Solicitors:
Mr I Collins (Applicant)
Norton Rose Fulbright (Respondent)
File Number(s): IRC 893 of 2014
[2]
Judgment
This is an application brought pursuant to s.242 of the Workers Compensation Act 1987 ('the WC Act') by Mr Prince Daniel Unuafe.
Mr Unuafe was a probationary police constable. He was dismissed from his employment as a probationary police constable on 13 October 2014 by an order made by the Commissioner of Police or his delegate pursuant to s.80(3) of the Police Act 1990.
Interlocutory application
By Notice of Motion filed in the Commission on 16 April 2015 the respondent seeks an order striking out Mr Unuafe's application under the WC Act on the ground that the Commission has no jurisdiction to hear and determine the application.
Summary dismissal of proceedings
I turn briefly to the law governing an application for summary dismissal of proceedings.
Pursuant to Part 14 r 28 of the Uniform Civil Procedure Rules, the Commission may order that a proceeding be struck out if the pleadings disclose no reasonable cause of action.
It was common ground that the approach enunciated in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 must be satisfied for the respondent's strike out application to be successful. That is, the Commission would have to form the view that no relevant order could be made in the circumstances of the case, that there is "no possibility that there can be a good cause of action", in order to grant the respondent's motion.
I accept that, and add that I proceed on the basis that the applicant will only be deprived of the opportunity to conduct his case in the usual way 'in the clearest of cases': Agar v Hyde [2000] HCA 41; 201 CLR 552 at 575.
If, of course, the Commission were to be satisfied that it had no jurisdiction to grant the application, that would be sufficient to meet the test for summary disposal of the matter. A lack of jurisdiction necessarily means that there is no basis in law to grant the application made, and summary disposition is appropriate in circumstances where there is no basis in law to grant the relief sought: Hopkins v Governor-General of Australia [2013] NSWSC 1068 at [73] - [75]; Hitchcock v Pratt [2010] NSWSC 1508; 79 NSWLR 687 at [48]. That is unsurprising, as if there is no basis in law to grant an application, necessarily there is no possibility that there can be a good cause of action.
Whether or not the Commission has jurisdiction in a particular matter is a conclusion which is to be formed at the ordinary level of persuasion, not at any heightened level of certainty.
[3]
The issue
The issue arising upon the Notice of Motion is whether the Commission has jurisdiction to order, pursuant to the provisions of Part 8 of the WC Act, the reinstatement of a probationary constable who was dismissed from the NSW Police Force by the Commissioner of Police pursuant to powers conferred by Section 80(3) of the Police Act 1990.
The respondent submits, correctly, that the power to dismiss given by Section 80(3) of the Police Act is unfettered in respect of any requirement to give, or even have, a reason for the dismissal.
As a consequence, contends the respondent, neither the worker's employer, pursuant to s.241 of the WC Act, nor the Commission can determine whether the dismissal of a probationary constable was 'because' he was 'not fit for employment as a result of the injury received': s.241(2). The powers given to the Commission under Part 8 of the WC Act are exercisable only in circumstances where a worker is dismissed because the worker was 'not fit for employment as a result of the injury received'. Accordingly, if the Commission cannot determine whether that was in fact so or not, the jurisdictional gateway to the exercise of those powers set up by the words of s.241(2) cannot be passed through. I observe that there is no doubt that the fact of a worker having been dismissed for the reason of unfitness as a result of the injury received is a necessary jurisdictional fact for the prosecution of proceedings under s.242: Robson v GWA Group Limited [2015] NSWIRComm 9 at [23].
It will be seen that the respondent's argument relies by analogy on the reasoning in Commissioner of Police for NSW v Eaton (2013) 252 CLR 1.
In Eaton the High Court considered s.80(3) of the Police Act in the context of resolving the proper operation of the Police Act and the powers to reinstate a dismissed employee conferred on the Commission under Part 7 of the Industrial Relations Act 1996. (the IR Act')
[4]
The reasoning in Eaton
The majority in Eaton held at [73]-[75]:
"The starting point is the terms of s. 80(3) in the context of the status of a probationary constable and the responsibilities vested in the Commissioner. A probationary constable is seeking to achieve confirmation. During this period, the probationary constable's conduct is monitored and subject to report, so that the Commissioner may determine whether the person is suitable for the role of a police officer within the NSW Police Force. The position of a probationary constable may be contrasted with that of a police officer who has achieved confirmation and whose history in the Police Force may need to be taken into account by way of review of a dismissal.
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 a requirement for reasons, imposed by Part 9 of the Police Act, where a confirmed police officer is dismissed.
The lack of a requirement for reasons also points to some incoherence with the provisions of Part 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."
At [13] and [14], Heydon J addressed the phrase "without giving any reason" as found in s 80(3) of the Police Act. He relevantly observed:
"The next key expression is "without giving any reason". It is often impossible to assess whether a dismissal was harsh, unreasonable or unjust without examining the reasons for it. And in many cases it is impossible to assess what the reasons for a dismissal were unless the person who made the decision to dismiss states the reasons. The capacity of the Commissioner to dismiss probationary constables "without giving any reason" suggests that there is to be no examination of whatever the Commissioner's reasons were ...
