel noted that s 72A of the Police Act operates on the satisfaction of a number of statutory preconditions, and it is only in circumstances where the respondent is satisfied, or it is objectively demonstrated, that those statutory preconditions have been met, that it enlivens the respondent's discretion to retire a police officer from his or her office.
Counsel for the respondent submitted that this was important because the respondent is not given an unfettered discretion to remove a police officer.
The respondent submitted that the appellant misconstrued Eaton regarding s 218 of the Police Act. On the respondent's analysis of Eaton, the High Court held that even though s 218 seeks to define the relationship between the Police Act and the IR Act, s 218 could not, and did not, have a literal operation, as there were numerous examples where the Police Act had a direct impact on the operation on the IR Act. On a proper construction, according to the respondent, s 218 leaves the Commission's power intact only to deal with industrial matters concerning police officers unless otherwise expressly restricted by a provision of the Police Act. The respondent submitted that it is plain on the authorities that medical retirement is not an industrial matter left intact because it is expressly restricted by other provisions of the Police Act which provide an exclusive and exhaustive code for the dismissal of police officers and the mechanisms for review available for challenging such decisions.
In addressing what would be "industrial matters left intact" in oral submissions, counsel for the respondent stated: …. so quite plainly s 85 [of the Police Act] contemplates that the Commissioner will be an employer for the purposes of certain industrial matters, and industrial matters obviously, has a meaning contained in I think s 6 or s 7 of the Industrial Relations Act. Those matters I want to suggest are matters which relate to things which can be contained in an award or an enterprise agreement, could otherwise be the subject of an industrial dispute, but what is especially restricted, and I will come back to this shortly, are matters concerning the dismissal of a police officer. So much is apparent when one reads ss 86‑87, which refer to the Commissioner's power to determine salary or wages and in particular enter into agreements with an association/organisation representing a group or class of non‑excessive officers, in this case the Police Association of NSW, with respect to industrial matters.
The respondent submitted that when s 72A of the Police Act was introduced, Pt 9 of the Police Act was in force, containing the exclusive and exhaustive regime under which police officers could seek review of any dismissal. If Parliament intended to provide an express remedy to police officers medically retired under s 72A one would have assumed that such amendments would have been made to Pt 9 to provide the Commission with jurisdiction to review such medical retirement decisions. These amendments were not made under the Police Amendment Act 2007 (NSW), or at any time subsequently.
The respondent also submitted that, on the same grounds as McDonald (No. 2), the conclusion that a police officer retired on medical grounds cannot seek redress pursuant to Pt 6 of Ch 2 of the IR Act does not allow the respondent to exercise his discretion under s 72A in an arbitrary, capricious or unreasonable way. An aggrieved officer retired on medical grounds may seek judicial review from the Supreme Court, should he or she contend that the decision of the Commissioner of Police to exercise the discretion under s 72A was affected by legal error.

Appellant's submissions in reply

In reply, the appellant rejected the respondent's submission that the Police Act contains an exhaustive and exclusive regime dealing with the appointment, discipline and dismissal of police officers.
The appellant reasserted that this submission is not supported by the relevant authorities, referring again to the High Court's approval in Eaton (at [91]) of the construction given to s 218 of the Police Act by the Full Bench in Commissioner of Police v Eaton [2011] NSWIRComm 51 (at [63]) as leaving intact the power of the Commission to deal with industrial matters concerning police officers, unless especially restricted by a provision of the Police Act.
The appellant refuted that the interpretation of the legislation proffered by the appellant would create an anomaly, in that it would put a police officer terminated pursuant to s 72A of the Police Act in a better position than one terminated pursuant to s 181D. The appellant asserted that s 84 of the IR Act and s 181D of the Police Act provide a very similar remedy, allowing a merits review on the grounds that the termination was harsh, unreasonable or unjust. It would arguably be anomalous if an officer dismissed under s 181D of the Police Act had a merits review but an officer dismissed pursuant to s 72A of the Police Act did not.
The appellant asserted that there is a lacuna in the Police Act whereby the Act provides no remedy for a police officer to challenge the fairness or merits of a dismissal pursuant to s 72A and suggested a reason for this lacuna is apparent from the curious language used by s 72A which permits the Commissioner of Police to "… cause the officer to be retired". Notwithstanding that language, it has since been established that an officer who has been "retired" in this compulsory manner has in fact been dismissed (see Robinson v Commissioner of Police [2014] NSWIRComm 35 ("Robinson (No. 3)")). This may help explain the question posed by the respondent at [28] of its submissions, which question why Parliament inserted s 72A into the Police Act by amendment in 2007, without inserting a right to seek a review of any such dismissal, as it was not immediately contemplated that that would be a type of dismissal that would need to be linked with s 181E of the Police Act.

