Commissioner of Police for New South Wales v Lawrance

Case •

[2011] NSWCA 377

•

08 December 2011

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Commissioner of Police for New South Wales v Lawrance & Anor [2011] NSWCA 377
Hearing dates:14 November 2011
Decision date: 08 December 2011
Before: Beazley JA at 1
McColl JA at 2
Sackville AJA at 3
Decision:

1) The applicant's summons dated 24 August 2011 is dismissed.

2) The applicant pay the first respondent's costs of the summons.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: JUDICIAL REVIEW - Police sergeant seeks review of Commissioner's decision removing him from the Police Force - Industrial Relations Commission ("IRC") finds removal harsh and directs Commissioner to re-employ the former sergeant at the lower rank of Senior Constable - whether the IRC's decision affected by jurisdictional error - whether s 89(2) of the Industrial Relations Act 1996 empowers the IRC to direct re-employment of a former police officer at a lower rank - whether there was evidence to support IRC's finding that re-employment was practicable.
Legislation Cited:

Workplace Relations Act 1996 (Cth)

Industrial Arbitration Act 1940
Industrial Arbitration (Unfair Dismissal) Amendment Act 1991
Industrial Relations Act 1991
Industrial Relations Act 1996
Police Act 1990
Cases Cited: Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; 221 CLR 539
Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales [2009] NSWCA 198; 185 IR 458
Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47; 77 NSWLR 159
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531
Category:Principal judgment
Parties: Commissioner of Police (Applicant)
Andrew Lawrance (First Respondent)
Industrial Relations Commission of New South Wales (Second Respondent)
Representation: M Kimber SC; I Taylor (Applicant)
S Crawshaw SC; P Lowson (First Respondent)
Henry Davis York (Applicant)
Walter Madden Jenkins Solicitors (First Respondent)
File Number(s):2011/272943
Publication restriction:No
 Decision under appeal 
Citation:
Commissioner of Police v Lawrance [2011] NSWIRComm 109
Date of Decision:
2011-08-17 00:00:00
Before:
Boland J, President; Kavanagh J; Staff J
File Number(s):
2011/272943

Judgment

  1. BEAZLEY JA: I agree with Sackville AJA.

  1. McCOLL JA: I agree with Sackville AJA's reasons and the orders his Honour proposes.

  1. SACKVILLE AJA: These proceedings for judicial review arise out of an order made by the applicant (" Commissioner ") on 30 December 2009 removing the first respondent (" Respondent ") from the New South Wales Police Force (" Force "). The Commissioner removed the Respondent from his position as Sergeant and Sector Supervisor at Maclean Police Station, on the ground that the Commissioner did not have confidence in the Respondent's suitability to continue as a police officer.

  1. The Respondent applied for review of the removal order in the Industrial Relations Commission (" IRC ") and sought an order for reinstatement to his previous position. The IRC declined to make a reinstatement order, but ordered the Commissioner to re-employ the Respondent at the lower rank of Senior Constable, Level 5. The IRC's order was upheld by the Full Bench of the IRC on appeal by the Commissioner pursuant to a grant of leave to appeal.

  1. In these proceedings, the Commissioner seeks, among other relief, orders in the nature of certiorari quashing the re-employment order made by the IRC and confirmed by the Full Bench. The Commissioner accepts that, by reason of the privative clause contained in s 179 of the Industrial Relations Act 1996 (" IR Act ") and the decision of the High Court in Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531, he cannot succeed unless he demonstrates that the IRC committed a jurisdictional error.

  1. The Commissioner's major contention is that the IRC mistakenly construed s 89(2) of the IR Act as empowering it to order the re-employment of a removed police officer at a lower rank than the officer previously held. According to the Commissioner, the IRC thereby misapprehended its powers and committed a jurisdictional error, warranting the intervention of the Court. (Section 89(2) of the IR Act is reproduced at [27], below.)

  1. The IRC is the second respondent to the Commissioner's application in this Court. It has filed a submitting appearance.

BACKGROUND

  1. On 1 October 2009, the Commissioner gave notice pursuant to s 181D(3) of the Police Act 1990 (" Police Act ") that he was considering the Respondent's suitability to continue as a police officer. The notice identified conduct by the Respondent that was said to be entirely inappropriate for a police officer. It was alleged that the Respondent had exposed his penis at a work-related Christmas function attended by a number of other police officers and civilians, including women.

