Industrial Relations Commission New South Wales Medium Neutral Citation: Davidson v Commissioner of Police (No. 2) [2022] NSWIRComm 1000 Hearing dates: 4 November 2021 Date of orders: 11 January 2022 Decision date: 11 January 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Application dismissed Catchwords: UNFAIR DISMISSAL – medical retirement pursuant to s 94B of the Police Act – applicant capable of performing part-time work for five hours per day three days per week – reasonable adjustments – whether it is practicable for the Commissioner of Police to employ the applicant on a part-time basis ongoing Legislation Cited: Anti-Discrimination Act 1977 Industrial Relations Act 1996 Personal Injury Commission Act 2020. Police Act 1990 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Cansino v South Western Sydney Area Health Service (1998) 130 IR 1 Colefax v Secretary, Department of Education [2018] NSWIRComm 1033 Texts Cited: "Consensus Statement on the Health Benefits of Good Work" by the Royal Australasian College of Physicians. "Guidance Note for Best Practice Rehabilitation Management of Occupational Injuries and Diseases [NOHSC:3021(1995)]" which has been adopted by the National Occupational Health and Safety Commission. "Guidelines for workplace return to work programs" by the State Insurance Regulatory Authority. "Workers compensation guidelines" by the State Insurance Regulatory Authority. "Reasonable Adjustments" by Comcare. Category: Principal judgment Parties: Zehra Davidson (Applicant) Commissioner of Police (Respondent) Representation: Mr A Wright, Industrial Officer, Public Service Association (Applicant) Ms L Shanahan, Solicitor, Kingston Reid (Respondent) File Number(s): 2021/00234480 Publication restriction: Nil decision 1. Before the Commission is an Application for Relief in Relation to Unfair Dismissal (Application) which was filed by the applicant, Zehra Davidson, on 17 August 2021 pursuant to s 84 of the Industrial Relations Act 1996 (IR Act). At that time, the applicant was still employed by the respondent, the Commissioner of Police, as an Account Manager pursuant to the Crown Employees (NSW Police Force Administrative Officers and Temporary Employees) Award 2009. However, the applicant was facing a threatened dismissal by way retirement by the respondent on medical grounds pursuant to s 94B of the Police Act 1990 (Police Act) which 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. A conciliation conference was convened by me on 24 August 2021 but the matter was not settled on that occasion. As a consequence, I made certain directions for the filing and serving of witness statements and outlines of submissions. 2. On 30 August 2021, the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA), on behalf of the applicant, filed in the Commission a Notice of Motion (Motion) which sought the following: The making of an Interim Order that the Applicant's employment not be terminated by medical discharge or otherwise. Or in the alternative: The making of an Interim Order that the Applicant's position not be filled or deleted. 1. The Motion was supported by an affidavit sworn by Andrew Wright, Industrial Officer of the PSA. It was opposed by the respondent. 2. By way of an ex tempore decision made by me on 1 September 2021, I declined to make the orders sought in the Motion but did so on the basis of an undertaking that was given to the Commission by the respondent that the applicant's position would not be deleted or permanently filled until the Application was fully heard and determined. I also took into account that, following her medical retirement, the applicant would be entitled $2,240.00 per week by way of workers compensation payments, which was in excess of the amount that she had been earning to that point working three days per week for five hours per day. 3. The applicant was medically retired with her last day of service being 2 September 2021. Background 1. The applicant commenced employment with the NSW Police Force in 2011 as a Customer Service Officer/Account Manager. In 2014, the applicant was placed on temporary contracts in the position of Senior Account Manager. 2. The applicant suffered a number of work-related injuries which she described in her witness statement in the following terms: Circumstances of the injury 3. I sustained injuries to my right elbow, right wrist/hand and neck as a result of performing general administrative duties including typing and mousing. My reported date of arm injury is 20 August 2018, however my right arm pain has emanated from an RSI injury in 2011. The reported date of my neck injury is April 2020. Workers Compensation 4. The insurer accepted liability dating from 2018 for the arm/wrist injury and 2020 for the neck. I am currently receiving workers compensation payments. Medical restrictions 5. I have been on restricted hours since 2018, most recently working 15 hours per week over 3 days since January 2020. I can manage my condition by taking breaks if I don't work full time. I do this by rationing typing and mousing. Recent WorkCover Certificates of Capacity for my wrist and neck injuries showing my current restrictions is filed with this statement... Return To Work Plan 6. In March 2021, DTI (Digital Technology and Innovation) Command referred me to the Deployment Unit. The Deployment Unit declined to provide assistance, on the grounds that no positions existed outside DTl which could accommodate my restrictions… 7. My Injury Manager prepared a final Return To Work Plan, including my permanent restrictions and with a Return To Work goal of different job/different employer. 8. On 2 July 2021, I rang my Injury Manager contesting the decision to change my return to work goal from same job same employer to different job different employer in my RTW Plan. I was advised that this was not her responsibility and that I should speak to the Transition Unit. I sent a follow-up email to her, repeating my concerns about the changed Return To Work Goal and asking for consideration of reasonable adjustment by working part time... She replied giving me the contact details of the Transition Unit. The PSA contacted the Transition Unit later in July with a request for a meeting, which was declined. 