Consideration

In the Decision, the Commissioner set out (at [17]) an extract from McDonald (No. 3) ([74]-[80]) which contained consideration of the High Court decisions, Ferdinands and Eaton, and the following conclusion of the Full Bench: 80 As to the appellant's submission concerning s.218 of the Police Act, that section is a savings provision and does not, contrary to the appellant's submission, operate to preserve the provisions of Ch 2 Pt 6 of the Act. Squarely put, the legislative intention of Pt 9 of the Police Act was to displace the operation of Ch 2 Pt 6 of the Act in relation to police officers. (Emphasis added)
The Commissioner engaged in the process of trying to harmoniously construe the two Acts and with the question of whether the facts in the appellant's case are entirely distinguishable from Eaton and McDonald. However, it is apparent that regardless of whether the dismissal was effected pursuant to s 80(3) of the Police Act, was a purported constructive dismissal or was effected pursuant to s 72A of the Police Act, the Commissioner considered he was bound by the Full Bench authority of McDonald (No. 3) to determine that there was a legislative intention to displace the operation of Ch 2 Pt 6 of the IR Act in relation to police officers by Pt 9 of the Police Act. The Commissioner's determination that the Police Act represents an "exclusive code" as set out at [18] - [19] of the Decision and at [12] above is consistent with this.

Is Eaton authority for the proposition that the Police Act constitutes an exclusive code?

