Welch v Commissioner of Police

Background

1. It is necessary to set out some background which falls from the evidence.
2. The applicant commenced as a probationary police officer with the NSWPF on 21 December 2001. He was promoted to the position of Constable on 9 May 2003, to Senior Constable on 9 May 2007 and to Sergeant on 29 November 2015.
3. The applicant ceased community policing when he was transferred to the Professional Standards Command on 29 November 2015.
4. The respondent introduced several control measures in response to the COVID-19 virus throughout 2020 and early 2021, including the requirement that members of the NSWPF were to maintain awareness and good hygiene to limit the spread of the virus.
5. From early to mid-2021, members of the NSWPF working in the NSW government quarantine programme were required to be vaccinated against COVID-19.
6. From 19 February 2021 the respondent commenced sending regular written communication through the internal NEMISIS system, strongly encouraging members of the NSWPF to become vaccinated against COVID-19 and informing them of arrangements to receive vaccinations.
7. Medical information in relation to COVID-19 vaccines were provided in some of the NEMISIS messages and in fact sheets sent by the respondent to members of the NSWPF.
8. From August 2021 the numbers of COVID cases of members of the NSWPF started to increase with the appearance of the Delta strain of COVID-19.
9. Given the Delta outbreak the respondent undertook a risk assessment in relation to mandatory vaccination for COVID-19, which was concluded on 5 September 2022 (the "Risk Assessment").
10. On 7 September 2021, the respondent in writing and in a video issued a direction that all members of the NSWPF receive a COVID- 19 vaccination in order to perform their duties. (the "Direction"). The Direction required members of the NSWPF and employees to: 1. have received at least one dose of a COVID-19 vaccination by 30 September 2021; 2. two doses of a COVID-19 vaccination to be received by 30 November 2021; and 3. provide evidence of vaccination at the request of management.
11. There were exemptions to the Direction, including the existence of a medical contraindication.
12. The risk assessment and the Direction were not the subject of consultation with the members of the NSWPF nor their representatives prior to 7 September 2021.
13. On the same day as the announcement of the Direction, the Police Association of NSW ("PANSW") in a publication to all members called "On The Beat" informed its' members that after being briefed and also receiving advice from eminent senior counsel that it supported the Direction and the executive considered it likely to be lawful.
14. On 8 September 2021, the PANSW sent correspondence to the respondent which stated: The Work Health and Safety Consultative Committee was never consulted about any mandatory requirement for police to be vaccinated, and no risk assessment on the deployment of a mandatory vaccination requirement has been shared with that Committee or the PANSW generally.
15. The PANSW correspondence made a number of other requests, including the provision of a copy of any risk assessment which underpinned the Direction.
16. The applicant was certified by his general practitioner on 8 September 2021 as suffering from anxiety and he was absent from work on sick leave from that date until 13 October 2021.
17. On 25 September 2021, Deputy Commissioner Webb issued a reminder of the Direction to all members of the NSWPF which the applicant asserts he did not see until he returned from sick leave.
18. On 28 September 2021, an extraordinary meeting of the Workplace Health and Safety Consultative Committee which included representatives of the PANSW and the Public Service Association (PSA) took place. During this meeting an electronic copy of the Risk Assessment was presented.
19. On 7 October 2021, the respondent wrote to the Applicant and reminded him of his obligation to comply with the Direction and provided him with a further seven days to comply.
20. The applicant on 11 October 2021 responds to the 7 October 2021 reminder direction by email and requests he be placed on extended leave at half pay and further states: However, I have not and will not be getting any kind of experimental vaccine/ gene therapy injection which is subject only to emergency approval, is in stage 3 clinical trials which are not due to conclude for a number of years.
21. On 10 November 2021 the applicant was served with a notice pursuant to s. 181D(3)(a) of the Act which he responded to through his legal representatives on 30 November 2021.
22. On 7 February 2022 the Order was issued.

The Order Reasons

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

The applicant's case

1. The applicant's submissions advanced at the hearing was that the removal was harsh, unreasonable and unjust for the following reasons: 1. the Direction was not one which was required to be followed, as it was not a lawful and reasonable one; 2. the applicant did not contravene the Direction; and 3. the Order was harsh given the applicant's length of service and his personal circumstances.
2. I will now consider each of these reasons, including the respondent's case in response to these.

