O'Donnell v Queensland Police Service
[2015] QIRC 40
•3 March 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | O’Donnell v Queensland Police Service [2015] QIRC 040 |
PARTIES: | Mark O’Donnell v Queensland Police Service |
CASE NO: | B/2015/3 |
PROCEEDING: | Application for interlocutory orders |
DELIVERED ON: | 3 March 2015 |
HEARING DATE: | 12 February 2015 |
MEMBER: | Deputy President O’Connor |
ORDERS: | 1. The application is dismissed. |
| CATCHWORDS: | INDUSTRIAL LAW - APPLICATION FOR INTERLOCUTORY ORDERS - Application for the direction requiring the worker to attend a medical examination to be stayed pending the outcome of the final hearing and determination - Application dismissed. |
| CASES: | Industrial Relations Act 1999, s 230(4)(b) Police Service Administration Act, s 8.3(1) |
| APPEARANCES: | Mr M. Black, Counsel instructed by Gilshenan & Luton for the applicant. |
Decision from the bench
In dealing with this matter it is convenient to outline a brief chronology.
The applicant was sworn in as a police officer in 2001 and undertook policing duties until he was suspended from duty in about March 2009. The suspension was initially with pay, but from about August 2009 the suspension has been without pay.
In 2006, the applicant (in the course of his duties) assisted with the recovery of the bodies of murder victims. As a result of that, and over the ensuing two and a half years, the applicant developed post-traumatic stress disorder (PTSD). However, he continued working as police officer.
By June 2009, the respondent became aware through medical reports or certificates that the applicant had been diagnosed with PTSD. At that time, the respondent appears to have taken no action in respect of that information.
Between June 2009 and September 2012, the applicant was the subject of a criminal investigation, a committal hearing and two District Court trials in relation to the allegations made by his children.
All of the criminal charges were eventually finalised without conviction. In the trial involving his son, the applicant was found guilty of some of the charges and spent over 200 days in prison (until November 2011). On appeal, however, the convictions were overturned (and the charges subsequently dropped). In the trial involving his daughter, the applicant was acquitted. All of those criminal charges were finalised by 2012.
On 17 September 2012, the applicant pleaded guilty to a charge of assault/obstructing police and was fined $400. The charge arose out of an incident before the learned District Court Judge at Rockhampton following the applicant being found guilty of some charges.
On October 2013, the respondent issued a notice of disciplinary hearing containing (five disciplinary matters) and provided a brief of evidence to the applicant's solicitors.
Whilst the applicant denies the allegations against him, it is accepted that the allegations are of a serious nature and, if substantiated, are likely to lead to dismissal.
On 10 December 2014 the applicant lodged his written submissions to the disciplinary allegations with the respondent.
The respondent first gave the applicant notice of its intention to require a medical examination by way of a letter dated 2 October 2014. The respondent initially directed the applicant to attend a medical examination on l5 December 2014, but after an exchange of correspondence between the parties the respondent issued a fresh direction requiring a medical examination on 13 January 2015. After a conference held in this Commission, that date was vacated but a fresh direction now requires the applicant to submit to a medical examination on 13 February 2015.
The applicant filed an application in the Commission on 30 January 2014 seeking the following orders:
1. An interlocutory order under s 230(4)(b) of the Industrial Relations Act 1999.
2. The following decision:
(a)pending the final hearing and determination of this matter, the direction given by the Queensland Police Service requiring Mr O’Donnell to attend a medical examination at 9.00 am on 13 February 2015 be stayed; and
(b)pending the final hearing and determination of this matter, that Queensland Police Service is not to require Mr O’Donnell to attend a medical examination.
Section 8.3(1) of the Police Service and Administration Act (“the PSA Act”) relevantly provides as follows:
Section 8.3 Unfitness for duty on medical grounds
1. If the commissioner suspects on reasonable grounds that an officer—
(a) by reason of physical or mental infirmity is incapable of; or
(b) for any other reason pertaining to the officer’s health or condition, is unfit for the purpose of; performing the duties of office, or any other duties as an officer that the commissioner might reasonably direct the officer to perform, the commissioner is to advise the officer, in writing, of the suspicion and if upon receipt of such advice the officer does not accept the truth of the commissioner’s suspicion, the commissioner is to obtain medical opinion on the matter.
There is no dispute that the Commissioner or his delegate has the power under s 8.3 of the PSA Act to direct the applicant to submit himself to a psychiatrist for a medical assessment. Nor has it been argued before me that the Commissioner or his delegate could not have held the suspicion that he did.
The applicant submits that there is significant prejudice to the applicant if he is required to immediately submit to a psychiatric examination:
1. The psychiatric examination may lead to the applicant being dismissed on medical grounds, thereby rendering his time and resources spent defending the disciplinary proceedings nugatory.
2. If the applicant is dismissed on medical grounds before the disciplinary proceedings are decided, he will lose any entitlement to obtain back-payment of wages that he would otherwise have if the disciplinary proceedings were resolved in his favour.
3. The examination is likely to have an emotional toll on the applicant, along with the risk that the examination might be affected by the stress of the applicant being a position of awaiting the outcome of the unresolved disciplinary proceedings.
By contrast, it is argued that there is no prejudice to the respondent if it is prevented from immediately obtaining a psychiatric report in respect of the applicant.
It is argued that the existing suspension for disciplinary purposes prevents the applicant from taking up duties with the respondent, so there is no risk of him resuming those duties whilst the disciplinary decision is still pending. If the respondent resolves the disciplinary proceedings in the applicant's favour, the respondent will then have ample power to obtain the necessary medical examinations at that time.
Section 6.3(1) of the PSA Act gives the Commissioner a discretion as to whether or not an officer suspended from duty under s 6(1) should receive any wages and allowances for the period that the officer was under suspension.
I accept that the applicant would not have an automatic entitlement to seek a reimbursement of wages and allowances due to him under his period of suspension. I further accept that the applicant's medical condition during the period of suspension, in particular, his fitness for duty are relevant to the exercise of the discretion by the Commissioner.
The disciplinary proceedings and the powers conferred under s8.3 of the PSA Act are distinct and separate processes save to the extent that it may become relevant to the disciplinary process in order to determine the applicant is not adversely affected by the outcome of the disciplinary process.
I am of the view that once the commissioner or his delegate formed the necessary suspicion he is under an obligation to refer the applicant for medical assessment. It is, as the respondent submitted, the Commissioner discharging a duty and not merely exercising a discretion imposed on him under s 8.3(1). To that extent the question of fairness is not relevant.
The duty is to "obtain medical opinion on the matter".
Whilst I am of the view that the Commission has the power to grant a stay, I do not consider, on this occasion, that it appropriate for the Commission to interfere with the exercise of the Commissioners statutory powers. Accordingly, I dismiss the application.
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