The first respondent submitted that the absence of an obligation to give reasons in s. 80(3) was not significant. This was because there was no duty at common law to give reasons. But this case does not concern the common law. It concerns statutory construction. The lack of any duty to give reasons affects how the statutory scheme is to be construed. The relevant comparison is not between s. 80(3) and the common law. It is between s. 80(3) and the duty to give reasons under s. 181D(4) of the Police Act."
His Honour went on to say at [17]
"The first respondent submitted that these arguments based on the language of s. 80(3) of the Police Act were beside the point. He submitted that the Commission's power to review a dismissal should not be restricted to the nature of the power to dismiss. That is not so. The freedom with which an employer may dismiss can affect the capacity of an employee to challenge the dismissal. If, as Gibbs CJ said (in O'Rourke), a power to dismiss like s 80(3) of the Police Act is unfettered, then its exercise is necessarily immune from challenge on the ground of harshness, unreasonableness or unfairness."
If the reasoning in Eaton be correct, and I am bound to accept that it is, it must in my view follow that it applies with equal force to the interaction of the Police Act with the powers conferred on the Commission to reinstate under the WC Act. If it is the case that '[t]he 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', then the enquiry into the reason for the dismissal, necessary to establish the jurisdictional fact required to be established for the operation of s.242 of the WC Act,, cannot be made. The reasoning in Eaton so far as it applies to the operation of the IR Act must apply to the operation of the WC Act.
On its face it must; but, however, subject to two further considerations.
The first of these is the nature and purpose of the WC Act itself.
Mr Collins, for the Applicant, correctly submitted that the WC Act is beneficial legislation, designed with the express purpose of, inter alia, returning injured workers to the workplace. It ought therefore not be read down, he submitted, by the effect of legislation made for another purpose. He pointed to the decision in ADCO Constructions v Goudappel [2014] HCA 18 as being the basis for a proper understanding of the suite of legislation that addresses the circumstances of injured workers.
The IR Act, of course, with which Eaton was concerned, is also beneficial legislation, designed to, inter alia, permit the restoration to the workforce of workers unfairly dismissed.
But even being beneficial legislation does not serve to overturn the reasoning in Eaton as it applies here. As a matter of necessary statutory construction, if no reason need be given for a termination, there cannot be an enquiry into the termination that depends on a reason being established. The first additional consideration accordingly does not change the outcome.
I observe, of course, that in this case the Commissioner of Police did advance a reason for the dismissal: Mr Unuafe was told that the order of dismissal was made consequent upon his breach of terms of his probationary contract of employment; that is,
1. his failure to demonstrate a satisfactory standard of operational performance and competence; and
2. his failure to remain enrolled in and complete the Associate Degree in Policing Practice.
No reference to unfitness or injury was made. It can be surmised that Mr Unuafe would challenge the given reasons, and say that the real reason was nevertheless his injury or the consequences of it. That is precisely the point. To establish the necessary jurisdictional fact would require an enquiry into the reasons for the dismissal. It is precisely that enquiry which cannot be made, on the reasoning in Eaton.
The second further consideration, although it was not agitated by the parties, is this. S.244 of the WC Act provides something which part 6 of the IR Act relevantly does not: a statutory presumption of a reason for a dismissal.
Does the provision of a statutory, and rebuttable, presumption as to the reason for the termination render the analogous adoption of the reasoning in Eaton inappropriate? The answer is that it does not.
In Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305 at [52] Bathurst CJ (with whom Beazley P agreed) stated at [50] that the presumption in s 244(1) has the effect of placing the onus on the employer to demonstrate that the reason for the dismissal was not because of unfitness for employment as a result of the injury received.
His Honour added at [52]:
"The reason for the presumption, in my opinion, is to overcome the difficulty a worker might otherwise have in establishing that the cause of dismissal was unfitness for employment as a result of the injury. To avoid that difficulty the onus is on the employer to prove that the dismissal was not connected with the worker's injury in the sense described in s. 244(2). In those circumstances, it would be a misconstruction of the Act to conclude that the actual reasons of the employer for dismissal of the worker should not be taken into account in determining whether or not the presumption is rebutted. The question in effect is why the employer dismissed the worker. That can only be considered in the context of the actual reasons for doing so."
That is, the enquiry into the reason for dismissal must still be made in any proceeding under part 8 of the WC Act. A reason must be established or else, subject to contest, assumed. That requirement to enquire into and establish a reason is, on the High Court's reading of s.80(3) of the Police Act in Eaton, simply impermissible.
It follows that a probationary constable dismissed pursuant to an order validly made under s.80(3) of the Police Act has no standing to invoke the provisions of Part 8 of the Workers Compensation Act, certainly so far as they go to seeking restoration of the employment relationship by this Commission.
[5]
Disposition of the matter
It follows that the Commission is without jurisdiction to hear and determine the application brought by Mr Unuafe.
The order that the Commission therefore makes in this matter is as follows:
1. The application made pursuant to s.242 of the Workers compensation Act 1987 is dismissed.
PETER NEWALL
Commissioner
[6]
Amendments
04 May 2015 - Corrected Coversheet/Case Title
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Decision last updated: 04 May 2015