Direction Not Need Be Followed

1. The applicant submitted that he did not need to comply with the Direction as it was not lawful and/or reasonable in reliance on this principle falling from the oft cited case of R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday; Ex parte Sullivan (1938) 60 CLR 601.
2. The applicant advanced two grounds on which the Direction was not lawful and/or unreasonable as follows: 1. It is not one which is part of the lawful work of a police officer; and 2. The respondent failed to consult as required by the Work Health and Safety Act 2011 (NSW) (the "WHS Act") prior to the introduction of the Direction.
3. The effect of the respondent's submission in reply was that a direction need only be lawful for a police officer to comply with it, however, they disagreed that the direction also had to be reasonable.
4. In the alternative, the respondent submitted that the Direction was in any event lawful and reasonable.

Lawful and Reasonable

1. The respondent submitted that the NSWPF is a disciplined force of the Crown, they are not employees' and their duties and obligations are set out in statute and the common law. The respondent went on to submit that the legislative scheme, specifically s 201 of the Act and Clause 8 of the Regulation required strict compliance only with "lawful orders" and a failure to do so constitutes an offence.
2. In support of this submission the respondent relied upon the decision of the High Court in State of New South Wales v Fahy (2007) 232 CLR 486 at [21] and the decision of the Supreme Court of New South Wales in Benic v State of New South Wales [2010] NSWSC 1039 at [201] ("Benic").
3. I am required to consider the reasons provided by the respondent in the Order which include alleged contraventions of s 28 of the WHS Act and point 5 of the NSW Police Force Code of Conduct and Ethics Code (the "Code"). Both of these import a requirement to comply with reasonable directions. Given this, I reject the respondent's submissions on this point and accordingly I must be satisfied that the Direction was both lawful and reasonable.

Lawful Duty

1. The applicant submits that receiving a vaccination is a medical procedure and as such it is not tied to the applicant's work as a police officer and is therefore not a lawful and reasonable direction.
2. In support of this submission, the applicant firstly points to the requirement of a police officer in carrying out a lawful order or lawful duty as a police officer under s 201. Those duties were submitted as being those stated in the following passage from Benic: [20] Under the Police Act, the Commissioner, in addition to his powers in s 8, has the following specific powers: …………. (c) give a direction to any member of the NSW Police Force with respect to their conduct, functions or actions, including putting them in harms way, with which the member cannot lawfully refuse to comply without committing an offence (s 201); ……………
3. The applicant pointed to the list of duties in sub-clause 8(2) of the Regulation and submitted that there was nothing in this list which supported the contention that receiving a vaccination is part of the applicant's duties.
4. Additionally, the applicant relied on the case of McManus v Scott-Charlton (1996) 70 FCR 16 at p. 21 to support the submission that the imposition of the vaccine was not necessary for effective frontline policing, in all the circumstances, as a 100 per cent blanket mandate.
5. The respondent in reply, submitted that on a proper reading of Clauses 8 and 9 of the Regulations the applicant was required to promptly comply with all lawful orders of the respondent, even if he was not on duty.
6. Additionally, the respondent submitted that the list of duties set out in sub-clause 8(2) of the Regulation were not comprehensive in that it commences with the words "In particular a police officer is required to".
7. The Commissioner is provided with explicit powers under s 8 of the Act, which is in the following terms: Commissioner to Manage and Control NSW Police Force (1) The Commissioner is, subject to the direction of the Minister, responsible for the management and control of the NSW Police Force. (2) The responsibility of the Commissioner includes the effective, efficient and economical management of the functions and activities of the NSW Police Force. (3) The Commissioner may classify the various duties that members of the NSW Police Force are required to perform and allocate the duties to be carried out by each such member. (4) The Commissioner may issue (and from time to time amend or revoke) instructions to members of the NSW Police Force with respect to the management and control of the NSW Police Force.
8. A Full Bench of the Queensland Industrial Relations Commission in Brassell-Dellow & Ors v State of Queensland (Queensland Police Force) & Ors [2021] QIRC 356 ("Brassell-Dellow") had to determine whether the Queensland Commissioner of Police had the power to make a direction requiring police officers and civilian employees to become vaccinated for COVID-19.
9. The Full Bench in Brassell-Dellow found that the Commissioner did have such a power. In reaching this conclusion, they considered the provisions of the Police Service Administration Act 1990 (QLD) ("QSA Act") which provided the Commissioner powers under s 4.9 of the QS Act to issue directions to ensure the efficient and proper functioning of the police service.
10. The power provided to the respondent under the Act and Regulation is very similar to that of the Queensland Commissioner of Police and the reasoning of the Full Bench in Brassell-Dellow is one which I adopt and accordingly the applicant's submission that the Direction is not one which is unlawful because it is not part of the applicant's duties is rejected.