9. At no stage has anyone from the Police Force discussed part time work with me. Performance Statistics 10. I am a highly motivated and productive worker. Since the start of the COVID pandemic, I have been working from home. For a lot of that period, I have not been receiving proper taskings and have had to pick up jobs directly from the service desk queue. Nevertheless, I have continued to do my share of the work. 11. Shortly before I finished up, my manager sent me statistics showing the number of tickets processed by our team between January 2020 and August 2021… The ticket numbers show that, over a period of 20 months, while I was working 43% of full hours, I did more than 43% of the jobs done by my colleagues who were working full time. 12. Between 3/20 to 8/21 I did 59% of the tickets done by Justin and 80% of the tickets done by Michael. Between 1/21 to 8/21, I did 45% of the tickets done by Emila. 1. The WorkCover Certificates of Capacity which the applicant referred to in paragraph 5 of her witness statement state that she "has capacity for some type of employment" for "5 hours/day 3 day/week", with certain other restrictions. Case for the applicant 1. Shortly stated, it was the applicant's case that she should be reinstated to her former position but on a part-time basis consistent with her medical restrictions, five hours per day, three days per week. It was put on her behalf that the respondent's failure to employ the applicant on this basis constituted a breach of the Workplace Injury Management and Workers Compensation Act 1998 (WIMWC Act) , in particular s 49 of that act, as well as a breach of the Anti-Discrimination Act 1977 (AD Act), in particular ss 49D(2)(c) of that act. 2. The Application was supported by evidence from Shay Deguara, Manager Industrial Support team at the PSA. Mr Deguara referred to the following documents: a. "Consensus Statement on the Health Benefits of Good Work" by the Royal Australasian College of Physicians. b. "Guidance Note for Best Practice Rehabilitation Management of Occupational Injuries and Diseases [NOHSC:3021(1995)]" which has been adopted by the National Occupational Health and Safety Commission. c. "Guidelines for workplace return to work programs" by the State Insurance Regulatory Authority. d. "Workers compensation guidelines" by the State Insurance Regulatory Authority. e. "Reasonable Adjustments" by Comcare. 1. Under cross-examination, Mr Deguara conceded that none of the above listed documents imposed any legal obligations on the respondent with respect to the employment of the applicant. 2. In addition, the Application was supported by a witness statement by Rebekah Hattch, a full-time General Administrative Support Officer at Nepean Police Area Command. Ms Hattch gave evidence that she had been asked to accept part-time employment to manage her medical condition. 3. The applicant also relied upon a witness statement by Kathryn Meyer, Change Manager, Mobility Support, Digital Technology and Innovation (DTI). Ms Meyer had worked with the applicant in the Client Support Team for over ten years. She gave evidence about the applicant's capacity as an employee. Ms Meyer also expressed her opinion that an employee in the position of the applicant could work effectively on a part-time basis and gave some examples of other employees who were permitted to work on a part-time basis. 4. The applicant relied upon a written outline of submissions which was filed on her behalf and which contained the following: 1.The applicant submits that, in terminating Ms Davidson's employment after failing to consider and offer ongoing suitable work with reasonable adjustment in the form of part time work to Ms Davidson, the respondent has breached both the Workplace Injury Management and Workers Compensation Act and the Anti-Discrimination Act. Workplace Injury Management and Workers Compensation Act 2. Section 49 of the Workplace Injury Management and Workers Compensation Act 1998 provides as follows: 49 Employer must provide suitable work (1) If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker. Maximum penalty-50 penalty units. (2) The employment that the employer must provide is employment that is both suitable employment (as defined in section 32A of the 1987 Act) and (subject to that qualification) so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was at the time of the injury. (3) This section does not apply if- (a) it is not reasonably practicable to provide employment in accordance with this section, or (b) the worker voluntarily left the employment of that employer after the injury happened (whether before or after the commencement of the incapacity for work), or (c) the employer terminated the worker's employment after the injury happened, other than for the reason that the worker was not fit for employment as a result of the injury. 3. The materials provided with the statement of Shay Deguara demonstrate that the aim for return to work in this case should have been same job/same employer. The decision of the employer to change the return to work aim to different job/different employer was made without consultation with the employee. Ms Davidson sent an email to the employer indicating that she did not agree with the decision, but she received no reply. 4. The Applicant's evidence shows that it was reasonably practical for the Police Force to provide ongoing suitable duties as same job/same employer for Zehra Davidson after she reached Maximal Medical Improvement. These duties could take the form of allowing Ms Davidson to work permanent part time for approximately 15 hours in her substantive position as Account Manager. The Applicant's evidence shows that provision of these duties is reasonably practical. 