The appellant contends that the characterisation by the Commissioner of the cumulative findings of the High Court in Ferdinands and Eaton and the Full Bench in McDonald (No. 3) as providing "an exclusive code" in relation to the termination of employment of police officers is a misunderstanding of the High Court's reasoning in Eaton.
As outlined in detail above, the appellant further contends that this misunderstanding resulted in the Commissioner ignoring: 1. the High Court's construction of s 218 of the Police Act, which left "intact the power of the IR Commission to deal with industrial matters concerning police officers, unless especially restricted by a provision of the Police Act" (Eaton at [91]); and 2. that the implied inconsistency arose in Eaton because the wording of s 80(3) of the Police Act strongly suggested an unfettered right to dismiss a probationary constable, such that s 218 does not operate in its terms; whereas there are no such inconsistent terms in s 72A of the Police Act.
In order for the Full Bench to determine whether the appellant is correct in his primary contention, and whether the Commissioner ignored the work that s 218 of the Police Act has to do, we examine firstly the reasoning of his Honour Justice Heydon in Eaton and then the reasoning of the plurality, their Honours Justices Crennan, Kiefel and Bell, in that case.
Justice Heydon's decision in Eaton, on its own, is not authority for the proposition that the Police Act is an exclusive or exhaustive code. His Honour gave four reasons for his decision that "there is no jurisdiction in the Commission under s 84(1) of the IR Act to hear applications by persons dismissed under s 80(3) of the Police Act" (at [10]): 1. the terms or language of s 80(3) of the Police Act which points against the conferral of any jurisdiction on the Commission, his Honour highlighting the terms "at any time", "without giving any reason" and "probationary" (at [11]-[18]); 2. the remedies available under s 89 of the IR Act (at [19]-[21]; 3. the generality of s. 84(1) of the IR Act compared with the particularity of s 80(3) of the Police Act; and 4. the Commissioner's powers under s 80(3) of the Police Act compared with his powers under s 181D of the Police Act.
Neither is the decision of the plurality in Eaton authority for the proposition that the Police Act is an exclusive code.
The plurality accepted that the IR Act is a general statute applying to industrial relations and that the earlier Act, the Police Act, is concerned with the NSW Police Force. Their Honours considered how they should determine the parliamentary intention in respect of the relationship between the two related statutes, citing (at [45]) Lord Wilberforce in Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 (at 553): The problem is one of ascertaining the legislative intention: is it to leave the earlier statute intact, with autonomous application to its own subject matter; is it to override the earlier statute in case of any inconsistency between the two; is it to add an additional layer of legislation on top of the pre-existing legislation, so that each may operate within its respective field?
Having noted that in Eaton v Industrial Relations Commission of New South Wales [2012] NSWCA 30, the Court of Appeal had found that Pt 6 of the IR Act added another layer of legislation to the Police Act (Eaton at [45]) their Honours then stated at [46]: That [legislative] intention is to be extracted "from all available indications" (Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 (at 553-554)).
They also noted that the relevant South Australian legislation in Ferdinands, which did not include a medical retirement clause, differed from the Police Act and stated at [47]-[48]: 47 In Ferdinands …, an indication of legislative intention was present in the extent to which the Police Act 1998 (SA) dealt with the topic of dismissal. That Act dealt exhaustively with the dismissal of police officers and therefore impliedly repealed the earlier Industrial and Employee Relations Act 1994 (SA). The legislation in Ferdinands differs from that presently under consideration. Nevertheless, statements respecting statutory construction made in that case are relevant to this appeal. 48 In Ferdinands, Gummow and Hayne JJ pointed out that inconsistency was at the root of the principle of implied repeal (at 137-138 [18]) ... However, as their Honours observed, the law presumes that statutes do not contradict one another. The question is not whether one law prevails, but whether that presumption is displaced (at 146 [49]). Their Honours considered that the two statutes in question in that case could be accommodated by reading into the Industrial and Employee Relations Act 1994 the matters that the Police Commissioner of the South Australian Police would take into account in exercising the power of dismissal; but there were other features of the statutes which were also important (at 148 [54]-[55]). Their Honours said that deciding whether the two statutes could not "stand or live together" in the relevant respect "requires the construction of, and close attention to, the particular provisions in question" (at 138 [18]). (Emphasis added)
