Industrial Relations Commission New South Wales Medium Neutral Citation: Police Association of New South Wales v Commissioner of Police [2023] NSWIRComm 1001 Hearing dates: 6 & 7 June 2022 Date of orders: 8 June 2022 Decision date: 13 January 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Order and recommendations made Catchwords: INDUSTRIAL DISPUTE – threatened unfair dismissal – proposed medical retirement of police officer – medical evidence – whether unfitness or incapacity appears likely to be of a permanent nature – injury management policies and procedures – recover at work processes Legislation Cited: Industrial Relations Act 1996 Crimes Act 1900 Police Act 1990 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Australian Services Union and Sydney Water Corporation [2005] NSWIRComm 156 Davidson v Commissioner of Police (No. 2) [2022] NSWIRComm 1000 Davidson v Commissioner of Police (No 3) [2022] NSWIRComm 1102 NSW Commissioner of Police v Cottle [2022] HCA 7 Qantas Airways Limited v Australian Licensed Aircraft Engineers Association (No 2) [2020] FCA 951 Texts Cited: Nil Category: Principal judgment Parties: Police Association of New South Wales (Notifier) Commissioner of Police (Respondent) Representation: Counsel: Mr A Slevin (Notifier) Mr M Watts (Respondent) Solicitors: Mr D Longhurst, Police Association of New South Wales (Notifier) Ms M Cogar, Makinson d'Apice Lawyers (Respondent) File Number(s): 2022/0075517 Publication restriction: Nil decision 1. On 15 March 2020, the Police Association of New South Wales ("PANSW") filed in the Office of the Industrial Registrar a dispute notification ("Notification") pursuant to s 130 of the Industrial Relations Act 1996 ("Act"). The respondent to the Notification was the Commissioner of Police, the respondent in these proceedings. The matter in dispute was described in the following terms (footnotes omitted): 1. The Police Association of New South Wales (the Association) is a registered industrial organisation of employees, with constitutional coverage entitling it to represent the interests of sworn police officers in new South Wales. 2. Kris Cooper is a currently a Sergeant of Police (hereafter Sgt Cooper), and holds the position of Senior Policy Adviser, attached to the Traffic Policy Unit within the Traffic and Highway Patrol Command, and a member of the Association. 3. The Association and the Commissioner of Police are in dispute over: a. The failure of the NSW Police Force to comply with its own policies with respect to the management of injured workers and their referral for consideration of medical retirement. b. The failure by the NSW Police Force to comply with its obligations under s 49 of the Workers Compensation and Injury Management Act 1998 (sic Workplace Injury Management and Workers Compensation Act 1998) (the WIM Act) for officers who are referred for medical retirement, in circumstances where both the officers nominated treating doctor and the Independent Medical Expert briefed by the NSW Police Force (for the purpose of providing an opinion on an officers fitness for duty), support a graded return to work plan for the officer. c. The threatened dismissal of Sgt Cooper. The Association contends the threatened dismissal (medical retirement) of Sgt Cooper is substantively harsh, unjust and unreasonable, in particular because the current medical evidence does not support the view that Sgt Cooper is likely to be permanently unfit to perform or is likely to be permanently incapable of discharging the duties of his position (a necessary pre-condition to the Commissioner of Police being empowered to medically retire a police officer under s 94B of the Police Act 1990). 4. The impending dismissal makes the dispute urgent. A copy of the letter threatening dismissal is attached to this Dispute Notice. BACKGROUND 5. Sgt Cooper commenced employment with the NSW Police Force around November 1997. 6. Sgt Cooper worked in general duties and in the Metropolitan Crash Investigation Unit before transferring to the Traffic Policy Unit in or around November 2006. 7. The Traffic Policy Unit is comprised of four staff including a Senior Sergeant Coordinator, Sergeant Senior Police Policy Officer and two Constable Policy Officer positions. The Unit provides advice to NSW Police Force on traffic legislation and policy. The roles are office-based. Staff are required to provide evidence in court matters and coronial inquests. 8. In May 2013, Sgt Cooper was promoted to his current rank of Sergeant. He currently holds the position of Senior Police Policy Officer. 9. On 9 July 2019, Sgt Cooper reported off work due to illness. On or around 11 July 2019 he provided a workers compensation medical certificate identifying his injury/illness as workplace stress with reactive depression and anxiety. Treatment was identified as counselling with a psychologist. 10. Sgt Cooper's subsequent claim for worker's compensation was disputed. Sgt Cooper maintains that the absence from work due to illness/injury is compensable under the Workers Compensation Act 1987. An application to resolve that dispute is yet to be filed with the Personal Injury Commission. 11. Sgt Cooper has been on 'sick leave without pay' since in or around May 2020, having exhausted all his accrued leave entitlements. He receives payment under the income protection component of the Police Blue Ribbon Insurance policy. 12. Sgt Cooper was certified as totally unfit for work from 9 July 2019 until 25 October 2021. The treatment regime was adjusted over that time to include treatment with a psychologist and anti­depressant medication under the care of a psychiatrist. 13. From 25 October 2021, Sgt Cooper was certified as fit to return to work 3 days per week, 3 hours per day (only other limitation "take break at his own pace, avoid public contact"). He has been performing work on a graded return to work basis since that time. He continues to be certified as fit to return to work 3 days per week, 3 hours per day. 14. On 3 March 2022, Sgt Cooper was supplied by the NSWPF with a Return to Work Plan. That plan confirms his current rehabilitation goal is a return to pre-injury duties with the NSWPF. Referral For Medical Retirement 15. ln or around May 2021, Sgt Cooper was advised his file had been referred to the NSWPF "Transition Team for consideration of retirement on medical grounds under s 94B of the Police Act 1990". 16. Solicitors assisting Sgt Cooper respond to the foreshadowed medical retirement wrote to the NSWPF and requested copies of documents to enable him to be properly advised and respond. None of the documents requested were forthcoming. 17. On 30 July 2021, Sgt Cooper responded to the notice foreshadowing medical retirement, opposing his medical retirement on grounds that included the pre-condition of permanency required by s 94B of the Police Act could not be satisfied. The medical information at that time included the following: a. A consulting note was provided to Sgt Cooper's nominated treating doctor (Dr A. Emin), by his treating psychiatrist Dr S Jayaleth, on 17 April 2021 and 24 June 2021, confirming it was anticipated Sgt Cooper would return to full duties: i. 17 April 2021 note states: "Overall he is clearly progressing towards recovery. The work related stressors are delaying the progress, I can confirm that he will be able to recover to an extent where he will be able to return to his duties." ii. 24 June 2021 note states: "Compare[d] to when he presented initially in December 2019, Kris has made significant progress in his mental health to an exten[t] where I was discussing returning to work at the previous review. I am confident that he will be able to recover to an extent where he will be able to return to his former duties in a phase return to work. Considering the recent set back in his mental state due to the letter he received, I would propose planning to return to work to be started from October this year." b. Dr Emin in a report dated 8 July 2021 stated: "In consultation with his psychiatrist, I am of the view that he will recover and will be able to resume his former duties due to good response to treatment. We will continue to monitor his progress towards returning to work and when he returns." 18. In November 2021, Sgt Cooper was referred by the NSWPF for an independent assessment of his fitness for duty with Sonic Health. In a report dated 16 November 2021, prepared by Dr Nicholas Jetnikoff (psychiatrist) opined: "Based on the information available Mr Cooper appears to have no active psychiatric disorder. He denies any significant symptoms and expresses a desire to return to work. His examination is unremarkable ... Mr Cooper appears fit to resume work unrestricted from a psychiatric perspective immediately. He can return to his substantive position. This opinion is contingent upon confirmation of his fitness by the current psychiatrist to ensure adequate risk assessment." 