5. Section 49 specifically requires an employer to provide suitable duties in the form of part time work. By failing to provide ongoing suitable duties in the form of part time work, the Police Force has breached the Workplace Injury Management and Workers Compensation Act. 6. The Police Force Injury Management Procedures in Section 6.1 define pre-injury duties as same location, duty type and hours that the employee was performing before the injury was sustained. This policy does not correctly reflect the Police Force's legal obligations to provide part time work for injured workers where appropriate. Anti-Discrimination Act 7. Zehra Davidson's medical restrictions as detailed in The Applicant's evidence are a disability as defined in s4 of the Anti-Discrimination Act 1977, which defines a disability as: "disability" means-total or partial loss of a person's bodily or mental functions or of a part of a person's body ... 8. Section 49D paragraph (2) (c) of the Anti-Discrimination Act provides: 49D (2) It is unlawful for an employer to discriminate against an employee on the ground of disability- [....] (c) by dismissing the employee 9. The Police Force has terminated Ms Davidson's employment by medical discharge. This termination constitutes a dismissal for the purposes of the above provision. 10. The prohibition in Section 49D paragraph (2) (c) is limited by Section 49D subsection (4), which provides as follows: (4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability- would be unable to carry out the inherent requirements of the particular employment, or would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer. 11. The particular employment for the purposes of this provision is the position of Client Support Officer in the DTI Command. 12. The Applicant's evidence shows that the applicant is capable of carrying out the inherent requirements of the position for 15 hours per week. The evidence shows that the Police Force has policies including the Flexible Work Arrangements Guidelines and Procedures for permanent part time work which would allow the Applicant to reduce her hours on a permanent basis to 15 hours per week. 13. The evidence shows that, under the Flexible Work Arrangements Guidelines and Procedures, the Police have a process for splitting a full time position into two part time positions. The fact that they have refused to consider or do this for an injured worker is unlawful direct disability discrimination. 14. The Statement of Rebekah Hattch shows that part time has been proposed for another police employee with a chronic condition. The statement of Kathy Meyers shows that other staff in DTI have been allowed to work part time over the years. 15. In refusing to allow Ms Davidson to work part time when it has allowed non-disabled employees to work part time, the Police Force has discriminated against Ms Davidson on the grounds of her disability. Unfair dismissal 16. The Applicant's evidence shows that Ms Davidson has been medially retired after the employer refused to discuss reasonable adjustment in the form of permanent part time. 17. The employer is in breach of a statutory duty under the Workplace Injury Management and Workers Compensation Act 1998 to provide suitable work and has discriminated against Ms Davidson on the grounds of her disability. The termination is thus contrary to law. 18. An employer-initiated medical discharge in these circumstances meets all the requirements for an unfair dismissal. It would be harsh in its financial effects, it would be unreasonable as based on a flawed decision-making process and it would be unjust as contrary to law. 19. The employer has undertaken not to fill Ms Davidson's position pending the outcome of these proceedings. Reinstatement is therefore possible and, it is submitted, practical. Orders Sought An order that Ms Davidson be reinstated to her position as Client Service Officer subject to the following conditions: That Ms Davidson make application within 14 days of reinstatement for permanent part time work for 14 hours per week or such other hours as are agreed between the parties. 1. Mr Wright of the PSA elaborated upon this outline of submissions at the hearing of the matter on 4 November 2021. Case for the respondent 1. The respondent relied upon an affidavit sworn by David Driver, Superintendent of Police who held the position of Commander, Workforce Safety Command within the Human Resources Command of the NSW Police Force. In his affidavit, Superintendent Driver explained his role as delegated decision maker in relation to the medical retirement of employees pursuant to s 94B of the Police Act. Superintendent Driver's affidavit contained the following: 4. In the case of Ms Davidson, having reviewed the file, I was satisfied that the elements of section 94B of the Police Act were met. A copy of the file I reviewed is annexed to this affidavit and marked "DD-2". 5. In coming to this view, I particularly had regard to the medical information contained in the file that stated that Ms Davidson had reached maximum medical improvement and that her restrictions were permanent, as well as the fact that Ms Davidson has not performed her full-time role since August of 2018, other than for a brief period in January 2019. 6. I understand that Ms Davidson says that she should have been placed in a part time position instead of being medically retired. Any part time arrangement, or the decision to refer an employee for medical retirement, is a matter for her substanstive Command. At the time I made my decision to medically retire her, I considered whether the elements of s94B of the Police Act were met. I was satisfied that the elements were met in that Ms Davidson was unfit to perform or otherwise incapable of discharging the duties of her position, being a full time role. 1. Annexure DD-2 to Superintendent Driver's affidavit is an extensive file on the applicant titled "Medical Retirement Review" which contained a number of medical reports which confirmed that the applicant was only capable of performing her role for five hours per day, three days per week and that she had "reached maximum medical improvement for her injury". 