The plurality then considered the structure and operation of the Police Act (at [51] - [60]) including: 1. the establishment and composition of the NSW Police Force (at [51]); 2. the responsibility of the respondent for the management and control of the NSW Police Force, subject to the direction of the relevant Minister (at [51]); 3. probationary constables (at [52]); 4. the confirmation of appointment as a constable under the Police Regulation 2008, including the requirement for a satisfactory fitness test (at [53]); 5. subject to procedural fairness, the Commissioner may dismiss a probationary police constable at any time and without giving any reason (at [53]-[54]); 6. executive officers of the Police Force are not subject to the application of Pt 6 of the IR Act (at [55]); 7. Pt 9 of the Police Act does not apply to probationary constables; thus the only statutory right of review which might apply to their termination pursuant to s 80(3) of the Police Act is Pt 6 of the IR Act (at [56]); 8. an order made pursuant to s 181D(1) removing a confirmed police officer from the Police Force must set out the reasons for removal. An officer removed pursuant to s 181D(1) may apply for a review by this Commission pursuant to s 181E(1) of the Police Act and the provisions of these reasons are in aid of such a review (at [57]); 9. the respondent may take action other than dismissal with respect to a police officer's misconduct or unsatisfactory performance and certain of these actions are reviewable by this Commission (at [58]); and 10. a review pursuant to s 181E(1) is subject to detailed self-contained provisions in Div. 1C of Pt 9 of the Police Act; the "Police Act makes it clear that the IR Act does not apply to these applications; and except as provided by Div. 1C no tribunal has jurisdiction to review a decision of the respondent under s 181D" (at [59]).
Next considered was Pt 6 of the IR Act (at [61]-[65]) including: 1. s 83(1)(a) of the IR Act is apt to apply to police officers (at [61]); 2. probationary constables are not excluded by the regulations made under the IR Act (at [62]); 3. on an application under s 84(1) this Commission may make an order for reinstatement, re-employment, remuneration or compensation if it is satisfied that the dismissal was harsh, unjust or unreasonable. In making this determination the Commission may have regard to whether the employer acted reasonably. Enquiry into the reasonableness of the conduct of an employer might not be thought suitable to a decision of the Commissioner to dismiss a police officer on the basis of misconduct. Further, the relief which may be provided by the Commission is at odds with the right of the Commissioner under s 80(3) to dismiss (at [63]); 4. in determining an unfair dismissal matter the Commission may consider whether a reason for dismissal or a warning regarding unsatisfactory performance were given or whether the applicant requested reinstatement. Section 80(3) of the Police Act does not require reasons, a warning may not be practicable where issues of integrity of a police officer are involved and s 80(3) would not permit reinstatement. These distinctions highlight that the unfair dismissal regime of the IR Act was not framed with something like the Police Force in mind and raise the question of how the Commission would approach the task of reviewing a dismissal by the respondent under s 80(3) of the Police Act (at [64]-[65]).
The plurality considered the means by which claims of unfair dismissal are to be determined by the Commission in accordance with the provisions of Div. 1C of Pt 9 of the Police Act (Eaton at [66]-[71]).
They then considered the terms of s 80(3) of the Police Act in the context of a probationary constable and the responsibilities vested in the Commissioner and stated: 74 The terms of s 80(3), as the Commissioner argues, are strongly suggestive of an unfettered power to dismiss. The fact that the Commissioner is not obliged to give any reasons, whilst not conclusive of an intention that there be no merits review of a decision to dismiss, implies an unfettered power. It stands in contrast with the requirement for reasons, imposed by Pt 9 of the Police Act, where a confirmed police officer is dismissed. 75 The lack of a requirement for reasons also points to some incoherence with the provisions of Pt 6 of the IR Act concerning the matters to be taken into account by the IR Commission in determining whether a dismissal is harsh, unreasonable or unjust. The terms of s 80(3) suggest that such considerations are not to be in question. The intended legal effect of the Commissioner not being required to give reasons is that the Commissioner's decision cannot be impugned on account of any particular reason. 