Consultation

1. The applicant submitted that the respondent in failing to consult with employees and/or their representatives prior to the making of the Direction made it unlawful and/or unreasonable.
2. The applicant pointed to the evidence of the respondent's witness, Mr Driver, that the risk assessment which underpinned the Direction and the Direction itself was kept confidential until 7 September 2021.
3. Further, the applicant submitted that the evidence of Mr Driver disclosed that the relevant policy required that the risk assessment and the Direction should have been put before the consultative committee of the respondent prior to its' introduction.
4. As to unlawfulness, the applicant submitted that the failure to consult prior to the introduction of the Direction constituted a contravention of sections 46 and 47 of the WHS Act, which are penalty provisions and for this reason it was not a lawful direction.
5. In the alternative, the applicant submitted that the failure to consult prior to the announcement of the Direction was unreasonable. In support of this submission, the applicant relied on the Full Bench decision of the Fair Work Commission in Construction, Forestry, Maritime, Mining and Energy Union & Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 ("Mt Arthur") at paragraphs [247]-[252].
6. In relation to the lawfulness of the Direction, the respondent in reliance of paragraph [84] of Mt Arthur, submitted that a failure to consult in accordance with the WHS Act is not relevant. Further, the respondent submitted that even if there had been a failure to consult in accordance with the WHS Act, it did not render the Direction unlawful, rather it exposed the respondent to the imposition of a penalty.
7. As to whether there had been consultation in accordance with the provisions of the WHS Act, the respondent gave the following answer in response to whether this had occurred: We have not presented evidence that would allow me to make that submission. What I am able to submit is that the association was comfortable with the communications that it had that those communications, whatever they were in whatever form they took place, were sufficient to meet all of the requirements for them to support, which would include the consultation requirements. Now, I can't say that if I went to one of the regulations that are applicable, one of the couple of regulations applicable to the Work Health and Safety Act that I can tick off every element. So I can't make the submission directly "yes" but what I can say is consultation in this case, Mount Arthur only one element, consultation in this case is not an element that you would find has a negative impact on the decision-making of the Commissioner and it wouldn't because the association itself was satisfied through the mechanisms that I've pointed out and remained satisfied
8. Subsequent to the hearing, the respondent referred the Commission to the decision of Commissioner Muir in Southcombe v Commissioner of Police [2022] NSWIRComm 1112 ("Southcombe"). This was a decision dealing with an application under Part 7, of Chapter 2 of the Industrial Relations Act 1996, made an employee of the respondent who was dismissed by the respondent a public sector disciplinary appeal pursuant to Part arising from the applicant's termination for failure to abide by a particular COVID-19 mandate.
9. The applicant in reply, submitted that Southcombe is of no assistance in this matter for the following reasons: 1. It is not binding authority; 2. It neither sets out the terms of the decision appealed by Ms Southcombe nor the terms of the vaccination mandate referred to in the decision. As a consequence the decision can provide no guidance or assistance in relation to the issues in Welch, including the nature of the vaccination mandate in Welch; and 3. It relates to a public sector disciplinary appeal whereas the matter of Welch is a matter under section 181E of the Police Act 1990 and a different legal test applies.
10. Having considered Southcombe, it is of no assistance in this matter for the relevance to this decision for the reasons set out by the applicant above.
11. As to the issue of consultation, given the evidence of Mr Driver regarding the respondent's maintaining of confidentiality on the risk assessment and the Direction, it is more likely than not that the consultative requirements of the WHS Act as at 7 September 2021 had not been complied with.
12. Although the applicant relied upon Mt Arthur to support the contention regarding the unlawfulness of the Direction, the Full Bench did not provide a conclusive view as to whether a contravention of the consultation provisions of the WHS Act rendered a direction unlawful.
13. In Stewart Tween v Qantas Airways [2022] FWC 1594, Deputy President Easton of the Fair Work Commission considered this issue in the context of the introduction of Qantas' mandatory vaccination policy and reached the following conclusion: [91] By contrast, the consultation provisions in the WHS Act impose obligations on an employer to do certain things, but they do not prevent the employer from doing anything. If Qantas has contravened s.47 of the WHS Act, it has done so by omission - by failing to do something that the WHS requires it to do. [92] Understood in this way, the direction given by Qantas when it published its Policy, was not conduct in contravention of the WHS Act or otherwise illegal or unlawful.
14. I agree with the reasoning of the Deputy President in Tween and on this basis, I do not consider that the Direction upon its' announcement on 7 September 2022 was unlawful even if there had been a contravention of the consultation provisions of the WHS Act.
15. In any event, the evidence discloses that there had been consultation with at least the consultative committee as requested by the PANSW prior to the mandated time for the first vaccination under the Direction and some weeks prior to the reminder sent to the applicant to comply on 7 October 2021.
16. I reject the applicant's submission that the Direction was unreasonable and unlawful on the basis of lack of consultation. I do so on the basis of the information concerning COVID-19 and vaccines provided by the respondent to members of the NSWPF prior to 7 September 2021, the approach taken by the respondent with regards to consultation following the PANSW request of 8 September 2021 as well as the support of the PANSW for the Direction.