2. The respondent also relied upon an affidavit of Emmanuel Rivera, Manager Field Support, Client Services and Engagement, DTI, which contained the following: Ms Zehra Davidson Ms Davidson held the position of Client Support Officer within the DTI Command. The role is a Clerk Grade 5/6 under the Crown Employees (NSW Police Force Administrative Officers and Temporary Employees) Award 2009. Ms Davidson's position was a full-time, 35 hour per week role… 4. In broad compass, the role of Client Support Officer engages directly with customers of DTI directly. By 'customers', I mean Commands of the NSWPF. Ms Davidson's role involves travelling to the Commands, meeting and discussing the technology requirements of the Commands, informing them of new technology and reporting back to DTI so that required technology can be rolled out. 5. Until approximately September 2020 the Client Support team in the DTI Command was made up of three employees. The various NSWPF Commands were allocated amongst those employees as their 'portfolio'… 6. Following decreases in Ms Davidson's capacity to perfom her role, which I return to below, the portfolios were reallocated and Ms Davidson was no longer required to travel to Commands... 7. Since the Covid-19 pandemic and as a result of stay-at-home orders in NSW, the Client Support team has been more limited in the way that they are able to perform their roles. By this I mean that they have been unable to travel to the Commands in their portfolios as I set out in paragraph 4 above. 8. As a result of these travel restrictions, the Client Services team has been assisting with what I could call "business as usual" information technology support. This has involved with Client Services team assisting with general information technology problems and issues that might arise for officers and employees of the NSWPF. These are tasks usually performed by the Service Desk Team within our business unit. 9. When an officer or employee of the NSWPF has an information technology issue, they will usually report that issue by lodging a ticked through the relevant portal on the NSWPF intranet. A member of the Service Deskteam would usually respond to that issue and then once the problem is resolved, close the ticket. As I set out above, the Client Services team has currently been assisting with these tasks. 10. Based on my knowledge gained in my position, I would estimate that a Client Support Officer could spend up to 2 hours driving depending on location of Command site visit and 3 to 4 hours typing a day on average. These are primary tasks that are necessary to perform the role of Client Support Officer. Ms Davidson's Injury 11. I first became involved in the primary management of Ms Davidson's injury in or around end of November 2020 when Mr Michael Chesworth, Manager Client Services Team retired. Prior to his retirement, Mr Chesworth had been responsible for the management of the Client Services Team along with other teams within Client Services & Engagement business unit. 12. When I took over managing Ms Davidson's case in around the end of November 2020, I had a conversation with the then Commander of DTI, Superintendent Martin Hayston to the following effect: Me: Boss, I'm happy to take over this matter now that Michael Chesworth has resigned. Where do you think this is going? Can Zehra continue as she is? Mr Hayston: Well she's not been doing her full duties for a long time now. I don't think the team can sustain her hours. I think we need to refer Zehra to transition. Me: Ok, I will start talking to her about it. 13. From my conversation with Superintendent Hayston, I was under the impression that the part-time arrangements that Ms Davidson was working could not be sustained permanently. 14. In my capacity as Manager Field Support, Client Services and Engagement, while Ms Davidson did not have a direct reporting line to me, I could see and had knowledge of the way the Client Services team worked. In my view, it would not be sustainable to have Ms Davidson perform the role of Client Services Officer on a part-time basis because I do not believe that the Commands within her portfolio would receive the support that was needed on a part-time basis. 15. In my view, a job-share arrangement would also not be appropriate for a number of reasons including: a) Ms Davidson's hours of work each week did not amount to a full day's work on any day. This would mean that on the days that Ms Davidson was working, Commands within her portfolio would not have the support for a full day shift; b) The Command could not employ someone to perform 2 hours a day for 3 days per week to cover the hours Ms Davidson could not perform; c) If another employee was engaged on the same days as Ms Davidson this would advsersly affect the Command's budget through two people being paid for the same job; d) It would be difficult to advertise for a two day per week employee to cover the days that Ms Davidson did not work; e) A job sharing arrangement would mean that the two employees would need to have at least two hand overs a week, depending on how the shifts were allocated; Statement of Zehra Davidson 16. I have read the statement of Ms Davidson dated 14 September 2021. 17. In relation to paragraph 9 of Ms Davidson's statement, to the best of my knowledge, Ms Davidson never made any request directly to me, for a flexible working arrangement or applied for any positions within the NSWPF that might have been advertised on a part-time basis. 18. In response to paragraphs 10 to 12 of Ms Davidson's statement, I refer to paragraphs 7 to 9 above as to these duties. Further, the nature of these duties can vary from simple tasks that may only take a few minutes to complete, or more complex tasks that may take a few days/hours to complete. Accoringly, the number of tickets completed by Ms Davidson, … is not necessarily an indication of the time spent working, the nature of the assistance provided, or the complexity of the task performed. The figures … also do not show what other work might be performed by Ms Davidson or other members of her team. 1. Mr Rivera also responded to the witness statements of Ms Hattch and Ms Meyer. 2. The respondent also relied upon a written outline of submissions which contained the following (footnotes omitted): 2.7 On 11 August 2020, the Applicant was certified as having reached 'maximum medical improvement' and having permanent restrictions on the duties to be performed. 