Chircop v Commissioner of Police; Lezaja v Commissioner of Police [2022] NSWIRComm 1089

Industrial Relations Commission New South Wales Medium Neutral Citation: Chircop v Commissioner of Police; Lezaja v Commissioner of Police [2022] NSWIRComm 1089 Hearing dates: 7 April 2022 Date of orders: 21 October 2022 Decision date: 21 October 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Applications dismissed Catchwords: POLICE – Public Sector Disciplinary Appeals by two police prosecutors treated as applications pursuant s 174 of the Police Act – unvaccinated police officers – direction to not attend the workplace – direction to nominate a form of leave to be taken – suspension without pay – order for reviewable action – misconduct Legislation Cited: Industrial Relations Act 1996 Police Act 1990 Cases Cited: Commissioner of Police v Skelly [2010] NSWIRComm 18 Regan v Commissioner of Police [2015] NSWIRComm 1028 Texts Cited: Nil Category: Principal judgment Parties: Jared Chircop (Applicant) Bojan Lezaja (Applicant) Commissioner of Police (Respondent) Representation: The Applicants were self represented Mr M Watts of counsel (Respondent) File Number(s): 2021/00275096 2021/00275237 Publication restriction: Nil

decision 1. On 24 September 2021, Senior Constable Jared Chircop (S/C Chircop) and Senior Constable Bojan (Bobby) Lezaja (S/C Lezaja) (together, the applicants) each filed a Form 4A Notice of Appeal – Public Sector Discipline (Applications) in the Office of the Industrial Registrar commencing these proceedings against the Commissioner of Police (respondent). Both applicants are currently employed as police prosecutors in the Police Prosecution Command of the New South Wales Police Force (NSWPF). 2. In the matter of S/C Chircop it was indicated that the type of discipline decision being appealed against was "Suspension" and in the matter of S/C Lezaja it was "Suspension" and "Fine". 3. The Applications were listed before me for mention on 1 October 2021. The reason I listed the Applications was that there was a question to be answered as to whether the public sector disciplinary appeals provision of the Industrial Relations Act 1996 (IR Act) applied to police officers serving in the NSWPF. The applicants represented themselves. The respondent was represented by Nathan Roberts, solicitor of McCullough Robertson Lawyers. 4. Section 92 of the IR Act restricts public sector disciplinary appeals to public sector employees with certain exclusions not presently relevant. The definition of "public sector employee" in s 91 does not include police officers. Therefore, police officers do not have access to the provisions of Part 7 of Chapter 2 of the IR Act which deal with public sector disciplinary appeals, apart from the limited circumstances which are dealt with in s 186 of the Police Act 1990 (Police Act) which do not arise in the matters presently before the Commission. 5. The applicants both indicated that they had intended to proceed pursuant to s 174 of the Police Act. I was referred to email correspondence attached to the Applications from Superintendent Kirsty Heyward, Commander, Police Prosecution Command, dated 3 September 2021, which advised the applicants that "[t]his a formal direction under cl 8 of the Police Regulation 2015 to comply with the direction of Deputy Commission Corporate Services". The direction referred to had been issued by Deputy Commissioner Karen Webb on 30 August 2021 via NSWPF's NEMESIS messaging system (Webb direction). The Webb direction was published to all NSWPF police officers and employees and included the following: From 6 September 2021, NSWPF officers/employees who reside in an area of concern, that have not had at least 1 dose of a COVID-19 vaccination/have not been issued with a medical contraindication certificate will not be able to attend the workplace. These officers/employees will be required to nominate a form of accrued leave (e.g. annual/extended leave). COVID Special Leave is not available in these circumstances. 1. Both applicants were residing in an "area of concern" as designated by the then current Public Health Order, Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2), and neither of them had received a dose of a COVID-19 vaccination or a medical contraindication certificate by 6 September 2021. They were directed not to attend the workplace and, in the words of S/C Lezaja, were "forced to take leave for the allegedly misconduct of not complying with a medical procedure" (T 01/10/21 P 8 L 15-17). 2. I indicated that I was prepared to deal with the Applications on the basis that they had been brought pursuant to s 174 of the Police Act. Directions were made but later varied. The Applications were listed for hearing on 1 November 2021 on the basis that the respondent was to file a Notice of Motion seeking an order to have the Applications struck out. Due to subsequent events, which are dealt with below, this hearing date was vacated and the Applications were ultimately heard on 7 April 2022. 3. The question to be determined was whether or not the direction that the applicants not attend the workplace together the requirement that they utilise accrued leave constitutes "reviewable action" as defined in s 173 of the Police Act which may then be the subject of an application to this Commission brought pursuant to s 174 for "a review of the order on the ground that the order is beyond power or is harsh, unreasonable or unjust". This decision determines that question.