19. In December 2021, Ms Lisa Graves (Police psychologist with the Police Medical Officer's office), stated the following in an email to the Superintendent then in charge of the Traffic and Highway Patrol Command on 15 December 2021 (emphasis added): "Thank you for referring Sergeant Kris COOPER (RN 32357) for Fitness For Duty (FFD) assessment on 13 December 2021. He completed psychometric assessment and psychological interview. … Sergeant COOPER is deemed fit to return to his RESTRICTED duties role. He is NOT fit for full duties at this time. … When the officer completes his Recover At Work graded return plan, he is required to return for further FFD assessment, prior to a return to full operational duties." 20. To the notifier's knowledge, no medical practitioner has ever expressed the view that Sgt Cooper was likely to be permanently unable to return to his pre-injury duties. 21. On 8 March 2022, solicitors assisting Sgt Cooper again wrote to the NSWPF asserting that there was no rational or reasonable basis upon which the Commissioner's delegate could form a view that s 94B was satisfied (referring to the contemporary medical reports of Dr Jentikoff and Ms Graves referred to above. 22. On 9 March 2022, Sgt Cooper was provided his first Recover @ Work plan, dated 2 March 2022 and purportedly applying to the period 21 February 2022 to 21 March 2022, with a return to work goal as a return to pre-injury duties. 23. On 9 March 2022, the Respondent's delegate, Assistant Commissioner Dean Smith, wrote to Sgt Cooper and advised: Having considered all the relevant information provided and pursuant to s94B of the Police Act 19901 have, as Delegate for the Commissioner of Police determined that it is appropriate for you to be medically retired from the NSW Police Force. This decision is effective as and from 7 March 2022. Your last day of service with the NSW Police Force will be Thursday 17 March 2022. 24. Assistant Commissioner Smith's letter provided no explanation of how Sgt Cooper's situation satisfied s 94B of the Police Act, nor was any medical report identified that supported the application of s 94B of the Police Act. 25. Under NSWPF policy, referral to the Transition Unit should only to occur "When all attempts to return the employee to work within the NSW Police Force have been exhausted''. The relevant procedure expressly states (emphasis added): Commands/Business Units may refer the post-88 police officer's or administrative officer's file to the Transition team for review and consideration of a medical discharge when the following has been clearly established: a. The injured employee's formal R@W goal is no longer to return to full PID and medical advice indicates their condition is unlikely to improve in the foreseeable future; and b. The injured employee has concluded the R@W process within the NSWPF, and either: - has no current or future capacity for duties within the NSWPF, or - reasonable efforts have been exhausted to place the employee in suitable employment within the NSWPF, in accordance with the Deployment of Injured Employees - Procedures. 26. The referral to the Transition Unit ought never have been made. 27. At no time had any practitioner indicated Sergeant Cooper's condition was unlikely to improve in the foreseeable future. Indeed, all the medical evidence indicates to the contrary and supports the continuation of a graded return to work plan. 28. At no time had the NTD or any treating practitioner indicated the recover at work process was concluded. The current Recover At Work Program prepared by the relevant Injury Management Adviser for the NSWPF dated 2 March 2022, recorded Sgt Cooper's current rehabilitation goal to be a return to pre-injury duties with the NSWPF. 29. There is no medical report expressing the opinion, or capable of supporting the conclusion, that Sgt Cooper is likely to be permanently unfit to return to his pre-injury duties, or would likely be permanently incapable of returning to his pre-injury duties. 30. It is in these circumstances the Association contends: a. The Commissioner of Police is in violation of his obligations to Sergeant Cooper as an injured worker under s 49 of the WIM Act. In circumstances where an officers NTD certifies them fit for a graded return to work, and the officer requests suitable work, the NSWPF is obliged to provide suitable work. That is particularly so where an independent assessing specialist briefed by the NSWPF/the NSWPF workers compensation insurer has similarly expressed the view that a graded return to work is appropriate and would assist in the officer's rehabilitation. The fact there is a dispute over whether the injury/illness is compensable does not avoid the obligations under s 49 of the WIM Act: see s 41A of the WIM Act. b. The Commissioner of Police has threatened to dismiss Sergeant Cooper in circumstances where the threatened dismissal is both procedurally and substantively harsh, unjust and unreasonable. Relief 31. The Association requests: a. The Industrial Relations Commission urgently convene a compulsory conference in relation to the dispute; and b. The NSWPF retract the threatened dismissal of Sergeant Cooper and permit him to continue his current graded return at work plan provided by the NSWPF on 9 March 2022. 32. The Orders sought by the Association include: a. An Interim Order that the Commissioner of Police not dismiss (medically retire) Sergeant Kris Cooper pending the determination of these proceedings. b. A final Order that the Commissioner of Police not dismiss (medically retire) Sergeant Kris Cooper as threatened in the letter from the NSWPF to him sent 9 March 2022. 1. On the same day, 15 March 2022, PANSW filed a document titled "APPLICATION For Orders" in which it sought the following interim order: Pursuant to section 136(1)(c) and (d), and section 137(1)(c) of the Industrial Relations Act 1996, the Commission makes the following Interim Order: 1. The Commissioner of Police does not dismiss Sergeant Kris Cooper until the determination of these proceedings or further Order of the Commission. 1. In response to the Notification, a compulsory conference was convened by Chief Commissioner Constant on 16 March 2022. The dispute was not settled at that compulsory conference and the Chief Commissioner, having formed the view that reasonable efforts had been made to resolve the dispute by conciliation, issued a certificate of attempted conciliation pursuant to s 135 of the Act. The proceedings were adjourned until the following day, 17 March 2022, for arbitration. 2. The parties filed and served witness statements and written submissions in anticipation of an arbitrated hearing. However, following off-record discussions between the parties on 17 March 2022, an agreement was reached which involved PANSW withdrawing its application for an interim order and an agreed timetable for the filing and serving of material with the matter listed for hearing before me on 6 and 7 June 2022. 3. At the conclusion of the hearing on 7 June 2022, I indicated to the parties that I proposed to make an order pursuant to s 137(1)(c) of the Act and that I would publish full reasons for my order in due course. 4. The order and recommendations that I made on 8 June 2022 were in the following form: ORDERS AND RECOMMENDATION 1. Pursuant to s 136(1)(c) and (d) and s 137(1)(c) of the Industrial Relations Act 1996 (NSW), I order that the Commissioner of Police not dismiss Sergeant Kris Cooper pursuant to the decision of 7 March 2022 to medically retire him. 2. Pursuant to s 136(1)(a) of the Industrial Relations Act 1996 (NSW), I recommend that, on or before 23 June 2022, Sergeant Cooper provides a medical certificate/report to the NSW Police Force setting out his current capacity and restrictions and the nature of any current medical condition. 3. Pursuant to s 136(1)(a) of the Industrial Relations Act 1996 (NSW), I recommend that the NSW Police Force develop a graded Recover at Workplan for Sergeant Kris Cooper in accordance with the NSW Police Force Injury Management Procedures by: a. On or before 30 June 2022 organising a case conference with Sergeant Cooper, his Nominated Treating Doctor, his support person, an Injury Management Advisor and a Command delegate in accordance with 5.9 of the Injury Management Procedures to facilitate the preparation of a Recover at Work Plan; and b. Preparing a Recover at Work Plan in accordance with 5.8 of the Injury Management Procedures. 4. Pursuant to s 136(1)(a) of the Industrial Relations Act 1996 (NSW), I recommend that the Respondent recredit all paid leave entitlements paid to Sergeant Cooper from 17 March 2022 to 7 June 2022 and direct the parties to confer on the amount of leave to be recredited. 