  1. After considering representations made on behalf of the Respondent, the Commissioner made the order for removal of the Respondent from the Force, pursuant to s 181D(1) of the Police Act. The order was accompanied by a detailed statement of reasons which recorded the facts as found and the Commissioner's view that the Respondent's conduct was not only inappropriate but had been significantly aggravated by a number of factors. The aggravating factors included a warning given to the Respondent in relation to similar conduct in the past.

  1. On 14 January 2010, the Respondent applied to the IRC pursuant to s 181E of the Police Act for review of the Commissioner's removal order, on the ground that his removal from the Force was harsh, unreasonable or unjust. The application sought the Respondent's reinstatement to his former position as a Sergeant in the Force. He did not seek re-employment to any other position.

  1. The Respondent's application for review was heard on 13 and 14 July 2010 by Walton J, who delivered a detailed judgment on 12 November 2010: Lawrance v Commissioner of Police [2010] NSWIRComm 149 (" First Judgment "). Walton J found (at [324]) that there were a number of mitigating and ameliorating factors that warranted a conclusion that removal of the Respondent from the Force was " harsh ". His Honour considered (at [333]) that in view of the Respondent's conduct and " immaturity of character " it was impracticable to reinstate him to the position and rank of a Sergeant of Police carrying out senior duties such as station manager or shift supervisor.

  1. However, Walton J found (at [334]) that an order for re-employment of the Respondent in the position of Senior Constable was appropriate and practicable. There were, his Honour found (at [340]), positions of Senior Constable available within the Force and that the Respondent was suitable for such a position. Accordingly, Walton J indicated in the First Judgment (at [342]) that he proposed to order the Respondent's re-employment to the position of Senior Constable at the highest incremental step under the relevant award.

  1. Walton J directed the parties to file submissions as to the appropriate form of orders. After considering these submissions, his Honour made orders on 2 December 2010: Lawrance v Commissioner of Police (No 2) [2010] NSWIRComm 173 (" Second Judgment "). The orders are as follows:

"1. The Commissioner of Police shall re-employ [the Respondent] as a Senior Constable, Level 5, Step 1 effective from 3 December 2010 in a position to be determined by the Commissioner of Police.
2. The period from the date of removal to the date of re-employment will not count as service for any purpose (and the [Respondent] will not be entitled to any payment for that period), but will not break continuity of service for the purpose of calculating leave entitlements.
3. To the extent [the Respondent] was paid, on removal, for leave entitlements accrued prior to that date, the leave will not be re-credited unless the [Respondent] repays the relevant payments.
4. The re-employment of [the Respondent] is subject to the following conditions:
(a) When he is on duty (as distinct from being rostered on duty), he will submit to testing by an authorised person for the presence of alcohol at least once per year;
(b) He is not necessarily to be given notice of the time of testing;
(c) He may not refuse or fail to undergo a breath test or breath analysis in accordance with a direction of an authorised person;
(d) Any testing is to continue for such period he remains a member of NSW Police Force or a shorter period as determined by the Commissioner of Police;
(e) He will not be eligible for promotion before 4 December 2011; and
(f) He will receive a final written warning in a form determined by the Commissioner of Police, as to any future behaviour.
[5] These orders shall operate on and from 2 December 2010."

  1. The Commissioner sought leave to appeal to the Full Bench of the IRC pursuant to ss 187 and 188 of the IR Act. The Commissioner contended that the matter was of such importance that leave should be granted in the public interest: IR Act s 188(2). The orders made by Walton J were stayed pending the hearing and determination of the Commissioner's application.

  1. On 17 August 2011, the Full Bench, by majority, granted leave to appeal, but dismissed the appeal: Commissioner of Police v Lawrance [2011] NSWIRComm 109 (Boland J, President and Staff J; Kavanagh J dissenting). The majority rejected the Commissioner's argument that s 89(2) of the IR Act does not empower the IRC to order re-employment of removed police officers to a lower rank in the Force. Their Honours also rejected challenges to the merits of Walton J's decision.

  1. Kavanagh J, in dissent, would have allowed the Commissioner's appeal. Her Honour considered that the proper exercise of discretion was so clearly in favour of finding that the termination was not harsh that the decision to uphold the Respondent's application was a manifest injustice. Her Honour did not need to address the Commissioner's argument that Walton J had misconstrued s 89(2) of the IR Act.

  1. The orders made by Walton J have been stayed pending the outcome of the Commissioner's application to this Court to quash the orders on the basis of jurisdictional error.

LEGISLATION

  1. Part 9 of the Police Act is headed " Management of conduct within NSW Police Force ". Division 1 of Part 9 (s 173) deals with " Misconduct and unsatisfactory performance ", while Div 1A (ss 174-181) deals with " Review of Commissioner's order under Division 1 ".

