Danger v Commissioner of Police (No. 2) [2022] NSWIRComm 1040

Industrial Relations Commission New South Wales Medium Neutral Citation: Danger v Commissioner of Police (No. 2) [2022] NSWIRComm 1040 Hearing dates: 24 November 2021, 31 January, 21 February, 10, 17 and 31 March 2022 Date of orders: 8 June 2022 Decision date: 08 June 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Compensation ordered Catchwords: UNFAIR DISMISSAL – constructive dismissal Commissioner's vaccination mandate direction – information collection notices – compensation ordered Legislation Cited: Government Sector Employment Act 2013 Health Records and Information Privacy Act 2002 Industrial Relations Act 1996 Cases Cited: Danger v Commissioner of Police [2022] NSWIRComm 1015 Texts Cited: Nil Category: Principal judgment Parties: Moana Danger (Applicant) Commissioner of Police (Respondent) Representation: Applicant represented herself

Counsel: Mr M Seck (Respondent) Solicitors: Ms C Lenard, Kingston Reid (Respondent) File Number(s): 2021/00326937 Publication restriction: Nil

decision 1. Before the Commission is an application brought by the applicant, Moana Danger, pursuant to s 84 of the Industrial Relations Act 1996 ("Act") filed on 8 November 2021 seeking relief in relation to unfair dismissal. The applicant was employed in the New South Wales Police Force ("NSWPF") as a Customer Services Representative by the respondent, the Commissioner of Police. She was employed in the Tuggerah Centre, Police Link Command. 2. The applicant commenced employment in the NSWPF on 28 August 2018. On 18 October 2021, the applicant submitted a letter of resignation after she had been stood down without pay from 1 October 2021 for failing to provide her manager, Andrew Cobham, Tuggerah Centre Manager, Police Link Command, with a copy of her "immunisation history statement as recorded on the Australian Immunisation Register, or a copy of a medical contraindication certificate ("vaccine information")". 3. At the time of the submission of the applicant's letter of resignation, a NSWPF form titled "Resignation / Notice of Retirement from the NSW Police Force" was completed by the applicant and Mr Cobham ("Form P1050"). Part of the Form P1050 completed by Mr Cobham contained the following notation: * On the basis of the information supplied by Supervisors and your own knowledge, do you consider this employee suitable for re-employment? NO Any additional comments: As at this date 19/10, Moana is not suitable for reemployment as she has not provided evidence of COVID19 vaccination per the Commissioners directive. If this were to change, I would consider Moana suitable for reemployment. 1. In an email from Mr Cobham to the applicant sent on 19 October 2021, the following was stated with respect to his notation on the Form P1050: With regard to the field 'suitable for reemployment'. Unfortunately I have to indicate NO as you have not provided evidence of your COVID19 vaccination status. Should this change in the future I consider you very suitable for reemployment and will indicate this on the form. I didn't want you to come across this at any point in the future and not be aware of the comments. 1. The applicant claimed in her unfair dismissal application that the termination of her employment was at the initiative of the respondent. The applicant also indicated that she was seeking reinstatement and monetary compensation. The applicant's position subsequently changed to one of only seeking compensation and the removal of Mr Cobham's notation on her Form P1050 (at [3]).