76 The regime provided for in Pt 9 of the Police Act for the claims of confirmed police officers evidences a concern that the processes of Pt 6 of the IR Act are not in all respects appropriate to be applied to decisions of the Commissioner to dismiss or make other like orders. Part 9 maintains a focus on the Commissioner's decision [and] elevates the Commissioner's decision to one of public interest, in the context of the maintenance of the integrity and discipline of the NSW Police Force. The placing of the burden of proof upon the police officer dismissed is consistent with the weight to be given to the Commissioner's decision, as is the provision which prevents a review of that decision by reference to additional material. 77 These … matters … raise important questions concerning the interaction between Pt 6 of the IR Act and the Police Act and as to the internal consistency of the Police Act. If Pt 6 applied to probationary constables, confirmed police officers' claims of unfair dismissal would be dealt with under the particular provisions of Pt 9 of the Police Act, while probationary constables' claims would be dealt with under the general provisions of the IR Act, which were not considered by the legislature in enacting the Police Act to be suited to the same topic. An anomalous position would result whereby probationary constables would enjoy greater procedural rights than confirmed police officers, as the Full Bench correctly observed. 78 …[T]he Police Act should be construed in a way which best achieves a harmonious result (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [70]). The same principle of consistency informs the construction of two statutes which may share a field of operation. 79 It was pointed out by the Court of Appeal that s 80(3) could have been excluded by a regulation made under s 83(2) of the IR Act, and that the Parliament had given its attention to the relationship between the Police Act and the IR Act (or its predecessors) in successive industrial relations statutes without expressly excluding probationary constables from the unfair dismissal regime in the industrial relations statutes. Provision could also have been made in the Police Act to exclude probationary constables from the operation of Pt 6 of the IR Act, as was done with respect to executive officers. So much may be accepted. It may be that a conscious decision was made not to exclude probationary constables, as the reasons of the Court of Appeal imply. It may also be observed that the terms of s 80(3) have never been substantively altered. They may have been thought to be a sufficient indicator that review by the IR Commission was not intended. These are matters of speculation. No proper inferences helpful to the process of construction are available.
Their Honours continued (at [90]): [90] The provisions of Pt 9 of the Police Act provide an example of inconsistency with provisions of the IR Act relating to unfair dismissal. The level of inconsistency is such that s 218(1) does not operate in its terms. Section 80(3) is impliedly inconsistent with s 218. It conveys more than that the Commissioner may dismiss without giving reasons. It implies an unfettered power and therefore that the decision is not to be subjected to a review on the merits… Thus if the general jurisdiction of the IR Act is recognised by s 218, it is withdrawn by s 80(3) (Public Service Association of New South Wales v Industrial Commission of New South Wales (1985) 1 NSWLR 627 at 635) insofar as decisions under that provision are concerned. [91] The conclusion reached by the Full Bench is, with respect, correct. The Full Bench construed s 218 as leaving intact the power of the IR Commission to deal with industrial matters concerning police officers, unless especially restricted by a provision of the Police Act (Commissioner of Police v Eaton (2011) 207 IR 209 at 226 [63]). [92] The IR Act may apply generally to the Police Act, but not where the operation of the former produces an internal inconsistency in the latter. Such an effect, which would be reached if a decision under s 80(3) of the Police Act were subject to review under Pt 6 of the IR Act, cannot be taken as intended. The Conclusion reached concerning the non-application of Pt 6 of the IR Act to a decision made under s 80(3) may further be tested by reference to s 218 of the Police Act and the rule of construction mentioned at the outset of these reasons. In each case, the general provisions do not apply in the face of the special, and inconsistent, terms of s 80(3) of the Police Act.
It is clear that the High Court in Eaton considered that the terms of s 80(3) were the key to the question of implied inconsistency in the case before it. We agree with the appellant that Eaton is not authority for the proposition that the Police Act is an exclusive or exhaustive code applying to the dismissal of police officers. It is also evident that the High Court in Eaton did not determine that the Police Act impliedly repealed the IR Act, as in the South Australian case of Ferdinands.
Contrary to the conclusions of the Commissioner at [18] of the Decision, the language of the judgments in Eaton does not point to such conclusions. The recognition of the operation of s 218 of the Police Act required an analysis of s 80(3) to discern whether there was such inconsistency between it and Pt 6 of Ch 2 of the IR Act as to exclude application of the latter in respect of the dismissal of probationary police officers.