2.8 In or around April 2021, the Applicant was referred to the Respondent's Deployment team for consideration as to whether the Applicant could be redeployed to another position in line with her permanent medical restrictions. In around May 2021, the Deployment team declined the referral on the basis that the Applicant's permanent restrictions meant that there was no reasonable prospect of finding the Applicant suitable alternative employment. 2.9 In or around June 2021, the Applicant's return to work goal was varied to different job with a different employer, in view of the Applicant's permanent restrictions. 2.10 On 20 July 2021 the Applicant was advised that she would be referred to the Transition team for consideration of medical retirement. The Applicant was advised that she had the opportunity to provide any relevant information as to why section 94B of the Police Act does not apply within 28 days or the Delegate's consideration. The Applicant did not provide any such submission. 2.11 On 19 August 2021, the Delegate, Superintendent David Driver, decided, pursuant to s 94B of the Police Act to medically retire the Applicant with effect from 2 September 2021. 2.12 The Respondent understands that the following matters are not in dispute between the parties: (a) The Applicant suffered injuries to her neck and wrists; (b) Those injuries were the subject of successful workers compensation claims; (c) The injuries required adjustments to the Applicant's work; (d) The injuries meant that the Applicant could not carry out the inherent requirements of her position, including performing her work on a full time basis; (e) The Respondent so adjusted the Applicant's work between August 2018 and the date of her termination on 2 September 2021; (f) Those adjustments were implemented pursuant to the requirements of the workers compensation legislation arising from the Applicant's successful workers compensation claims; (g) The Applicant's injuries are permanent and would require permanent modification of her duties. 2.13 The Respondent understands the Applicant's position to be that the Respondent should have provided the Applicant with part time work on a permanent basis rather than terminating her employment. The Respondent submits that this would require either a permanent modification to the duties of the Applicant's position or alternatively, the creation of a new position in which the Applicant could be employed. 1. The outline of submissions then set out s 94B of the Police Act and continued as follows: 3.2 The Respondent does not understand it to be in dispute that the requirements of s 94B of the Police Act are satisfied. 3.3 In Clarke v Health Health Secretary (Justice Health and Forensic Mental Health Services) [2021] NSWIRComm 1022, Chief Commissioner Constant considered the applicability of the unfair dismissal provisions in circumstances where an employee has been terminated due to medical incapacity: 19. It is clear that a person whose employment has been terminated on "medical grounds" is entitled to seek relief under section 89 of the Act if it can be demonstrated that the termination was effected in a manner which rendered it harsh, unreasonable or unjust.. And considered that the question of whether the applicant in that case, was medically unfit was a question that went to whether there was a valid reason for termination, further finding: 31. A long term medical illness or injury that prevents an employee from performing the inherent duties of the position for which he or she is employed constitutes a valid reason for termination: Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [44]. However, the failure by an employer to take reasonable steps to accommodate the employee's limitations may render a termination harsh, unjust or unreasonable: Riley v WorkCover Authority of New South Wales (2006) 151 IR 396 at [80]. 4. Harsh, Unreasonable or Unjust 4.1 To be entitled to any remedy, the Applicant bears the onus of establishing that the dismissal was harsh, unreasonable or unjust. 4.2 The Respondent submits that the medical retirement of the Applicant was not: (a) unjust because the Applicant was unfit or incapable of discharging the duties of her position. She was afforded procedural fairness at all times. (b) unreasonable because the Applicant had been unable to perform the full functions of her substantive position since August 2018. The Applicant's medical retirement was consistent with the s 94B of the Police Act and the Respondent's procedures and policies. (c) harsh because the Applicant's incapacity was of a permanent nature. Further, in circumstances where a medical retirement cannot be regarded as punishment, consideration of whether the dismissal was 'harsh' is not appropriate. 4.3 In determining whether a dismissal is harsh, unreasonable or unjust, the Commission may consider the matters set out in section 88 of the IR Act, which include: (a) whether a reason for the dismissal was given to the applicant; (b) if any reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for the behaviour or to justify the reinstatement; (c) whether a warning of unsatisfactory performance was given before the dismissal; (d) the nature of the duties of the applicant immediately before the dismissal; and (e) whether or not the applicant requested reinstatement or re-employment with the employer; and (f) such other matters as the Commission considers relevant. 