  1. Section 173(2) of the Police Act provides that the Commissioner may take certain action with respect to a police officer who engages in misconduct. The available action includes a reduction of the police officer's rank or grade and any other action, except dismissal or a fine, that the Commissioner considers appropriate. Action of this kind is known as " reviewable action " (s 173(1)). A police officer in respect of whom an order for reviewable action is made under s 173 may apply to the Commission for review of the order on the ground that the order is beyond power or is harsh, unreasonable or unjust: s 174(1).

  1. Division 1B of Part 9 (s 181D) is headed " Summary removal of police officers in whom the Commissioner does not have confidence ". Division 1C of Part 9 (ss 181E-181J) is headed " Review of Commissioner's decision under Division 1B ".

  1. Section 181D of the Police Act relevantly provides as follows:

"(1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct.
...
(4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force.
(5) The removal takes effect when the order is made.
...
(7) Except as provided by Division 1C:
(a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and
(b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section.
In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission.
(7A) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action." (Emphasis in original.)

  1. Section 181E(1) provides that a police officer who is removed from the Force by an order under s 181D may apply to the IRC for a review of the order on the ground that the removal is harsh, unreasonable or unjust. A review under Div 1C is to be conducted by the IRC constituted by a single judicial member: s 181K(1).

  1. Section 181F deals with proceedings on a review by the IRC, as follows:

"(1) In conducting a review under this Division, the Commission must proceed as follows:
(a) firstly, it must consider the Commissioner's reasons for the decision to remove the [Respondent] from the NSW Police Force,
(b) secondly, it must consider the case presented by the [Respondent] as to why the removal is harsh, unreasonable or unjust,
(c) thirdly, it must consider the case presented by the Commissioner in answer to the [Respondent]'s case.
(2) The [Respondent] has at all times the burden of establishing that the removal of the [Respondent] from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary.
(3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to:
(a) the interests of the [Respondent], and
(b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police force, and the fact that the Commissioner made the order pursuant to section 181D (1))."

  1. Section 181G states that, subject to a number of presently irrelevant exceptions, the provisions of the IR Act apply to an application for a review under Div 1A of Part 9 in the same way as they do to an application under Part 6 (unfair dismissals) of Chapter 2 of the IR Act.

  1. Division 1A of Part 9 of the Police Act applies not only to review proceedings before the Commission on a review under Div 1A but also to proceedings before the Full Bench of the Commission on an appeal from a decision of the Commission: s 181J.

IR Act

  1. Part 6 of Chapter 2 of the IR Act (ss 83-90) is headed " Unfair dismissals ". Section 88 specifies the matters that the IRC may, if appropriate, take into account in determining the [Respondent]'s claim that his or her dismissal is harsh, unreasonable or unjust.

  1. Section 89 of the IR Act provides as follows:

"(1) Reinstatement
The Commission may order the employer to reinstate the [Respondent] in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed.
(2) Re-employment
If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable.
(3) Remuneration
If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order.
(4) Continuity
If the Commission orders reinstatement or re-employment, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal.
(5) Compensation
If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed ...
...
(8) An order under this section may be made on such terms and conditions as the Commission determines."

  1. Section 179 of the IR Act is a privative clause which relevantly provides as follows:

"(1) A decision of the Commission (however constituted) is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal.
...
(5) This section extends to proceedings brought in a court or tribunal for any relief or remedy, whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise.
(6) This section is subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law."

  1. It has been held that s 181G(1) of the Police Act picks up s 179 of the IR Act in relation to an application under s 181E(1) of the Police Act seeking review of a removal decision: Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales [2009] NSWCA 198; 185 IR 458, at 466 [43], per Spigelman CJ (with whom Macfarlan and Young JJA agreed). The effect of the High Court's decision in Kirk v IRC is that s 179 of the IR Act cannot protect a decision of the IRC from judicial review if it is affected by " jurisdictional error ".

  1. A party to proceedings in the IRC may appeal to a Full Bench against a decision of the IRC constituted by a single member: s 187(1)(a). An appeal requires the leave of the Full Bench, but leave is to be granted if the Full Bench considers that the matter is of such importance that leave should be granted in the public interest: s 188(1), (2).