Is there a statutory intention to exclude the operation of Part 6 of Chapter 2 of the IR Act in relation to the dismissal of police officers generally?

We have concluded that Eaton is not authority for the proposition that the Police Act is an "exclusive code". However, the question arises whether it remains open to the Commission itself to determine that, on a proper and harmonious construction of the statutory schemes of the Police Act and the IR Act, there is a statutory intention to exclude the operation of Pt 6 of Ch 2 of the IR Act in relation to police officers. The Full Bench appears to accept, in obiter comments in McDonald (No. 3) (see [80] quoted at [49] above), that this is the case.
In McDonald (No. 3) the Full Bench decided that there was no constructive dismissal because there was no dismissal of any kind. There were two principal reasons for that conclusion. First, the Full Bench concluded, at [80]-[83], that Mr McDonald had resigned and there was no challenge to the validity of the resignation process. (We observe that conclusion alone was sufficient to determine the case against the appellant.) Second, at [84]-[90] the Full Bench held that a constructive dismissal cannot exist in the context of the statutory scheme. The Full Bench noted at [88] that there was no suggestion in that case that the applicant had been constructively "removed", and observed, again in obiter comment, that "removal" could not be effected constructively. We observe that even if the relevant dismissal might be classified as a removal pursuant to s 181D of the Police Act, the remedy would be under s 181E and not pursuant to s 84 of the IR Act.
McDonald (No. 3) does not contradict the High Court's determination in Eaton that absent special and inconsistent terms, the provisions of both the IR Act and the Police Act may apply to the presenting circumstances of a police officer. Rather it, albeit in the context of obiter, suggests that the principle may be taken further. However, in this context we are not bound by McDonald (No. 3) to accept the proposition that the legislative intention of Pt 9 of the Police Act was to displace the operation of Ch 2 of Pt 6 of the IR Act in respect of any and all dismissals of police officers.
The respondent asserts that the Police Act has the appearance of an exhaustive scheme (see [10] above), and that this exhaustive scheme "displays an intention that only certain decisions are to be the subject of review, which has the negative force of forbidding review of other decisions". The respondent asserts this applies to all dismissals of police officers by him.
It may be acknowledged that there are certain provisions of the Police Act, such as Pt 9, which clearly modify and restrict the operation of the IR Act. Other provisions, such as s 80(3), evidence an intention to do likewise without specific words of limitation or modification. The existence of s 218 of the Police Act and s 405 of the IR Act militate against the concept of an exclusive or exhaustive scheme.
The High Court's construction of s 218 of the Police Act in Eaton, as we have noted, left "intact the power of the IR Commission to deal with industrial matters concerning police officers, unless especially restricted by a provision of the Police Act."
Thus the conclusion of the High Court was to the effect that the general provisions of the IR Act will apply to police officers unless they fly in the face of special, and inconsistent, terms such as those in s 80(3) or Pt 9 of the Police Act. In our view Eaton is authority for the proposition that the Police Act is not an exclusive code. An obvious point is that none of the members of the majority in Eaton determined the case on that basis. Were the proposition accepted there would have been no need to undertake the textual analysis of the compatibility and consistency, internal and external, of the various statutory provisions. More specifically the judgments of the plurality and Gageler J specifically reject the proposition in recognising the effect of s 218 of the Police Act (the plurality at [43] and [91] and Gageler J at [104]).
However, the respondent sought to limit the continued application of the IR Act to "industrial matters" other than dismissals. We do not agree that this correctly reflects the High Court's interpretation of s 218 of the Police Act in Eaton. Again, were that so, there would have been no need for the quest for the harmonious construction of s 80(3) of the Police Act and Pt 6 of Ch 2 of the IR Act.
Specifically in relation to the respondent's submission that "industrial matters" "are matters which relate to things which can be contained in an award or an enterprise agreement, could otherwise be the subject of an industrial dispute" (see [42] above) we note the definition of "industrial matters" in very broad terms in s 6(1) of the IR Act and s 6(2) lists examples of such matters and includes: (2) Examples Examples of industrial matters are as follows: … (e) the termination of employment of (or the refusal to employ) any person or class of persons in any industry, …
The term "industry" is also broadly defined in s 7 of the IR Act. In these circumstances there is no warrant to read down the term "industrial matters" as it appears in s 218 of the Police Act to exclude dismissals absent an "express" contrary provision as explained in Eaton.
Further, it was accepted at the hearing of the appeal that there are mechanisms by which a police officer whose employment has been terminated pursuant to the provisions of the Police Act may seek a remedy in this Commission, for example pursuant to s 242 of the Workers Compensation Act 1987, and s 210 of the IR Act. There are also other jurisdictions, such as administrative review or declaratory relief from the Supreme Court as acknowledged in the Decision, and discrimination law, under which a former police officer may seek redress for the termination of his or her employment. The availability of these remedies also suggests that the provisions of the Police Act do not constitute an "exclusive" or "exhaustive" code or "self-contained" scheme.
Given the High Court's construction of s 218 of the Police Act, we do not consider that there is "such contrariety in the two legislative schemes that, by necessary implication" the Police Act excludes the operation of the IR Act in respect of the dismissal of police officers generally (cf Ferdinands per Gleeson CJ at [11]).