4.4 In light of all the factors the termination of the Applicant's employment was not harsh, unreasonable or unjust. We deal these factors below: Notice of the reason for dismissal 4.5 The Applicant was notified of the reasons for her dismissal in the letter of 20 July 2021 advising the Applicant that she was being referred for consideration of medical retirement, and the letter of 19 August 2021 advising the Applicant that she was being medically retired pursuant to s 94B of the Police Act. Nature of reason for dismissal and whether the reason had basis in fact 4.6 As addressed above, the Applicant was dismissed pursuant to section 94B of the Police Act. 4.7 There appears to be no dispute that the requirements of s94B of the Police Act were satisfied at the time the Delegate made the decision. Opportunities to make out a defence 4.8 The Applicant was given an opportunity to provide any further or relevant information as to why s94C of the Police Act was not applicable to her prior to the Delegate making a decision as to whether to medically retire her. 4.9 The Applicant did not provide any further information. Whether a warning of unsatisfactory performance was given before the dismissal 4.10 The Applicant's dismissal was not related to unsatisfactory performance. The Commission need not consider this factor. Other relevant matters 4.11 The Commission is empowered, in determining the Applicant's claim, to consider any other relevant matters. The Applicant's submissions suggest that the Commission should consider the application of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) and the Anti-Discrimination Act 1977 (NSW) (AD Act). The Respondent submits that a consideration of these factors does not lead to a conclusion that the Applicant's dismissal was harsh, unjust, or unreasonable. We address the application of those statutes in detail below. 4.12 ln must be noted that the power of the Respondent to medically retire the Applicant is derived from s94B of the Police Act as extracted above. There is no requirement in that statutory provision for the Respondent to consider, where a person is found to be suffering from a permanent incapacity or unfitness and cannot discharge the duties of the person's position, whether they are capable of performing a different position. 4.13 The Respondent understand that the Applicant remains in receipt of workers compensation payments and this is a factor to which the Commission may have regard. Additionally, the ongoing benefits associated with the Applicant's workers compensation claims mean that the workers compensation insurer can look for alternative employment for the Applicant in line with her capacity and restrictions. These are factors the Commission may consider against the proposition that the Applicant's dismissal was harsh, unreasonable, or unjust. 4.14 The process in leading to the dismissal decision complied with the Respondent's policies and procedures. 5. Workplace Injury Management Act 5.1 The Applicant submits that the Respondent has breached s 49 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) by "failing to provide ongoing suitable duties in the form of part time work": AS [4]. 5.2 S 105(1) of the WIM Act provides: Subject to this Act, the [Personal Injury] Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act. 5.3 The Respondent, firstly denies breaching s 49 of the WIM Act, and secondly, submits that would necessarily require an impermissible trespass by this Commission into the exclusive jurisdiction of the Personal Injury Commission. 5.4 This Commission does not have jurisdiction to determine or examine whether the Respondent has breached s 49 of the WIM Act. 6. Anti-Discrimination Act 6.1 The Commission is required, pursuant to s 169 of the IR Act to take into account the principles contained in the Anti-Discrimination Act 1977 (NSW) (AD Act). 6.2 In Stephen York v NSW Department of Education and Communities [2015] NSWIRComm 37 at [71], the Full Bench considered the application of s 169: Section 169 has been held to impose a mandatory obligation to take into account the principles in the Anti-Discrimination Act but not to dictate any particular outcome or result: New South Wales Lotteries Corporation v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2003] NSWIRComm 143 at [8]. Upon that provision, the principles of the Anti-Discrimination Act are to be treated as a fundamental consideration in the decision-making process: Re Nursing Homes, & Nurses' (State) Award and Others Awards [2001] NSWIRComm 298 ('Nursing Homes and Nurses' Award'). It is the 'principles' of the Anti-Discrimination Act that are to be taken into account under s 169(1). Given that Act does not contain any provisions which are in terms described as its principles, nor is the word 'principles' a term commonly used in law to refer to the provisions of a statute or any particular part of a statute, the use of the word ins 169(1) seems directed at picking up the foundational concepts of the Anti-Discrimination Act, that is both the express provisions of the Act and the broader conceptual framework: Nursing Homes and Nurses' Award. 6.3 At AS [9], the Applicant submits that her medical discharge constitutes a dismissal for the purposes of section 49D(2)(c) of the AD Act. The Respondent accepts that this is so. 6.4 S 49D(4) of the AD Act relevantly provide a complete defence to unlawful discrimination pursuant to s 49D(2)(c): (4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person an the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability- (a) would be unable to carry out the inherent requirements of the particular employment, or (b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer. 6.5 The Respondent submits that this defence is made out. 6.6 The inherent requirements of the Applicant's position are set out in the affidavit of Emmanuel Rivera. The inherent requirements include (relevantly for these purposes but not exhaustively): (a) that the position be performed on a full-time basis; (b) driving between Commands; (c) keying and typing. 6.7 There is no dispute between the parties that the Applicant cannot perform the position on a full-time basis and that the Applicant is restricted in terms of driving and keying and typing. 6.8 The Applicant submits that she is able to perform her duties on a part-time basis and that in "refusing to allow [the Applicant] to work part-time when it has allowed non­disabled employees to work part time, the [Respondent] has discriminated against [the Applicant] on the grounds of her disability": AS [15]. 6.9 There are a number of points to be made in respect of that submission. 6.10 Firstly, it appears that the Applicant's submission is that allowing the Applicant to perform her duties on a part time basis is a "service or facility" that the Respondent could reasonably have provided. 