THE IRC'S DECISIONS

  1. It will be recalled that the Respondent's application to the IRC sought an order for reinstatement to his former position pursuant to s 89(1) of the IR Act, but not an order pursuant to s 89(2) that he be re-employed in another position. During final submissions at the hearing before Walton J, his Honour suggested that the reinstatement of the Respondent to his former position of Sergeant might be " impracticable " by reason of his conduct. His Honour indicated that if such a finding were made, it might be appropriate to order the Commissioner to re-employ the Respondent at a lower rank. Counsel then representing the Minister conceded that the IRC had power under s 89(2), if the required findings of fact were made, to make such an order. Walton J recorded this concession in the First Judgment (at [335]).

  1. The Commissioner further conceded before Walton J that there was no barrier associated with the availability of a position for the Respondent at the level of Senior Constable. His Honour also recorded that concession in the First Judgment (at [339]).

  1. In the First Judgment, Walton J found (at [321]) that the Respondent had demonstrated a marked degree of immaturity which had resulted in him engaging in conduct well below that expected of a police officer. However, when the gravity of the misconduct was balanced against significant mitigating circumstances, his Honour concluded (at [322]) " by a fine margin " that the Respondent's removal was too harsh a consequence for his misconduct. Walton J took into account (at [323]), among other things, the Respondent's rehabilitation with respect to alcohol problems and the confidence that senior officers had expressed in his capacity to make a valuable contribution to the Force.

  1. Walton J noted (at [328]) that where a finding of harshness is made in review proceedings under s 181E of the Police Act, the primary remedy is reinstatement and that it is only where it is impracticable to reinstate the applicant that the other remedies provided by s 89 of the IR Act are available. An order for reinstatement would require the Respondent to be restored to his former position (at [330]).

  1. Walton J considered (at [330]-[331]) that it was impracticable to reinstate the Respondent to his former position as a Sergeant posted to Maclean Police Station and acting as a Sector Supervisor. Walton J gave these reasons (at [332]-[333]):

"332 I accept the [Respondent's] submission that there is no evidence from officers at the Grafton Police Station expressing difficulty with working with the [Respondent]. I would accept that the Police Force is an organisation of such a nature and size as to eliminate inhibiting factors that might affect an order for reinstatement in smaller or differently structured organisations ...
333 Having regard to the conclusions reached in this decision, however, I do not consider that it is appropriate to restore the [Respondent] to his former senior position. I do not preclude the possibility that, after the [Respondent] has the opportunity of confirming the effectiveness of his rehabilitation and giving effect to the faith that senior officers have in him, he may regain a more senior position. I do not consider, however, that, consistent with the proper management of the Police Force, the [Respondent] should, at this stage, be returned to a position of seniority of the kind that he held prior to his removal. Whilst he has demonstrated rehabilitation as to his alcohol problem, I have found that this factor does not entirely excuse his conduct, which involved a level of immaturity of character. Hence, I consider it is impracticable to reinstate the [Respondent] to the position and rank of a Sergeant of Police (carrying out senior duties such as Station Manager or Shift Supervisor). Indeed, I consider that one condition of his re-employment (to which I shall return) should be that he is not eligible for promotion for a period of 12 months ..."

  1. However, Walton J considered (at [334]) that an order for re-employment of the Respondent to the position of Senior Constable was " appropriate and practicable ". His Honour recorded (at [336]) that the parties accepted that " Senior Constable " was " another position " within the meaning of s 89(2) of the IR Act. He expressed his agreement with the position adopted by the parties.

  1. Walton J gave these reasons for making an order that the Respondent be re-employed as a Senior Constable:

"337 I do not consider that it is impracticable to re-employ the [Respondent] as a Senior Constable. As I have indicted above, it is practicable, in a general sense, to restore him to a position with the Police Force. The character references speak strongly in favour of that conclusion. The Commissioner did not rely on competence or integrity as grounds for the [Respondent's] removal. In terms of the consideration of "another position" for the purposes of s 89(2), I consider the position of Senior Constable is appropriate as it carries with it a fitting level of responsibility having regard to my findings as to the immaturity of the [Respondent's] conduct on 11 December 2008 and his subsequent rehabilitation and acceptance of responsibility.
338 Further, given the [Respondent's] employment history, including a lengthy period of service as a Senior Constable (and the subsequent occupancy of more senior positions), there is no proper basis to conclude that the [Respondent] is not suitable for the position of Senior Constable. There can be no real issue, in my view, about his capacity to perform the full range of duties of the position of Senior Constable, which is the next rank in descending order to that of Sergeant. To this may be added my earlier observations about his service record.
339 [The Commissioner] conceded that, in terms of the position of Senior Constable, it could not be suggested that there was any barrier associated with the availability of a position at Senior Constable rank.
340 Hence, I determine that, for the purpose of s 89(2) of the IR Act, it is not impracticable to re-employ the [Respondent] in another position, namely, the position of Senior Constable with the NSW Police Force. There are positions of Senior Constable available within the Police Force and, in my opinion, the [Respondent] is suitable for that position. Given the primacy to be afforded that remedy of re-employment and my findings as to the appropriateness of that remedy in this case, it should, subject to public interest considerations, be ordered.
341 I do not consider that the restoration of the service of the [Respondent] is contrary to the public interest. The same considerations, as earlier mentioned with respect to the public interest, are relevant here. There is a confident basis for the restoration of the [Respondent's] prior good service with the NSW Police Force without repetition of conduct of the type which has led to these proceedings. Additionally, I consider the integrity of the Police Force is maintained and protected by the public recognition of the [Respondent's] misconduct, the confirmation of the applicable codes or standards for off duty behaviour and the restoration of service at a lower rank with conditions."

