Davidson v Commissioner of Police [2021] NSWIRComm 1067

Industrial Relations Commission New South Wales Medium Neutral Citation: Davidson v Commissioner of Police [2021] NSWIRComm 1067 Hearing dates: 1 September 2021 Date of orders: 1 September 2021 Decision date: 01 September 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Applicant's Notice of Motion is dismissed Catchwords: UNFAIR DISMISSAL – NSW Police Force – non-executive administrative employee – medical retirement – threatened dismissal – Notice of Motion seeking an interim order restraining dismissal Legislation Cited: Industrial Relations Act 1996 Police Act 1990 Cases Cited: Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Dhayanithi Sivathondan) and South Western Sydney Area Health Service [2002] NSWIRComm 98 Hill v Director-General of the Department of Education and Training (NSW) (1998) 85 IR 201 Public Service Association and Professional Officers Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW [2012] NSWIRComm 33 Texts Cited: Nil Category: Procedural rulings Parties: Zehra Davidson (Applicant) Commissioner of Police (Respondent) Representation: Mr A Wright, Industrial Officer, Public Service Association of NSW (Applicant) Ms E Baxter, Senior Associate, Kingston Reid (Respondent) File Number(s): 2021/00234480 Publication restriction: Nil

EX TEMPORE DECISION 1. Before the Commission is an Application for Relief in relation to Unfair Dismissal brought by Ms Zehra Davidson pursuant to s 84 of the Industrial Relations Act 1996 ("Application") Ms Davidson (hereafter the "applicant") has been employed in the New South Wales Police Force since 30 June 2010 as a non-executive administrative employee in the position of Client Support Clerk Grade 5/6, Digital Technology and Innovation. As such, the applicant is a member of the NSW Police Force (s 5 Police Act 1990). The respondent to the application is the Commissioner of Police. 2. On 20 August 2018, the applicant suffered a work-related injury which has been accepted for workers compensation purposes since that time. The applicant's injury has restricted the number of hours she is capable of working. Whereas previously she was employed on a fulltime basis working 35 hours per week, in her current situation she is restricted to working five hours per day, three days per week. 3. The respondent, has proposed that the applicant be medically retired pursuant to s 94B of the Police Act. Section 94B is in the following terms: 94B Retirement on medical grounds The Commissioner may retire a member of the NSW Police Force if— (a) the person is found on medical grounds to be unfit to perform or incapable of discharging the duties of the person's position, and (b) the person's unfitness or incapacity— (i) appears likely to be of a permanent nature, and (ii) has not arisen from actual misconduct on the part of the person, or from causes within the person's control. 1. In response to the proposal that she be medically retired, on 17 August 2021 the applicant filed the Application in the Office of the Industrial Registrar. The Application came before me for conciliation on 24 August 2021 but the matter did not settle in the conciliation conference. Consequently, on that date I made directions for the filing and serving of evidence and outlines of submissions by the parties and set the matter down for hearing before me on 4 November 2021. 2. On 30 August 2021 the applicant filed a Notice of Motion ("Motion"). The Motion was supported by an affidavit sworn by Andrew Wright, Industrial Officer of the Public Service Association of NSW, who has represented the applicant in the proceedings. The Motion sought that the Commission make an interim order that the applicant's employment not be terminated by medical discharge or otherwise or, in the alternative, an interim order that the applicant's position not be filled or deleted. 3. The respondent has opposed the making of the first order sought that the applicant not be terminated by medical retirement or otherwise but has proffered on the record an undertaking that her position will not be deleted or permanently filled until the hearing and determination the Application. 4. In support of its opposition to the Motion, the respondent has placed evidence before the Commission, by way of a sworn affidavit by Benjamin Urry, Senior Lawyer, Employment and Safety Law in the Office of the General Council of the Police Force, that, following the medical retirement of the applicant, she will receive the sum of $2,240 per week in workers compensation payments, which is in excess of the amount which she is currently earning by working three days per week, 5 hours per day. I have given consideration to that evidence in coming to my determination of this matter. 5. In addition, the respondent has submitted that the Commission lacks the jurisdiction to make an interim order of the sort set out in the applicant's Motion and has referred the Commission to a passage of a judgement of Justice Schmidt in the matter of Hill v Director-General of the Department of Education and Training (NSW) (1998) 85 IR 201 which, it was said, supports that submission. That passage is set out below: I am conscious of course of the difference between a statutory tribunal such as the Commission and a superior court of record, such as the Commission in Court Session. Yet it seems to me having reflected upon the matter, that the principles of statutory construction which must be applied to the Act in determining the limits of the powers and jurisdiction granted to the Commission, must be similar to those to be applied in determining the powers and jurisdiction granted to the Commission in Court Session by the same legislation. It would be a most peculiar thing after all if different rules of statutory construction were to be applied to the same statute in determining the powers and jurisdiction of the two bodies established by that statute. (emphasis added by the respondent 1. The submission put by the respondent was to the effect that, as the Commission no longer has jurisdiction to hear matters in Court Session and is a tribunal which is governed by, and limited by statute, the Industrial Relations Act ("Act") does not contain any express provisions permitting the Commission to make interlocutory orders in relation to a claim made under Part 6 of chapter 2 of the Act. I must say at the outset that I reject that submission. It is clear from her judgement in Hill that Justice Schmidt concluded that the Commission has power to make the orders sought in that matter, on an interlocutory basis, pursuant to s 89(7) of the Act. 2. It is well established that this Commission does have the power to make interim orders of the sort set out in the applicant's notice of motion and has done so on many occasions since the decision in Hill. 3. However, the test in all of those matters is whether or not the remedies that are available to an unfair dismissal applicant under the Act would be inadequate to repair the damage that a dismissal would inflict upon an applicant if it was not restrained. For example, in Hill the argument was that if the applicant in that matter was dismissed his name would be placed on the Department of Education's not-to-be-employed ("NTBE") list which could be retained in hard copy by principals of public schools, even if his name was subsequently removed from the list. That could have the effect of preventing him from gaining employment as a school teacher in the public school system. Justice Schmidt found that element distinguished that case from the usual unfair dismissal matter where the remedies of reinstatement or reemployment or monetary compensation are available as sufficient to redress the impact of a dismissal. 4. In cases such as Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Dhayanithi Sivathondan) and South Western Sydney Area Health Service [2002] NSWIRComm 98 and others involving medical specialists, the argument has been that a dismissal would have the effect of inflicting irreparable damage to the dismissed employee's reputation and character within the confines of the particular medical speciality. In a number of cases that has been seen as sufficient to order the restraining of a dismissal until the application is fully heard and determined. 5. A similar position was adopted by Justice Boland in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW [2012] NSWIRComm 33 where it was argued successfully that dismissal of the three prison officers in the circumstances of that matter would also inflict irreparable damage on their reputation and characters. 6. None of those issues arise in this matter. There is no suggestion that the applicant is being terminated for misconduct or for poor performance. There is no suggestion that her character and reputation will be impugned by her medical retirement. There is nothing that has been put to me on behalf of the applicant which takes this matter out of the general class of unfair dismissal matters whereby the final remedies available under the Act are seen as being sufficient and adequate if the unfair dismissal application is ultimately determined in favour of the applicant. 7. On that basis, I decline to make the orders sought in the Motion filed on 30 August 2021 but, as I have already said, I do so on the basis of the undertaking given by the respondent that the applicant's position will not be deleted or permanently filled until her application for unfair dismissal is fully heard and determined. 8. I order that the applicant's Motion be dismissed. John Murphy Commissioner