1. What follows are my reasons for making the order and recommendations set out above. The legislation 1. The authority which resides in the respondent to medically retire a member of the New South Wales Police Force ("NSWPF") derives from 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. Putting aside s 94B(b)(ii) on the basis that there has been no suggestion in these proceedings that Sergeant Cooper's unfitness or incapacity arose from actual misconduct on his part or from causes within his control, the two essential elements which underpin the statutory power to medically retire him are that he is found on medical grounds to be unfit to perform or incapable of discharging the duties of his position and his unfitness or incapacity appears likely to be of a permanent nature. It is to the latter of these two elements that most attention was given during the proceedings. Case for PANSW 1. PANSW relied upon a witness statement prepared by Sergeant Cooper (exhibit 1). Exhibited to this witness statement was a bundle of documents comprising medical certificates, correspondence and other documents marked "EX-01" to "EX-18". 2. In his witness statement, Sergeant Cooper outlined in broad terms his history with NSWPF, which commenced in or around November 1997, and dealt with his illness which caused him to go off work on 9 July 2019, his unsuccessful claim for workers compensation and the lead up to the decision made by the delegate of the respondent, Assistant Commissioner Dean Smith, that he be medically retired, which decision was effective from 7 March 2022 and communicated to him on 9 March 2022 with his last day of service with NSWPF to be 17 March 2022. 3. Sergeant Cooper referred to a written notice he received from the then Assistant Commissioner, Karen Webb, Commander, Traffic and Highway Patrol Command ("THPC") dated 19 May 2021, advising him that his file had been referred to NSWPF's Transition Team/Unit for consideration of retirement on medical grounds under s 94B of the Police Act. He also referred to his written response to that notice sent to the Manager, Transition Unit, Human Resources Unit, which was prepared with the assistance of his solicitors on or around 30 July 2021. That response opposed the proposed medical retirement on grounds that included that "the pre-condition of permanency" required by s 94B of the Police Act could not be satisfied. Included in this response was a copy of earlier correspondence dated 19 June 2020 to Assistant Commissioner Webb in which Sergeant Cooper raised a number of concerns regarding recent correspondence from, and actions undertaken and directed by, THPC Staff Officer, Inspector Robert Toynton. 4. Also included in Sergeant Cooper's witness statement were extracts from consulting notes dated 17 April and 24 June 2021 provided by his treating psychiatrist, Dr Sajeeva Jayalath, to his treating general practitioner, Dr Alaaddin Emin, as well as an extract from Dr Emin's report dated 8 July 2021, which are set out at paragraph 17 of the Notification (at [1] above). 5. In addition, Sergeant Cooper included in his witness statement the extract from the report dated 16 November 2021 by Dr Nicholas Jetnikoff (psychiatrist) of Sonic Health on referral from NSWPF for an independent assessment of Sergeant Cooper's fitness for duty. This extract is set out at paragraph 18 of the Notification. 6. Also included in Sergeant Cooper's witness statement was correspondence from his solicitors to Superintendent Sonya Tabor, Commander, Workforce Safety Command, Human Resources Command, dated 8 March 2022, which referred to the medical report of Dr Jetnikoff dated 16 November 2021 and to an email from Ms Lisa Graves, police psychologist, of 15 December 2021, extracts from which are set out at paragraph 19 of the Notification. The correspondence stated: Given the above medical opinion it is again pressed that section 94B of the Police Act 1990 does not apply and that the delegate ought not make a decision of medically discharging our client pursuant to section 94B of the Police Act 1990. 1. Sergeant Cooper also gave evidence of the different return-to-work plans that were devised to assist in his return to his former position and duties, including an Injury Management Recovery At Work Plan 3 prepared by Acting Senior Injury Management Advisor, Amanda Skala, on 2 March 2022, which purportedly applied to the period 21 February to 21 March 2022, which was annexed as "EX-15" to his witness statement (exhibit 1). Sergeant Cooper was not required for cross-examination. 2. PANSW also relied upon a witness statement prepared by Sergeant Nicole Russell of the Camden Highway Patrol (exhibit 3). Sergeant Russell gave evidence of her long association with Sergeant Cooper both in the workplace and during his period off work due to illness, initially as his welfare officer and subsequently as a friend. She testified to his "enthusiasm and zest for his employment within the NSWPF". Sergeant Russell's contribution to the proceedings was generally in the nature of character evidence in support of Sergeant Cooper. She was not required for cross-examination. 3. A witness statement prepared by Kirsty Membreno, Assistant Secretary, Industrial, PANSW, was also tendered into evidence (exhibit 4). Ms Membreno gave evidence about a broader industrial issue between PANSW and NSWPF in relation to what she described as the "Medical Retirement Review Process (the "MRRP") and the medical discharge process generally, that is undertaken by the NSWPF in relation to officers that are determined to be permanently unfit for duties and considered by the Delegate of the respondent for medical discharge". 4. It was Ms Membreno's evidence that, in the case of Sergeant Cooper (and other police officers) NSWPF has been in breach of its own Injury Management Procedures and Standard Operating Procedures for Managing the Deployment of Injured Police Officers ("SOPs"). Her witness statement contained the following: Policies and Procedures 15. Under the NSWPF Injury Management Procedures, referral to the Transition Unit should only occur "When all attempts to return the employee to work within the NSW Police Force have been exhausted". The relevant procedure expressly states (emphasis added): Commands/Business Units may refer the post-88 police officer's or administrative officer's file to the Transition team for review and consideration of a medical discharge when the following has been clearly established: a. The injured employee's formal R@W goal is no longer to return to full PID and medical advice indicates their condition is unlikely to improve in the foreseeable future; and b. The injured employee has concluded the R@W process within the NSWPF, and either; 1. has no current or future capacity for duties within the NSWPF, or 2. reasonable efforts have been exhausted to place the employee in suitable employment within the NSWPF, in accordance with the Deployment of Injured Employees - Procedures. … 17. Sgt Cooper informed me that he was in the workplace whilst participating in a Recovery at Work Plan (R@W) when he was handed the documentation. He had also received R@W Plan documentation earlier that day which confirmed his current R@W plan was continuing and at no time had the NTD or any treating practitioner indicated the recover at work process was concluded. The current R@W plan prepared by the relevant Injury Management Adviser for the NSWPF dated 3 March 2022, contemplates a return to pre-injury duties with the NSWPF. 18. At no time had any practitioner indicated Sergeant Cooper's condition was unlikely to improve in the foreseeable future. Indeed, all the medical evidence indicates to the contrary and supports the continuation of a graded return to work plan. 19. In my opinion Sgt Cooper's R@W plan should have continued and the referral to the transition unit was premature and did not meet the requirements under the Injury Management Procedures for a referral to take place at this time. 20. I understand that when an injured officer cannot return to pre injury duties (which I don't believe is Sgt Coopers situation) the NSWPF Standard Operating Procedures for Managing the Deployment of Injured Police Officers (SOP's) applies… 21. On page 4 of the SOP's the principles that apply: In situations where an officer is certified as unable to return to their pre-injury duties every endeavour will be given to placement of that officer into suitable employment where they can perform the inherent requirements of a position with reasonable adjustment. Medical discharge is a last resort. 