  1. On the Commissioner's application for leave to appeal to the Full Bench of the IRC, his counsel sought to resile from the concession that the IRC had power under s 89(2) of the IR Act to order that the Commissioner re-employ the Respondent. The Full Bench permitted the Commissioner to advance the argument, but the majority rejected it.

THE COMMISSIONER'S SUBMISSIONS

Matters Not in Dispute

  1. The Commissioner's written and oral submissions ranged far and wide. It is convenient to commence by identifying matters that are not in issue or that cannot support the Commissioner's claim for relief in this Court.

  1. Mr Kimber SC, who appeared with Mr Taylor for the Commissioner, stated that the Commissioner was not challenging Walton J's findings (upheld by the majority of the Full Bench) that:

  • it was impracticable to reinstate the Respondent to his former position by reason of his conduct;
  • a position of Senior Constable was " available " to the Respondent for the purposes of s 89(2) of the IR Act; and
  • the Respondent was " suitable " for re-employment as a Senior Constable for the purposes of s 89(2).

  1. Despite disavowing any challenge to those findings, Mr Kimber's submissions frequently strayed into criticisms of the merits of the findings made and the conclusions reached by Walton J (and upheld by the majority of the Full Bench). It is neither necessary nor appropriate to consider those criticisms. Even if valid, they cannot establish that the IRC fell into jurisdictional error.

  1. Mr Kimber frequently referred in argument to the absence of any claim by the Respondent in the IRC proceedings for re-employment at a lower rank, as distinct from reinstatement. Mr Kimber appeared to imply that Walton J, by raising the issue of re-employment during final submissions, may have followed an irregular procedural course.

  1. The Commissioner does not challenge the decisions of Walton J or the Full Bench in this Court on the ground of a denial of procedural fairness. The absence of any such challenge is perhaps not surprising since the Commissioner's counsel was given the opportunity to respond to the suggestions put forward by Walton J in argument. Indeed there was a period of three weeks between the First and Second Judgments during which the Commissioner had the opportunity to add to the submissions made on his behalf at the hearing. In any event, no issue as to procedural fairness arises in the present proceedings.

  1. Mr Kimber also suggested in his oral submissions that some of the ancillary orders made by Walton J, notably Orders 4(e) and (f) (relating to eligibility for promotion and a final written warning), may have been beyond the IRC's power to impose. However, Mr Kimber accepted that the Commissioner's challenge is directed to the re-employment order (Order 1) and that there is no independent challenge to the ancillary orders. Of course, if the Commissioner's challenge to Order 1 succeeds, the ancillary orders must also fall.

The Contentions

  1. The Commissioner, as I understand his submissions, relies on two arguments.

  1. First, the Commissioner says that the IRC misconstrued s 89(2) of the IR Act by failing to read the provision as limited to the re-employment of a police officer to another equivalent or comparable position to that previously held. According to Mr Kimber, Parliament could not have intended the IRC, on review of a removal decision, to have the power to demote a police officer (much less to promote the officer). He accepted that a literal reading of s 89(2) supported the construction adopted by the IRC. However, he contended that the literal interpretation of s 89(2) should give way to the purpose or object of the legislation. He submitted that the object or purpose could not include giving power to the IRC " at large " to determine whether there were other positions available that could be suitable for the review applicant.

  1. Mr Kimber further submitted that to give s 89(2) of the IR Act its literal construction would conflict with or undercut the Commissioner's power of discipline conferred by the Police Act. Mr Kimber contended that the Police Act was, in effect, a code governing the demotion of a police officer for disciplinary reasons and it could not have been intended by Parliament that the IRC could exercise equivalent powers.