Is there a statutory intention to exclude the operation of Part 6 of Chapter 2 of the IR Act in relation to police officers medically retired pursuant to s 72A?

We turn now to consider whether, on a proper and harmonious construction of the statutory schemes of the Police Act and the IR Act, there is a statutory intention to exclude the operation of Pt 6 of Ch 2 of the IR Act in relation to police officers medically retired pursuant to s72A of the Police Act.
We observe firstly that s 72A is concerned with the medical retirement of confirmed police officers. Thus there are no issues of the "generally fragile position of probationary constables", as Heydon J described it, to consider. Nor is there any question of misconduct or performance driving the decision of the respondent. Those factors are expressly excluded by the terms of s 72A(b)(ii). These propositions take such dismissals out of the fields of operation of Pt 9 and s 80(3). Indeed, it prompts the question as to why a confirmed officer who has done nothing wrong would be in a worse position than one who has been found to have been guilty of misconduct or poor performance such as to have lost the confidence of the respondent. What is it then about s 72A, or other provisions of the Police Act or the IR Act, which point to inconsistency of the kind identified in Eaton?
The appellant is correct that his case is different from Eaton and McDonald (No. 3) because the appellant was medically retired under s 72A of the Police Act and not terminated as a probationary constable pursuant to s 80(3) of the Police Act or purportedly constructively dismissed.
We have undertaken a similar analysis to the terms of s 72A as the High Court applied to s 80(3) of the Police Act in Eaton and considered carefully the respondent's submissions about the statutory history of the Police Act.
The respondent's power under s 72A of the Police Act to cause an officer to be retired is enlivened if: the officer is found on medical grounds to be unfit to discharge, or incapable of discharging, his duties; and the officer's incapacity or unfitness appears likely to be of a permanent nature and has not arisen from the officer's misconduct or from circumstances within the officer's control. Section 72A therefore does not give the respondent an unfettered discretion to terminate employment of police officers in the way the High Court found that the clear language in s 80(3) of the Police Act, gave the respondent an unfettered discretion. This was accepted by the respondent (see [39] and [40] above).
We note parenthetically that the question of whether, if the relevant conditions were met, s 72A of the Police Act gave the respondent the discretion as to whether he could cause the officer to be retired, or whether once the conditions were met the respondent must cause the officer to be retired, was considered in Robinson (No. 3). In the decision of Commissioner Newall that was the subject of that appeal, Glen Robinson v Commissioner for Police, NSW Police Force [2013] NSWIRComm 1027, the respondent's discretion was described as "unfettered" once the conditions were met (at [75]). In our view the context in which Commissioner Newall used the expression was quite different to the respondent's unfettered discretion pursuant to s 80(3) of the Police Act. The Commissioner was there expressing the, at least tentative, view that the respondent was not required to medically retire the officer simply because the qualifying conditions were met.
The High Court in Eaton considered that a review by the Commission pursuant to Ch 2 of Pt 6 of the IR Act which would consider the respondent's reason for dismissal, and whether the respondent acted reasonably would be at odds with the right of the respondent to dismiss a probationary constable pursuant to s 80(3) without reason.
If the Commission were to undertake, pursuant to Ch 2 of Pt 6 of the IR Act, a review of a decision of the respondent pursuant to s 72A of the Police Act, such a review could, and most likely would, consider the respondent's reason(s) for dismissal, and whether the respondent had acted unreasonably, unjustly or harshly.
If an employee is dismissed on medical grounds, there is a manifest reason for dismissal. If this reason was to be considered by the Commission we do not consider this would be at odds with the respondent's rights under s 72A of the Police Act. Further, whether the respondent has acted reasonably in taking action under s 72A would be a relevant consideration if a dismissed officer were to seek administrative review. We do not consider that the Commission's power or discretion in these respects creates an inconsistency with the Police Act such as to exclude the operation of Ch 2 Pt 6 of the IR Act.
In Eaton, the High Court considered that the availability of reinstatement as a remedy highlighted that the IR Act was not framed with the Police Force in mind. The plurality did not consider this to be determinative, but rather that it highlighted that the IR Act is a general statute. In circumstances of medical retirement pursuant to s 72A we do not consider that the availability of reinstatement creates such a contrariety that by necessary implication it excludes the operation of Ch 2 Pt 6 of the IR Act.
We do not consider that the public interest in maintaining the integrity of the police force is diminished if Ch 2 Pt 6 of the IR Act is available to officers medically retired pursuant to s 72A of the Police Act.
There is no review method available in respect of s 72A of the Police Act. It would arguably be anomalous if an officer dismissed under s 181D of the Police Act was entitled to a merits review but an officer dismissed pursuant to s 72A was not. Where the Police Act makes no provision for merits review of a dismissal pursuant to s 72A of the Police Act, nor contains any provisions that are inconsistent with such a right existing, it is appropriate to conclude that claims under s 84 of the IR Act remain available.
There are no special terms associated with the removal from office pursuant to s 72A of the Police Act which are inconsistent with the Commission's powers under Ch 2 Pt 6 of the IR Act. There is also an obvious parallel with the right to seek a remedy, specifically reinstatement, under s 242 of the Workers Compensation Act. The acceptance of the existence of that right is consistent with such a right of review for medical retirement.
Applying the reasoning in Eaton to the circumstances of a medical retirement under s 72A, we consider medical retirement under s 72A is an industrial matter for which the Commission's power under Pt 6 of Ch 2 of the IR Act has been left intact which has not been expressly restricted by a provision of the Police Act.
On our construction of the Police Act and the IR Act there is no statutory intention to exclude the operation of Pt 6 of Chap 2 of the IR Act in relation to police officers medically retired pursuant to s 72A of the Police Act.
The Commission has power to determine the Unfair Dismissal Application, subject to the appellant lodging a written undertaking pursuant to s 90(b) of the IR Act not to proceed with the Workers Compensation Application.
The appeal is upheld.

Orders

The Full Bench makes the following orders: 1. Leave to appeal is granted. 2. The appeal is upheld and the decision of Commissioner Murphy of 22 August 2017 is set aside. 3. The matter is remitted to Commissioner Murphy for hearing and determination subject to the appellant lodging a written undertaking pursuant to s 90(b) of the IR Act not to proceed with the Workers Compensation Application.

Amendments 16 July 2019 - In paragraph 52 (1) the word "expressly" has been amended to "especially". 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: 16 July 2019

Public Sector Employment and Management Act 2002(NSW)

Police Amendment Act 2007(NSW)

Industrial and Employee Relations Act 1994(SA)

[1999] NSWIRComm 449

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