22. Section 5.1 on page 7 outlines the stage from injury management to Deployment: The referral process provides the transition of the officer from the injury management arena, where the emphasis is on suitable duties and a return to pre-injury duties; to deployment where permanent suitable employment is the goal. In the first instance, the substantive Command willl be expected to take all reasonable steps to place the injured officer into suitable employment within the Command. 23. I am not aware as I have outlined above of any medical reports indicating that Sgt Cooper was unable to return to his pre injury position permanently. If NSWPF had formed that opinion, then what flows from that is the referral to the Deployment Unit to enable proper assistance to locate a suitable position for Sgt Cooper. This step was not followed by NSWPF, he was simply referred directly to the Transition Unit for consideration of medical retirement despite being on a R@W plan and fit for work. 24. The first requirement under the SOP's is for the Command to assess his pre injury position (if he was in fact unable to return to pre injury duties) to establish if he/she could undertake that role with the injury or with reasonable adjustment. This assessment did not occur. 1. PANSW filed and served written submissions much of which rehearsed material that had been set out in the Notification, which dealt with s 94B of the Police Act, and in the evidence of Ms Membreno. 2. In addition, PANSW relied upon the judgement of Boland J in Australian Services Union and Sydney Water Corporation [2005] NSWIRComm 156 (at [65]) in support of the proposition that s 136 of the Act, in combination with s 137(1)(c), gives the Commission the power to exercise its discretion to order an employer, in that case Sydney Water, not to dismiss two employees who had been threatened with dismissal by way of medical retirement during the course of an industrial dispute about the adequacy of the employer's injury management policies and practices. 3. The judgement of the High Court in NSW Commissioner of Police v Cottle [2022] HCA 7 was called in aid of the now accepted proposition that the medical retirement provisions of the Police Act (then s 72A) permit an inquiry into whether the proposed medical retirement of Sergeant Cooper is, in all the circumstances, harsh, unreasonable or unjust. The High Court stated (at [34]): Nor is it correct to observe that the "primary" remedies for unfair dismissal, namely, reinstatement or re-employment, are not apt to be applied in the case of a review of a non-executive police officer's retirement caused by an exercise of the power in s 72A of the Police Act. First, this overlooks that compensation is another remedy which may be available. Secondly, that which might be "harsh, unreasonable or unjust" for the purposes of s 84(1) of the IR Act could well include conclusions reached about a police officer's degree of unfitness, the nexus between the unfitness and the discharge of an officer's position, and the cause of the unfitness. It could also include matters going to the discretionary power to cause a police officer to be retired. In a given case, it might be appropriate to reinstate an officer because of a mistaken, and thus arguably unjust, conclusion concerning the police officer's unfitness. It might be appropriate to re-employ a police officer in a different position because it would be "harsh, unreasonable or unjust" not to do so. Where it would be impracticable to order remedies of this type, the IR Commission would then still have the power to order compensation. 1. PANSW also submitted that NSWPF was in breach of its obligations under s 49 of the Workplace Injury Management and Workers Compensation Act 1998 ("WIMWC Act") to provide Sergeant Cooper with suitable work. Case for the respondent 1. The respondent relied upon a witness statement prepared by Nadia Napoletano, Director, Workforce Relations and Reform, People and Capability Command (exhibit 6). Ms Napoletano stated that, having read NSWPF's files, she had no record of any dispute being raised with Workforce Relations and Reform by PANSW in relation to Sergeant Cooper's medical retirement. Ms Napoletano was not required for cross-examination. 2. The respondent's delegate and decision maker in relation to the medical retirement of Sergeant Cooper, Assistant Commissioner Smith APM, Commander, People and Capability Command, gave evidence in the proceedings by way of a prepared witness statement (exhibit 7). 3. In his witness statement at paragraph 9, Assistant Commissioner Smith set out a table of "key events in Sergeant Cooper's history, with respect to his fitness and capacity". That table is reproduced below: 9 July 2019 Sergeant Cooper became unfit for duty. 11 July 2019 Sergeant Cooper provided a certificate of capacity, stating he had no capacity for any duties. 16 July 2019 Sergeant Cooper lodged a P902 (notification of injury) form, citing psychological illness. 2 September 2019 Psychologist Christine Segren opined that Sergeant Cooper had 'acute anxiety and previous history of same', and was experiencing anxiety and depression. The report opines that Sergeant Cooper 'is at a high risk to psychological injury becoming worse and possibility of future Post Traumatic Stress Disorder'. 1 October 2019 Sergeant Cooper's injury was not accepted by the NSWPF's workers' compensation insurer to be a workplace injury. 27 March 2020 Sergeant Cooper's Nominated Treating Doctor (NTD), Dr Alaadin Emin, opined Sergeant Cooper was unlikely to return to pre-injury duties. 5 June 2020 Sergeant Cooper failed to participate in a scheduled independent medical examination (IME) after advising he was unavailable. 16 June 2020 The NSWPF wrote to Sergeant Cooper, requesting availability to attend an IME and provide consent for the NSWPF to consult with his NTD, or otherwise he would be progressed for potential medical retirement. 9 March 2021 Sergeant Cooper stated in writing that he would not attend a further IME scheduled for 7 April 2021 and would not provide consent for the NSWPF to speak to his treating doctors. 15 March 2021 Sergeant Cooper was advised that, due to his failure to attend the IME and/or provide consent for the NSWPF to speak to his NTDs, his matter was being progressed for potential medical retirement. 7 April 2021 Sergeant Cooper failed to attend a scheduled IME. May 2021 Sergeant Cooper's matter was referred to the Transition Unit, for consideration of his medical retirement. 24 June 2021 Psychiatrist Dr Sajeeva Jayalath provided an opinion that Sergeant Cooper had suffered a recent 'setback' to his mental health, but 'will be able to return to his former duties in a phase (sic) return to work', although no timeframes for this phased return to work were provided. 8 July 2021 NTD Dr Eman opined that Sergeant Cooper 'will recover and will be able to resume his former duties', although no timeframe was provided. August 2021 Assistant Commissioner Gavin Wood, former Commander of Human Resources Command, considered whether to medically retire Sergeant Cooper. Assistant Commissioner Wood determined not to medically retire Sergeant Cooper, but instead afford him time to attend an IME and then demonstrate that he could upgrade his fitness and return to pre-injury duties. October 2021 Sergeant Cooper participated in the third scheduled IME. 16 November 2021 The IME report by Psychiatrist Dr Nicholas Jetnikoff opined that Sergeant Cooper was fit to immediately resume duties, unrestricted. However, the report recommended that Sergeant Cooper be gradually returned to full duties over a period of six weeks. 5 January 2022 Sergeant Cooper returned to work, performing restricted duties. 11 January 2022 Assistant Commissioner Wood wrote to Sergeant Cooper, advising that consideration of his medical retirement would be stayed while Sergeant Cooper completed a six week return to work plan. 22 February 2022 Sergeant Cooper provided a certificate, continuing to restrict him to perform 3 hours per day, 3 days per week and 'gradual exposure to pre injury duties in pre injury work environment'. 1. Assistant Commissioner Smith then at paragraph 10 listed the four reasons for his decision which he made on 7 March 2022 to medically retire Sergeant Cooper. Those reasons were that Sergeant Cooper had (with some alterations as to relevant dates made under cross-examination at T 06/06/22 P 52 L 17-49): (a) been continuously unfit for pre-injury duties since 9 June (corrected to 9 July) 2019; (b) been continuously restricted to perform duties three hours per day, three days per week since 25 October 2021 (corrected to 5 January 2022); (c) not upgraded in his capacity since 25 October 2021 (corrected to 5 January 2022) despite the opinions expressed by Dr Jetnikoff that he would be fit to perform unrestricted duties in four to six weeks; and (d) not provided any evidence to suggest that he would likely become fit to perform pre-injury duties, or even upgrade his capacity, in the foreseeable future. 