  1. Secondly, the Commissioner submitted that there was no evidence to support the IRC's finding that re-employment of the Respondent as a Senior Constable was appropriate and practicable. A finding that re-employment was practicable required evidence that the Respondent was capable of performing the duties of a Senior Constable and no such evidence had been adduced. Moreover, a minimum level of trust and confidence in the Respondent was required before he could be re-employed and there was no evidence that such trust and confidence existed or could be re-established.

REASONING

The Construction Question

  1. Section 181E(1) of the Police Act states that, subject to certain exceptions, the provisions of the IR Act apply to an application under Div 1C of Part 9 of the Police Act for review of a removal decision, in the same way that they apply to an application alleging unfair dismissal under Part 6 of Chapter 2 of the IR Act. Section 89 of the IR Act is within Part 6 of Chapter 2 of the IR Act. It applies to an application by a dismissed employee who claims under s 84(1) of the IR Act that his or her dismissal is harsh, unreasonable or unjust. Since none of the exceptions specified in s 181G(1) of the Police Act is presently relevant, s 89 of the IR Act applies to an application by a police officer under s 181E of the Police Act. (Section 89(7) of the IR Act is one of the specified exceptions, but it is immaterial for present purposes.)

  1. Section 89(1) of the IR Act empowers the IRC to order the employer (in this case the Commissioner) to " reinstate the applicant to his or her former position on terms not less favourable " than those that would have applied had the applicant been dismissed. To " reinstate " means to restore the applicant to the employment situation as it existed immediately before the applicant was removed from his or her position: Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; 221 CLR 539, at 544 [14], per McHugh J; at 549-550 [33]-[34], per Kirby J; at 552-553 [43]-[46], per Hayne J; at 565 [75], per Callinan and Heydon JJ. Section 89(1) does not confer power on the IRC to do anything other than reinstate the applicant to his or her former position and to do so on " terms not less favourable " than those the applicant previously enjoyed.

  1. Section 89(2) of the IR Act confers a different power on the IRC. If the IRC considers that " reinstatement " is impracticable, it may order the Commissioner to re-employ the applicant in " another position " that the employer has available and that, in the IRC's opinion is suitable. The ordinary meaning of " another position " is a position the duties and terms and conditions of which are not necessarily the same or similar to those previously enjoyed by the applicant. This understanding is reflected in the decision in Director-General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47; 77 NSWLR 159, where it was held that s 89(2) of the IR Act cannot be used to order an employer to re-employ a review applicant in the position he or she previously held: at 163[19], per Spigelman CJ (with whom Tobias JA and Handley AJA agreed).

  1. Section 89(2) of the IR Act does not impose any express limits in the position in respect of which an order for re-employment can be made, other than that the position be available and assessed as suitable. The provision does not say that the position must be equivalent or similar to the position previously held by the applicant. Nor does s 89(2) say that the re-employment must be on terms and conditions no less favourable than those enjoyed by the applicant prior to his or dismissal or removal. By contrast, s 170CH(3) of the Workplace Relations Act 1996 (Cth), considered by the High Court in Blackadder, contained just such language.

  1. Had Parliament intended that the power to order re-employment should be confined in the manner suggested by the Commissioner, it might have been expected to say so expressly. There were certainly many precedents that could have been used to achieve that result. Indeed, s 89(1) itself uses the expression " on terms not less favourable to the applicant ". The contrast between s 89(1) and s 89(2), which incorporates no such expression, is striking.

  1. It is a precondition to the exercise of the power in s 89(2) of the IR Act that the IRC considers it to be impracticable to reinstate the applicant. Thus the IRC can only order the re-employment of an applicant to another position if reinstatement is impracticable. In addition, s 89(2) requires the IRC to make findings that the employer has another position available and that the position is, in the IRC's opinion, " suitable ": Director-General (Health) v IRC, at 163-164 [20].

  1. The concept of suitability implies that the IRC must make a judgment as to whether the other position is appropriate, bearing in mind that reinstatement of the applicant to his or her previous position is not practicable. The judgment of the IRC as to suitability requires the circumstances of the case to be taken into account. Without being exhaustive, these will include the skills, experience and employment history of the applicant, including the conduct that led to his or her dismissal or removal. There is nothing in the language of s 89(2) indicating that a position can be " suitable " only if it is equivalent or similar to the position previously held by the applicant.

  1. Mr Kimber submitted that the object of s 89(2) was to provide for the case where reinstatement was impracticable because, for example, a position had been abolished and it would be unfair to deny an applicant whose dismissal was harsh the opportunity to be re-employed in an equivalent or similar position, provided one is available. Section 89(2) is clearly apt to cover such a case. But its language gives it a potential operation that is not confined to the particular situation identified by Mr Kimber.