The Direction Was Followed

1. It was advanced by counsel for the applicant, that the applicant complied with the express term of the Direction which was that proof of vaccination be provided and in the absence of such proof, that the applicant not attend for duty, which is what the applicant did.
2. The applicant submitted that the requirement of the Direction as advanced immediately above, is consistent with the finding of Commissioner Murphy in Moana Danger v Commissioner of Police (No 2) [2022] NSWIRComm 1040 ("Danger").
3. In reply the respondent submitted that the applicant's evidence before this Commission and in the materials he put before the respondent in reply to the Notice, was that from 7 September 2021 when he saw the Direction he knew it was a mandatory direction that required him to be vaccinated and management action including disciplinary action was likely to be taken if he did not comply.
4. As to Danger, the respondent submitted that the decision dealt with the issue of whether or not Ms Danger had to provide proof of vaccination and what was said by Commissioner Murphy concerning the Direction was obiter.
5. I do not accept the applicant's submission that the applicant had complied with the Direction. Firstly, the Direction was clear that a failure to receive a COVID-19 vaccination by a particular date may result in management action. Secondly, the video message from the respondent which was sent on the same day confirmed the requirement to receive a COVID-19 vaccination. Thirdly, the applicant's own evidence was that he understood this and that he deliberately refused to abide by the Direction.
6. As to Danger, the applicant did not point to any specific passage to make good the proposition that Commissioner Murphy made a finding consistent with the applicant's interpretation. Secondly, the respondent is correct in that the issue being dealt with by Commissioner Murphy was not the same as that dealt with in this matter.

Harsh

1. The applicant submitted that the Order was harsh in terms of its' impact upon him and that such impact will be ongoing. The applicant in particular points to his length of service, that he was or has been married for 13 years with three dependent children and also had financial commitments including mortgages.
2. The respondent in relation to harshness submitted that to the extent that the removal is harsh, either in respect of his personal circumstances or financially, these matters do not outweigh the fact that the Applicant deliberately chose to disobey a lawful direction issued to him, in breach of his statutory obligations.
3. The proper approach to considering the issue of harshness was set out by Staunton J in the following passage of Stuart Boyd Formston v New South Wales Police [2006] NSWIRComm 88: [94] While on the issue of removal being too harsh in its consequences, it can hardly be denied that the removal of a person from his or her employment, whether it be as a police officer or otherwise, would have harsh economic as well as personal consequences for that individual. The proper approach must surely be that, given the particular facts and circumstances relied upon to justify the person's removal or termination from the workforce, the removal or termination is too harsh given the personal and economic consequences that such a decision brings. In other words, there may well be occasions when the facts and circumstances relied upon to remove or terminate an employee are justified notwithstanding the harsh personal and economic circumstances that may arise. Ultimately, it is a matter to be taken into account in the overall balancing exercise that s 181F(3) requires.
4. That the removal of the applicant from the NSWPF is harsh, is beyond doubt, however the removal was as a result of the applicant's deliberate failure to abide by a Direction of the respondent. It would be expected that members of the NSWPF would abide by such directions and particularly so in relation to matters concerning issues of safety.
5. In balancing the various aspects of the applicant's removal, it was justified and outweighed the harshness upon which it visited upon the applicant.

Conclusion and orders

1. For the above reasons I find that the applicant has not made out his case and that his removal from the force was not harsh, unjust or unreasonable and accordingly I order that his application be dismissed. Daniel O'Sullivan COMMISSIONER

Amendments 24 January 2023 - Corrections made in Paragraph [70] from Commissioner Muir to Commissioner Murphy. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 January 2023