1. Assistant Commissioner Smith was cross-examined by Mr Slevin, counsel for PANSW. An extract from the transcript of that cross-examination is set out below: Q. You then say that you made this decision for four reasons. The first reason says that Sergeant Cooper had been continuously unfit for pre-injury duties since 9 June 2019. I think the correct date is 9 July 2019-- A. July, that's correct. Q. --isn't it? A. That's correct, my apologies. Q. Then the second reason you say he had been continuously restricted to perform duties three hours per day, three days per week since 25 October 2021. It's the case that he had certificates about being able to perform duties, but he wasn't actually performing duties since 25 October 2021, was he? He'd only been performing the duties since 5 January 2022, that's correct, isn't it? A. That's correct, however, there was the information contained that he was able to perform continuously - able to perform three hours a day, three days a week from that date, however, yes, that's correct, he didn't start 'till 5 January. Q. And he had not upgraded in his capacity since 25 October 2021 despite the opinions expressed by Dr Jetnikoff that he would be fit to perform unrestricted duties in four to six weeks? A. That's correct. Q. Now, the relevant timeframe there isn't 25 October '21, it's 5 January '22, isn't it? A. Correct, yes. Q. So any assessment of any four to six weeks doesn't go from October, it goes from January, that's correct, isn't it? A. That's correct, yes. Q. Then your fourth reason is that Sergeant Cooper had not provided any evidence to suggest that he would likely become fit to perform pre-injury duties or even upgrade his capacity in the foreseeable future. First of all, we've already discussed this and it's the case, isn't it, that he was not given the opportunity to provide evidence to you at the time of your decision about his likelihood of becoming fit of perform pre-injury duties? That's the case, isn't it? A. I don't agree with that. Yes, I did say that statement, but in totality the certificates that were provided did not indicate that there would be an upgrade in his capacity in the foreseeable future. Q. Well, let's go to that which we did before lunch. He did provide medical evidence, didn't he, in the 30 July letter at page 33 of your statement? 30 July 2021 he provided precisely the sort of evidence that you're saying here he didn't provide. You'll recall I took you to that at page 33 and 34? A. Yes, correct. Q. So it's wrong to say that he did not provide any evidence, isn't it? He had provided evidence in July 2021? A. He provided information in relation to it, but, as I said, the information that was in front of me related to post the - that time, there was no indication - the last certificate. Q. So you do agree with me that on 30 July 2021 Sergeant Cooper provided you with medical evidence that he would likely become fit to perform pre-injury duties and upgrade his capacity in the foreseeable future, didn't he? A. That was recorded, yes. Q. Not only did he provide you that evidence, but you went and tested that evidence by sending him to an independent medical expert, didn't you? A. Not me personally, but the New South Wales Police Force, yes. Q. Police did and that was Dr Nicholas Jetnikoff and that was the report of 16 November 2021? A. That's correct. Q. And that indicated that he was likely to be fit to perform pre-injury duties and he could upgrade his capacity, didn't it? A. That's correct. Q. Not only that, but New South Wales Police Force had information, even though it wasn't provided to you at this time, from the police medical office through the police psychologist Lisa Graves which suggested that he is not fit for full duties at this time, but he can complete his recover-at-work graded return plan to return to full operational duties. That information was available to the New South Wales Police Force, that's the case, isn't it? A. That's correct, yes. Q. I think you've said this, but the only medical evidence that you could point to that you say suggests otherwise is the 22 February 2022 WorkCover certificate, is that right? A. That's correct. Q. The 2022 WorkCover certificate is the last document in your statement. I just want to direct you to page 89, page 2 of that document, and the heading "capacity" you see the box "capacity"? A. I do, yes. Q. And you see the comment there from the doctor that, "Gradual exposure to pre-injury duties in pre-injury work environment pending review 8-11 will be suitable at this time." So the doctor there is suggesting a gradual exposure to pre-injury duties, isn't he? A. He is, yes. Q. You say that document was such that you were convinced that his incapacity was of a permanent nature and that's the sole medical evidence that you point to, is it, Assistant Commissioner? A. Not in totality, but in terms of everything that was in front of me at that time, that also formed my view that that was the case, yes. Q. What else before you at that time suggested that his unfitness or incapacity was permanent in nature? Medical evidence? A. Medical evidence, sorry? Can you - sorry, just that first question. Q. What medical evidence before you at that time - you've told me that-- A. Yep. Q. --you rely on that comment in the 22 February 2022 certificate? A. Yes. Q. And then you said something along the lines of "and together with other material before me at that time". I want you to point out me where there is medical evidence in addition to what you've just described from 22 February that made it appear likely that his unfitness or incapacity was permanent in nature? A. In that question I was not relying on anything else. It was based in regards to the timeframe of the three days per week, three hours per day and not upgrading. Q. So there's no other medical document/report that you want to point us to? A. That's correct. Q. In relation to the decision that you made, you were aware on 7 March that Sergeant Cooper disputed his medical retirement, weren't you? A. Had previously, yes. Q. Then on 8 March you saw the solicitor's letter or round 8 March you saw his solicitor's letter and so you were aware from that letter that he continued in March to dispute his medical retirement, that's the case, isn't it? A. Yes, that's correct. Q. And indeed the nature of the dispute was that he says, "You can't possibly be satisfied under section 94B of the Police Act that I am permanently incapacitated." That's the nature of his dispute with you, isn't it? A. That's correct. (T 06/06/22 P 52 L 17 – P 55 L 5) 1. During re-examination by counsel for the respondent, Mr Watts, Assistant Commissioner Smith confirmed that there was nothing in the correspondence from Sergeant Cooper's solicitors of 8 March 2022, or in the Injury Management Recover At Work Plan 3 prepared by Ms Skala on 2 March 2022, which caused him to change the view he had formed on 7 March 2022 about Sergeant Cooper appearing unlikely to be fit to perform his pre-injury duties in the future (T 06/06/22 P 55 L 50 – P 57 L 29). 2. Evidence was given for the respondent by Mary Noy, Director of Operational Workplace Support. In her witness statement, Ms Noy gave evidence about her involvement in the management of Sergeant Cooper's injury and return to work in or around July 2021 (exhibit 8). It was Ms Noy's understanding that Sergeant Cooper had not been in the workforce for approximately two years and was not meaningfully engaging with his Injury Management Advisor or with his Command, the THPC. 3. Ms Noy became aware that, on or around 16 June 2020, Sergeant Cooper was informed that his failure to attend an Independent Medical Examination ("IME") and provide consent for NSWPF to liaise with his Nominated Treating Doctor/s ("NTDs) would likely result in his matter being referred to the Transition Unit for possible medical retirement. Ms Noy understood that Sergeant Cooper received similar advice on 26 February 2021. According to Ms Noy, these failures on the part of Sergeant Cooper were the reasons the Injury Management Unit did not refer him to the Deployment Unit so that other deployment opportunities and positions could be considered prior to his referral to the Transition Unit. 4. In the remainder of her witness statement, Ms Noy responded to various matters raised by Sergeant Cooper in his witness statement concerning his return to work experience, the stay of the medical retirement process by Assistant Superintendent Wood and the notification of his last day of service by Assistant Commissioner Smith. With respect to the notification of the last day of service, it was Ms Noy's evidence that employees who are to be medically retired are normally given two weeks' notice of their last day of service, consistent with the fortnightly pay cycle, but in the case of Sergeant Cooper, the decision to medically retire him was made "outside of the usual cycle, due to its exceptional and unusual nature". 