  1. For these reasons, it is very difficult to see how s 89(2) is to be read as subject to an implied limitation that " another position " must be equivalent or similar to the position previously held by the applicant. The plain meaning of the provision is that, provided the necessary findings are made, the IRC may order the employer (including the Commissioner) to re-employ the applicant at a lower rank.

  1. Contrary to the Commissioner's submissions, I do not think that this conclusion involves any inconsistency or incongruity with the Commissioner's disciplinary powers under Part 9 of the Police Act. The Commissioner has power, if he or she determines that an officer has engaged in " misconduct ", to reduce the officer's rank or grade or to reduce the officer's seniority: s 173(2). A police officer affected by such action is entitled to apply to the IRC for a review of the order on the ground that it is beyond the power of the Commissioner or is harsh, unreasonable or unjust: s 174(1). The IRC therefore has a role to play in reviewing the Commissioner's decision to demote a police officer for disciplinary reasons. Consequently, the demotion of a police officer is not necessarily a matter to be decided exclusively by the Commissioner.

  1. In any event, the power conferred on the Commissioner by Part 9 of the Police Act is different from the power conferred on the IRC under s 89(2) of the IR Act and is exercisable in different circumstances. The Commissioner's power under Part 9 of the Police Act applies in relation to a serving police officer whom the Commissioner considers to have engaged in misconduct. The IRC's power under s 89(2) to order the re-employment of an applicant is exercisable in relation to a former police officer where:

  • the former officer has been removed from his or her position by the Commissioner;
  • the former officer seeks review of the decision under s 181E(1) of the Police Act;
  • a finding is made by the IRC that the removal is harsh, unreasonable or unjust (Police Act, s 18E(1));
  • the IRC considers that it would be impracticable to reinstate the former officer in his or her previous position (IR Act s 89(2));
  • the Commissioner has another position available (IR Act, s 89(2)); and
  • the other position is, in the IRC's opinion, suitable (IR Act, s 89(2)).

  1. It is true that the result of an application for review of a removal order may turn out to be the demotion of the review applicant. In that sense, the result may be much the same as if the Commissioner had exercised the power in the Police Act to reduce the officer's rank or seniority. But the process in each case is quite different and the criteria that must be applied by the relevant decision-maker are also quite different. The fact that s 181G of the Police Act expressly applies provisions of the IR Act to an application for review under s 181E is a clear indication that Parliament contemplated that the Commissioner's power to demote and the IRC's power to order an applicant to be re-employed in another position can co-exist. It is also a clear indication that Part 9 of the Police Act does not require an unexpressed qualification to be read into s 89(2) of the IR Act.

  1. Mr Kimber sought to gain comfort from the legislative history of s 89 of the IR Act. However, there is nothing in the legislative history that supports implying an unexpressed limitation into s 89(2). On the contrary, if anything, the legislative history tends to reinforce the conclusion that s 89(2) means what it says.

  1. Prior to 1991, s 20A of the Industrial Arbitration Act 1940 (" Industrial Arbitration Act ") empowered the IRC to make an award determining an industrial matter, including power to make an award:

"(a) in the case where an employer has dismissed an employee, directing the employer -
(i) to reinstate the dismissed employee in his old position or in a position less advantageous to the employee than that held by him prior to his dismissal." (Emphasis added.)

  1. The Industrial Arbitration (Unfair Dismissal) Amendment Act 1991 (" 1991 Act ") introduced into the Industrial Arbitration Act a regime providing for an individual worker who had been dismissed to seek an order for reinstatement or re-employment. The 1991 Act introduced s 91ZG of the Industrial Arbitration Act, which relevantly provided as follows:

"(1) A conciliation commissioner may determine a claim relating to dismissal by ordering the employer:
(a) to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed; and
(b) ...
(2) If the applicant has been dismissed and, when determining the claim, the conciliation commissioner considers that it would be impracticable to reinstate the applicant, the commissioner may order the employer:
(a) to re-employ the applicant, on terms and conditions determined by the commissioner , in another position that the employer has available and that, in the commissioner's opinion, is suitable; and
(b) ..." (Emphasis added.)

  1. Section 91ZG of the Industrial Arbitration Act was in substance re-enacted as s 250 of the Industrial Relations Act 1991 (" 1991 Act "). When the IR Act replaced the 1991 Act in 1996, the drafting of s 89(1) and (2) followed closely, although not precisely, the language of s 250 of the 1991 Act. Section 89 of the IR Act has not been amended in the 15 years since its enactment.