6.11 S 49D(4)(b) does not require an employer to provide an employee with alternative or light duties. Further, it does not require the employer to modify the inherent requirements of the position in order to maintain an employee's employment. 6.12 Employing the Applicant on a part time basis would require the creation of a new position within the Respondent's organisation, or the employment of another person to perform the duties not performed by the Applicant. 6.13 The provision of an alternative position for the Applicant to perform when she could not meet the inherent requirements of the position of Customer Service Officer or making modifications to the inherent requirements of the position of Customer Service Officer so that the Applicant could remain in employment is not a service of facility contemplated by s 49D(4)(b) of the AD Act. It follows that the Respondent was not required, pursuant to that act, to modify or alter the Applicant's employment in this way. 6.14 ln the alternative, if it is determined that the requirement to perform the position on a full time basis is not an inherent requirement (which for the avoidance of doubt, is not conceded by the Respondent), to allow the Applicant to perform the position permanently on a part-time basis would constitute an unjustifiable hardship on the Respondent for the reasons set out in paragraphs [13] to [15] of the affidavit of Emmanuel Rivera. What constitutes an 'unjustifiable hardship' is set out in s 49C of the AD Act. 6.15 To this end, the Respondent's policies relied on by the Applicant do no assist as they create no obligation on the Respondent to permanently offer part time employment. 6.16 Secondly, comparative evidence of the circumstances of other employees who may have been permitted to work or offered part time arrangements is not useful nor determinative of the question of whether s 49D(4) is satisfied. The evidence sought to be relied upon by the Applicant in this respect is irrelevant to the proceedings presently before the Commission. 6.17 Based on the evidence before the Commission, no breach of the AD Act by the Respondent can be made out. Therefore, unlawful discrimination against the Applicant is not a factor to be considered in whether the Applicant has been unfairly dismissed. 1. The outline of submissions then canvassed the issue of remedy. I have not found it necessary to deal with this aspect of the case for the respondent. Case in reply for the applicant 1. The applicant relied upon a further witness statement made by her in which she took issue with some aspects of Mr Rivera's affidavit and the respondent's outline of submissions. 2. The applicant also relied upon written submissions in reply which responded to certain aspects of the case for the respondent and concluded as follows: Failure to provide permanent suitable duties by reasonable adjustment 43. The Workers Compensation and Injury Management Act, s49, requires the employer to provide ongoing suitable duties if this can be done by reasonable adjustment. But no one in the Police Force considered permanent part time as reasonable adjustment for a worker who was continuously and successfully working shorter hours over a period of years. 44. The employer is arguing that line management had the responsibility to consider reasonable adjustment. Mr Rivera's evidence shows that line management did not consider permanent part time as a form of reasonable adjustment, although Ms Davidson's evidence (Further Statement) shows that job sharing was discussed. The Commissioner's Delegate states that he only considered the requirements of s94B of the Police Act, which do not require consideration of reasonable adjustment. 45. The Applicant's evidence (statement of Zehra Davidson) shows that the Injury Manager was not prepared to consider part time as a form of reasonable adjustment, telling her to contact the Transition Unit. The evidence shows that no one who was dealing with Ms Davidson's case on behalf of the Commissioner of Police considered the possibility of part time, and when Ms Davidson raised it, the issue was avoided. So the employer has terminated Ms Davidson's employment without considering permanent reasonable adjustment, in breach of its statutory duty. 46. At Clause 5.3, regarding taking into account by the IRC of s49 of the Workers Compensation and Injury Management Act, the Respondent: "submits that would necessarily require an impermissible trespass by this Commission into the exclusive jurisdiction of the Personal Injury Commission." 47. The Respondent relies on the case of Colefax v Secretary, Department of Education. Colefax is authority for the proposition that the IRC cannot decide whether a determination of the former Workers Compensation Commission has been breached. It is not authority for the proposition that the IRC cannot interpret the provisions of the Workers Compensation and Injury Management Act to discover a duty on the part of the employer which has not been fulfilled, thus rendering a dismissal unjust. 48. The Commission has the power under s175 of the IR Act to interpret legislation, a power which, in the submission of the Applicant, is not displaced by the exclusive jurisdiction provisions of the Workers Compensation and Injury Management Act, as merely to interpret legislation is not to exercise jurisdiction in enforcing that legislation. The Commission is not being asked to impose a penalty for breach of the provision, nor to enforce any order made under it. 49. At Clause 6.2, the Respondent refers to the case of Stephen York v NSW Department of Education and Communities. 50. In Stephen York, the Full Bench of the IRC found that the Commission itself was not in breach of the Anti-Discrimination Act in deciding not to allow an out of time application. However, at [72], the Full Bench stated: "[T]he provisions of the Anti-Discrimination Act do not, in terms, apply to affect the determination of the Commissioner. However, in terms of the principles contained therein, it plainly condemns discrimination on the basis of disability." 