5. The last witness to give evidence for the respondent was Superintendent Robert Toynton, Commander of Traffic South West, THPC. In his witness statement, Superintendent Toynton gave evidence about the nature of the role held by Sergeant Cooper and responded to parts of Sergeant Cooper's witness statement (exhibit 9). 6. The respondent relied upon a written outline of submissions in which it was stated: 2. The Commission should take no further action in relation to the dispute and should dismiss the matter as: (a) the Notifier has failed, without explanation, to comply with the dispute settlement procedure in cl 76 of the Crown Employees (Police Officers – 2021) Award; and (b) The Respondent has complied with s 94B of the Police Act 1990 (NSW), and the Notifier has failed to advance any proper or cogent reason why the Commission should intervene to prevent the decision to medically retire Sergeant Cooper from taking effect. 1. After outlining the background to the dispute, the following was then stated: 8. Importantly, cl 76.10 of the Award provides that, "[n]either party will initiate proceedings under Chapter 3 of the Industrial Relations Act 1996 until procedures under these clauses have failed to resolve the issue and each constituent of the other party has been given three clear days [sic] notice (exclusive of weekends) of that intent…" 1. It was submitted that, by failing to escalate the dispute over the proposed medical retirement of Sergeant Cooper through the prescribed award mechanism in clause 76 of the Crown Employees (Police Officers – 2021) Award ("Award") and by filing the Notification on 15 March 2022, PANSW was in breach of subclause 76.10 of the Award and the Commission should, pursuant to s 131 of the Act, refuse to deal with the dispute. Reliance was placed on the judgement of Flick J in Qantas Airways Limited v Australian Licensed Aircraft Engineers Association (No 2) [2020] FCA 951 at [55]-[56]. 2. In response to the submission by PANSW in relation to s 49 of the WIMWC Act, it was submitted that the Commission has repeatedly held that it is not the Commission's role to enforce that legislation and a number of authorities were cited in support of that proposition. 3. The respondent's outline of submissions then dealt with the case put by PANSW with respect to s 94B of the Police Act and the failure of the respondent to comply with its own SOPs and injury management procedures. 4. The outline of submissions concluded as follows: 38. The Notifier says the medical retirement would be harsh, unjust and unreasonable. This contention cannot be accepted, in circumstances where it is premised on contentions that the Respondent: (a) contravened the WIM Act, which is a matter beyond the jurisdiction of this Commission; (b) did not have medical evidence to support the conclusion that Sergeant Cooper appeared likely to be permanently unfit to perform his duties, in circumstances where the statute does not require such evidence, and where the conclusion as to the apparent likelihood of the permanence of Sergeant Cooper's unfitness was otherwise plainly open to the Respondent; and (c) acted in breach of its own policies, which is not borne out by the evidence, and even if it was, is a procedural matter that does not sufficiently undermine the fact that the Respondent was entitled to exercise her discretion to medically retire Sergeant Cooper under s 94B of the Police Act, and in those circumstances, has reached a view that should not be disturbed. 39. In Jenkins v Secretary, Ministry of Health [2022] NSWIRComm 1013 (at [93]), the Commission concluded, relevantly to the present proceeding: The respondent had a proper basis to conclude that the applicant was unable to fulfil the inherent requirement of his role…Further, the respondent took reasonable and appropriate steps to support the applicant before his dismissal, initially with an aim of having him return to his pre-injury duties, and then in its effort to find suitable employment. There is no obligation upon the respondent to continue to provide the applicant with suitable duties for an indefinite period. 40. The Respondent otherwise relies on the failure of the Notifier to make any attempt to comply with the DSP as a sufficient basis, without more, for the Commission to dismiss the entire dispute. 41. The requirements of s 94B of the Police Act have been met in the case of Sergeant Cooper. Accordingly, the Commission should make no further orders that would prevent his medical retirement from taking effect upon the determination of this matter by this Commission. 42. The Commission should take no further action in relation to the dispute. The proceedings should be dismissed. Case in reply for PANSW 1. In reply to the case presented by the respondent, PANSW relied upon a second witness statement prepared by Sergeant Cooper (exhibit 2). In his second witness statement, Sergeant Cooper responded to aspects of evidentiary case and written outline of submissions relied upon by the respondent. 2. Sergeant Cooper rejected the assertion that, after going off work due to ill health on 9 July 2019, he had not engaged with his Command. He referred to correspondence to him from his Command which was annexed to his first witness statement and to two further letters from Superintendent Toynton dated 3 and 16 June 2020 respectively. Sergeant Cooper claimed that all correspondence to him was responded to in writing by him. He also stated that he engaged with his Command through welfare checks undertaken by Sergeant Russell. 3. Sergeant Cooper disputed the evidence of Ms Noy to the effect that he had not provided permission for NSWPF to liaise with his NTDs and claimed that the Injury Management Unit had been in contact with Dr Emin and had requested and obtained from him a medical assessment. He also referred to his correspondence to Assistant Commissioner Webb of 19 June 2020 which is referred to at [12] above. 4. Sergeant Cooper responded to parts of the evidence of Assistant Commissioner Smith and Ms Noy which dealt with the medical retirement referral and process. He restated his desire and capacity to return to work within the Transport and Road Policing sphere. 5. PANSW also relied upon a second witness statement prepared by Ms Membreno (exhibit 5). In her second witness statement, Ms Membreno claimed that the failure of NSWPF to follow its own medical retirement review procedures and timeframes impacted on the ability of PANSW to comply with clause 76 of the Award which led to the filing of the Notification on 15 March 2022. 6. Ms Membreno also took issue with parts of the evidence of Assistant Commissioner Smith and Ms Noy. 7. PANSW filed a written outline of submissions in reply responding to the outline of submissions relied upon by the respondent. In its reply submissions, PANSW joined issue with the respondent's submissions with respect to the dispute settlement provisions of the Award; s 94B of the Police Act; s 49 of the WIMWC Act; and the respondent's non-compliance with its own policies and procedures. Determination 1. Central to the determination of this matter is consideration of the requirements of s 94B of the Police Act which I will reserve to the end of these reasons for decision. The other issues are dealt with in turn below. Non-compliance with clause 76 of the Award 1. The respondent has submitted that the Commission should dismiss this matter due to the failure of PANSW to exhaust the dispute settlement procedures set out in clause 76 of the Award before bringing the matter to this Commission (at [34] above). PANSW claims that its capacity to comply with the various steps set out in clause 76 was impacted by the respondent's failure to follow its own policies and procedures. 2. Clause 76 of the Award is in the following terms: 76. Disputes/Grievance Settlement Procedure 76.1 The object of these procedures is to avoid disputes/grievances in the first instance and to facilitate the resolution of grievances of individuals and disputes between the New South Wales Police Force and its employees which do occur by conciliation without delay. They are designed to resolve grievances and disputes at the level as close as possible to the source. The procedures have been developed to promote full and open consultation at each step of the process in an effort to promote and preserve harmonious industrial relations. The parties agree that through each stage the relevant facts are to be clearly identified and documented and that the procedures are followed promptly. 76.2 Health and Safety Issues - Procedures In cases where a safety issue is involved, the Association will immediately notify the Region Human Resources Manager who will advise the Industrial Relations Branch. 