  1. It can be seen that s 91ZG of the Industrial Arbitration Act discarded the concept, previously incorporated in s 20A, of reinstatement to a " position not less advantageous " than that previously held by the applicant. Section 91ZG distinguished between reinstatement , which could only be to the applicant's former position (but on no less favourable terms), and re-employment , which could be " in another position ". The omission of quantifying words such as " not less advantageous " in s 91ZG(2)(a) suggests that a Commissioner could order an employer to re-employ an applicant in a less advantageous position than the one the applicant previously held. An example of a less advantageous position would be a position at a lower grade or rank, attracting a lower remuneration.

  1. Finally, Mr Kimber pointed to what he said was the absurdity of construing s 89(2) of the IR Act to empower the IRC to order the re-employment of a review applicant in a higher position than the one held at the time the applicant was dismissed or removed. It is not necessary in the present case to decide whether, as a matter of construction, s 89(2) permits such an order to be made. If it does, the IRC could order the re-employment of the applicant in a higher position only if it makes the necessary findings, including a finding that the position is " suitable ". In addition, the IRC would have to determine that it should exercise the discretion conferred by s 89(2) in favour of the applicant. It may be possible to envisage situations in which re-employment in a higher position is an appropriate exercise of power, particularly having regard to the narrow scope of the reinstatement power conferred by s 81(1) of the IR Act. But such cases would be very unusual. If s 89(2) of the IR Act permits an order for the re-employment of a review applicant to a higher position, it only does so in circumstances where there is a sound basis for such an order.

  1. For these reasons, the Commissioner's construction argument cannot succeed.

Practicability of Re-Employment

  1. The Commissioner's second argument seems to rest on the proposition that an order for the re-employment of an applicant to a lower position can be made only if the IRC finds that, in its opinion, re-employment in that position is " practicable ". Mr Kimber recognised that s 89(2) of the IR Act mentions practicability only by reference to an order for reinstatement. However, he relied on s 89 (5), which empowers the IRC to make an order for compensation if the IRC considers that it would be impracticable to make an order for reinstatement or re-employment. Mr Kimber submitted that s 89(5) supported the contention that the IRC had to be satisfied that it was practicable to re-employ the Respondent as a Senior Constable before a re-employment was made. Walton J expressly found (at [334]-[337]) that it was practicable to re-employ the Respondent as a Senior Constable. In view of that finding, Mr Kimber sought to establish a jurisdictional error by the IRC on the ground that there was no evidence to support the finding. The difficulty with that submission is that there clearly was evidence to support Walton J's finding.

  1. I am prepared to assume, without deciding, that the IRC would have made a jurisdictional error if it ordered re-employment of the Respondent to the position of Senior Constable without finding that, in its opinion, re-employment was " practicable ".

  1. Walton J pointed out that the Commissioner had not relied upon the Respondent's lack of competence or integrity as a ground for his removal from the Force. His Honour referred (at [325], [337]) to the references provided by senior officers who were familiar with the Respondent's work as a police officer. Walton J concluded, on the basis of these references, that the respondent had a valuable contribution to make to the Force in the future. Contrary to Mr Kimber's oral submissions in this Court, these references (nine in all) were not merely directed to the Respondent's general character. They attested specifically to the Respondent's competence, his knowledge of systems, his management skills, initiative, dependability and honesty in the performance of his duties.

  1. In finding that the re-employment of the Respondent was practicable, Walton J also took into account (at [338]) that no issue had arisen as to the Respondent's capacity to perform the full range of duties as a Senior Constable, Class Five. His Honour pointed out that the position of Senior Constable, Class Five was next in rank, in descending order, to that of a Sergeant. The Respondent's record as a serving officer, including his previous satisfactory service as a Senior Constable, demonstrated his capacity to perform the duties associated with that position. This was cogent evidence that it was not impracticable to re-employ the Respondent as a Senior Constable.

  1. In my opinion, having regard to the concessions made on behalf of the Commissioner at the hearing before Walton J, there was ample evidence to support his Honour's finding that, in his opinion, it was practicable to re-employ the Respondent in the position of Senior Constable, Class Five. The submission that there was no evidence to support that finding, must be rejected.

CONCLUSION

  1. The Commissioner's application for relief in relation to the decisions of the IRC must be dismissed. I propose the following orders:

1. The Commissioner's summons dated 24 August 2011 be dismissed.

2. The Commissioner pay the Respondent's costs of the summons.

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Decision last updated: 08 December 2011

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