51. It is the submission of the Applicant that the Industrial Relations Act requires the lRC to give consideration to the principles of the Anti-Discrimination Act (s169) and empowers the IRC to interpret that Act by virtue of s175 of the Industrial Relations Act. The evidence shows that the employer's policies allow other employees to be granted PPT where they cannot work full time due to, inter alia, childcare responsibilities. The evidence shows that the employer's policy is to medically discharge any disabled worker who is not able to return to full hours. The Commission is entitled to form a view that this policy is in breach of the provisions of the Anti-Discrimination Act which deal with disability discrimination in employment and that this is an element which makes any termination unjust as contrary to statute. Determination 1. In this matter I have determined to dismiss the Application for the reasons set out at paragraphs 4.1-6.17 of the respondent's outline of submissions with which I agree (at [22] above). It follows that I reject the case that has been put on behalf of the applicant, both in chief and in reply. 2. It is a matter for the respondent, not the PSA or this Commission, to determine whether it is "reasonably practicable" for the work which was previously undertaken by the applicant on a full-time basis to be performed on a part-time basis for five hours per day, three days per week, ongoing. It is a matter for the respondent to determine whether the applicant's medical restrictions prevented her from carrying out the "inherent requirements" of her previous role. The Commission would only interfere in this aspect the respondent's managerial prerogative to conduct her business as she sees fit in a case of clearly demonstrated unfairness to an employee or employees. No such unfairness has been demonstrated in this case. 3. Such intervention by the Commission, were it to occur, could only be based on the Commission's assessment of matters over which it has jurisdiction such as, for example, victimisation (s 210 of the IR Act), not on a determination by the Commission, as has been put on behalf of the applicant in this case, that the respondent has breached s 49 of the WIMWC Act. I repeat what I said in Colefax v Secretary, Department of Education [2018] NSWIRComm 1033: 29 I agree with the submission of the respondent to the effect that this Commission has no jurisdiction to deal with an alleged contravention of, or failure to comply with, such a determination (see section 105 of the Workplace Injury Management and Workers Compensation Act). Any finding by this Commission that the respondent acted unfairly in medically retiring the applicant on 29 March 2017, in part, because it failed to comply with the determination made by the WCC in August 2012, would necessarily require an impermissible trespass by this Commission into the exclusive jurisdiction of the WCC. 1. I note that, pursuant to s 105 of the WIMWC Act, the Personal Injury Commission of New South Wales established by the Personal Injury Commission Act 2020 has "exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act", which includes alleged breaches of s 49 of the WIMWC Act. It would be an odd outcome if, on the facts of this case, this Commission determined that the respondent had breached s 49 and the Personal Injury Commission, on those same facts in proceedings before it involving the same parties, determined that there had been no breach. 2. Similarly, whist s 169 of the IR Act requires that the Commission, in the exercise of its functions, take into account the principles contained in the AD Act, this does not extend to clothing the Commission with jurisdiction to determine, in a matter such as this Application, that an employer, such as the respondent in this case, has unlawfully discriminated against an employee, such as the applicant in this case, in a manner proscribed by s 49D of the AD Act. There is an elaborate apparatus established under the AD Act which provides the mechanism for employees to pursue complaints of unlawful discrimination by employers. 3. I accept, for the reasons set in Mr Rivera's affidavit, that it is not practicable for the role that had been performed by the applicant to be carried out as a part-time role on an ongoing basis (at [19] above). I accept that this is the case, despite the fact that the applicant had been working part-time for a number of years as part of a return to work program. This should not now be held against the respondent as a basis for requiring the respondent to provide permanent part-time work to an employee in the DTI Command in circumstances where the respondent has demonstrated that it is not practicable to do so. The fact that part-time work is available in other parts of the respondent's operation is irrelevant to the determination of this Application. 4. The respondent is under no obligation to fashion or create a job or position to accommodate the circumstances of the applicant. In this respect, I rely upon the following statement of the Full Bench (Hungerford and Marks JJ, O'Neill C) in Cansino v South Western Sydney Area Health Service (1998) 130 IR 1 (at 16), albeit that this statement was made with respect to what was then s 94 of the IR Act, since repealed and replaced by s 243 of the Workers Compensation Act 1987 (WCC Act): We are quite unable to construe the relevant provisions as requiring the respondent in some way to create or fashion a job or position to accommodate the circumstances of the appellant. 1. There is nothing in the materials relied upon by the applicant in this matter which obligates the respondent to employ her as a part-time employee, five hours per day, three days per week, on an ongoing basis. 2. The applicant has an extant workers compensation claim. Her entitlements and remedies, if any, are to be found in the WCC Act and the WIMWC Act, not in the IR Act. 3. I find that there is no unfairness to the applicant in the respondent's decision to medically retire her pursuant to s 94B of the Police Act. Her Application must be dismissed. 4. I so order. John Murphy Commissioner ********** Amendments 17 February 2022 - Minor amendment made in paragraph 19 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: 17 February 2022