76.3 If the matter is not resolved the Region Human Resources Manager will refer the question immediately to the Industrial Relations Branch and endeavour to conciliate the matter without delay. 76.4 Subject to this procedure being followed, the Association reserves the right to refer the matter to the appropriate industrial tribunal. 76.5 Procedures in Other Matters Where a grievance/dispute arises in a particular work location, the employee(s) will notify (in writing or otherwise) the immediate supervisor or other appropriate person as to the substance of the grievance/dispute, request a bilateral meeting to discuss it and state the remedy sought. A meeting should be held, with or without the involvement of Association officials, within 48 hours (exclusive of weekends) of the notification. 76.6 Failing resolution of the grievance/dispute further discussions will be held between the Branch or other Association official and the appropriate Local Area or other Commander/Manager who will inform the office of the Region Human Resource Manager (or equivalent) of the dispute. This should take place within 48 hours (exclusive of weekends) of the completion of 76.5 above. 76.7 If the grievance/dispute is not resolved at that level, Association representatives will refer the matter to the Industrial Section of the Association. The Region Human Resources Manager (or equivalent) will refer the matter to Workforce Relations and Reform. The matter will then be discussed between officers of the Association and Workforce Relations and Reform. These actions will take place as soon as it is apparent that the earlier discussions will not resolve the dispute/grievance. 76.8 If a grievance has not been resolved at the conclusion of this stage of discussions, the employer must provide a written response to the grievance, including reasons for not implementing the proposed remedy. 76.9 If a dispute remains unresolved Workforce Relations and Reform will assume responsibility for liaising with the member(s) of the Senior Executive Service of the New South Wales Police Force and advise of the final position of the Commissioner of Police as to the issue in dispute. 76.10 Neither party will initiate proceedings under Chapter 3 of the Industrial Relations Act 1996 until procedures under these clauses have failed to resolve the issue and each constituent of the other party has been given three clear days notice (exclusive of weekends) of that intent. Observance of this period of notice will not prejudice the position of any party to the dispute. 76.11 General Whilst the dispute resolution procedures are continuing normal work and the conditions under which work is performed, prior to notification of the dispute or grievance will continue unless otherwise agreed between the parties. Provided further that in the case of a dispute or grievance involving work health and safety, normal work and the conditions under which work is performed will continue in a manner which avoids any risk to the health and safety of any officer, any other employee of the New South Wales Police Force or any member of the public. 1. The structure and wording of clause 76 do not readily lend themselves to the resolution of a dispute over the proposed medical retirement of a police officer such as Sergeant Cooper and it is doubtful whether subclause 76.11 offers any protection against dismissal while the other provisions of the clause are being worked through. 2. The evidence discloses that, since about May 2021, there had been protracted negotiations between the parties concerning the proposal to medically retire Sergeant Cooper which continued up until and after the decision was made by Assistant Commissioner Smith on 7 March 2022 to medically retire Sergeant Cooper, but not communicated to him until 9 March 2022, with his last day of service to be 17 March 2022, giving him effectively 8 days' notice of the termination of his employment. 3. Regardless of the timeframes set out in the respondent's procedures and the dictates of pay cycles, 8 days' notice of dismissal is entirely insufficient for an officer with approximately 25 years' service with NSWPF. It is unsurprising that PANSW moved quickly to bring the matter before this Commission rather than invoke the provisions of clause 76 of the Award. 4. Section 131 of the Act is in the following terms: 131 Mandatory dispute resolution procedures to be followed first The Commission may refuse to deal with an industrial dispute until it is satisfied that any relevant dispute resolution procedures in an industrial instrument have been followed as far as is reasonably practicable in the circumstances. 1. In this matter, I declined to exercise the discretion that resides in the Commission to refuse to deal with the Notification filed by PANSW on 15 March 2022 on the basis that I formed the opinion that the subject matter of the dispute warranted more urgent attention of the Commission than would have occurred had PANSW invoked clause 76 of the Award. Section 49 WIMWC Act 1. There was much debate during the proceedings about s 49 of the WIMWC Act and the alleged breach of this provision by the respondent in relation to Sergeant Cooper. 2. The most recent learning on this topic was expounded by the Full Bench of the Commission (Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir) in Davidson v Commissioner of Police (No 3) [2022] NSWIRComm 1102, where the following was stated: 29. The questions raised in this appeal have the potential to impact significantly the conduct of matters before the Commission. 30. The appellant presses for an outcome under which, in determining applications pursuant to s 84 of the IR Act, the Commission must consider and determine any claim that any other legislative provision has been breached, or otherwise not complied with, by specifically addressing and determining the terms of the other legislative provision. 31. The respondent says, in summary, that the Commission should consider and determine any issues raised in applications pursuant to s 84 of the IR Act only through the consideration of whether a dismissal was harsh, unreasonable or unjust. 32. The reference to "Colefax" in the passage reproduced at [27] above was to the decision of the Full Bench in Margaritte Joanne Colefax v Secretary, Department of Education (No. 3) [2019] NSWIRComm 1000 ("Colefax"). In that case the Full Bench observed: "76. In making his finding, the Commissioner accepted submissions that had been made by the respondent, which were repeated before the Full Bench, that this Commission has no jurisdiction to make factual or legal findings about an alleged contravention of a determination made by the Workers Compensation Commission. 77. We have some doubts about the conclusion that the Commission is unable to make relevant factual findings for the purposes of exercising its jurisdiction under the Industrial Relations Act. However, this is not an appropriate case in which that issue ought be tested." 33. The observations of the Full Bench in Colefax do not completely determine the questions explicitly now before the Full Bench. That decision nevertheless supports the outcome pressed for by the respondent. 34. The Commission is plainly reposed of jurisdiction to determine whether a dismissal is harsh, unreasonable or unjust. The scope of such a determination is, on its face, broad and capable of taking into account any factual issues raised by either party to the claim. 35. Through s 175, the Commission is empowered to "determine any question concerning the interpretation, application or operation of any relevant law …". Confining the jurisdiction of the Commission in the way the respondent contends would ignore s 175 of the IR Act. 36. Two things should be noted about the Commission's power from the face of the section. Firstly, it is expressly only for the purposes of exercising the functions of the Commission. Secondly, s 175 provides that the Commission "may" determine those matters. 37. Whether the Commission should proceed to determine any question concerning the application, interpretation or operation of another law will depend on it being relevant to the purpose for which the Commission is exercising the functions of the Commission. 38. Most obviously, the restriction as to purpose means that any determination by the Commission cannot be for the purpose of granting any relief available under an act other than one which vests the Commission with jurisdiction. A decision of the Commission would therefore not be a statement of the meaning or effect of any law outside of the Commission's jurisdiction. 39. This restriction, together with the use of "may" in s 175, results in us being unable to accept the appellant's submission that simply by raising questions of breaches of other acts a party has done sufficient to require the Commission to determine whether an act other than the IR Act, or any other legislation investing the Commission with jurisdiction, has been breached. 40. In the current matter, the purpose must be to determine whether the dismissal of the appellant was unfair. The "question" for determination is whether the alleged breach of the "relevant law" rendered the dismissal harsh, unreasonable or unjust. 41. Further, a party seeking to have the Commission exercise the power in s 175 of the IR Act must establish that it is appropriate, as a matter of discretion, for the Commission to exercise that power. Ground 1 42. It is clear from the totality of the impugned paragraphs of the Decision, being [26] and [28]-[29], and the paragraphs of the respondent's submission referred to therein, that in those paragraphs Commissioner Murphy was referring to the purported exercise by the Commission of jurisdiction to make decisions pursuant to the WIM Act. 43. As the Commissioner observed at [29], s 105 of the WIM Act specifically provides the PIC the "… exclusive jurisdiction to examine, hear and determine all matters arising under the [WIM Act] …". 44. The Commissioner's articulation of the questions before him is consistent with the logic we have articulated above, and with the decision of the Commission in Colefax. We agree with the respondent that in reaching those conclusions, the Commissioner " … did not hold that the factual matters pertaining to such a claim were not relevant". 45. While the Commissioner's phrasing of the analysis he should conduct might initially convey that he proposes to disregard the kinds of obligations imposed by s 49 of the WIM Act, we do not agree that he has had no regard to the issues raised by the appellant. 46. Both in the paragraphs of the respondent's submissions adopted by the Commissioner, and in the analysis following his adoption of those submissions at [26], the Decision has addressed the relevant facts in the context of s 84 of the IR Act. 47. The Commissioner has set out that, in the context of the decision he is making pursuant to s89 of the IR Act, he would only consider the respondent's determination that the work of the appellant could not be done part-time as something he should interfere with if he found that determination demonstrated unfairness to the appellant. The Commissioner's findings were made in the terms of s89 of the IR Act, as he is required to do. 48. In our view the Commissioner considered an obligation of the kind created by s 49 of the WIM Act in an appropriate manner in determining the appellant's application pursuant to the IR Act. 1. Whether or not an employer has failed to provide suitable employment to an injured worker who is subsequently dismissed is a matter that this Commission is well equipped to examine in the context of a consideration of whether the dismissal was harsh, unreasonable or unjust. Whether or not the employer breached s 49 of the WIMWC Act is largely irrelevant to that consideration. Further, s 175 of the Act, which empowers the Commission, when exercising its statutory functions, to "determine any question concerning the interpretation, application or operation of any relevant law", does grant the Commission a licence to determine whether or not such a breach has occurred. Section 105 of the WIMWC Act makes that abundantly clear. 2. By way of analogy, the Commission, when dealing with an unfair dismissal application involving an employee who had been dismissed for physically attacking another employee, would, in making an assessment as to whether the dismissal was harsh, unreasonable or unjust, examine the circumstances of the altercation to determine to what extent, if any, the dismissed employee was at fault. In this examination, however, the Commission would not be entitled to make a determination that the dismissed employee, or anyone else for that matter, was guilty of an offence under the provisions of Part 3, Divisions 8 or 9, of the Crimes Act 1990. Simply put, that is not the role or function of this Commission as established under the Act and s 175 does not extend the jurisdiction of the Commission that far. 3. In Davidson v Commissioner of Police (No. 2) [2022] NSWIRComm 1000 I stated: 26. 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. 27. 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. 29. 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. 1. I see no reason to depart from that approach in the present matter. In any event, this case does not turn on the respondent's failure to provide suitable employment to Sergeant Cooper, whether in breach of s 49 of the WIMWC Act or otherwise. It turns on a much more fundamental issue, namely, the obligations imposed on the respondent by s 94B of the Police Act, an issue which, since the High Court ruling in Cottle, this Commission does have undisputed jurisdiction to explore and determine. Non-compliance with Policy and Procedure 1. PANSW claims that the referral of Sergeant Cooper to the Transition Unit was premature given that he was, at the time, still participating in a Recovery at Work Plan (see paragraphs 15-19 of the witness statement of Ms Membreno at [19] above). 2. The respondent claims that its inability to implement it own policies and procedures in the case of Sergeant Cooper was a product of his uncooperative approach to the respondent in refusing to attend IMEs and otherwise failing to meaningfully engage in the management of his injury. Sergeant Cooper denies that this was the case. 3. Regardless of what occurred during the two years that followed Sergeant Cooper going off work due to illness in July 2019, and regardless of who was to blame, in August 2021 Assistant Commissioner Wood, former Commander of Human Resources Command, determined to effectively stay the medical retirement process with respect to Sergeant Cooper to afford him time to attend an IME and then demonstrate that he could upgrade his fitness and return to pre-injury duties. 4. Following the IME, on 16 November 2021, Dr Jetnikoff reported that Sergeant Cooper "appears fit to resume work unrestricted from a psychiatric perspective immediately. He can return to his substantive position." (paragraph 18 at [1] above). Dr Jetnikoff suggested that "six weeks of increasing hours to full-time should be sufficient. This is not a psychiatric issue but should allow him to develop work fitness again" (exhibit 1 p 66). 5. Following a Fitness For Duty ("FFD") assessment of Sergeant Cooper by Ms Graves on 13 December 2021, he returned to work on 5 January 2022 on restricted duties. Under cross-examination, Assistant Commissioner Smith conceded that the six week period suggested by Dr Jetnikoff commenced on 5 January 2022, not 25 October 2021, which meant that the period would have concluded on 15 February 2022 (see [28] above). On 2 March 2022, Ms Skala prepared Injury Management Recover at Work Plan 3 which was not to conclude until 21 March 2022. That document contained the following: Police Operational Requirements: Once Sergeant Kris Cooper has attained pre-injury duty capacity, he may be required to successfully complete a Rehabilitation and Operational Skills Assessment (ROSA) and / or Fitness for Duty Assessment with the Police Medical Officer prior to returning to operational duties. Our Recover at Work Plan works within the fundamental principles of the Australian Consensus Statement on the Health Benefits of Good Work (HBGW) including: - Work is generally good for health and well being - Long term work absence, work disability and unemployment have a negative impact on health and wellbeing. - Work is an effective means of reducing social exclusion - For individuals seeking to return to work post injury / illness good outcomes are more likely when individuals understand the health benefits of work and are empowered to take responsibility of their own situation … As part of the Recover at Work Plan all parties will work together to achieve the identified recovery at work goal. Below details the commitment each party agrees to, in order to support Sergeant Kris Cooper with their recovery: Worker: Sergeant Kris Cooper is to adhere to the Recover at Work Plan and advise their supervisor and/or Injury Management Advisor with any difficulties they may encounter. Sergeant Kris Cooper should notify the Injury Management Advisor and Recover at Work Supervisor or Commander if their work, certificate of capacity or treatment status changes. Medical appointments impacting on Recover at Work Plan hours are to be agreed upon with supervisor in advance. Secondary employment is revoked whilst on a rehabilitation program. Commander / Supervisor To monitor Recover at Work Plan and advise the Injury Management Advisor of any difficulties that may be encountered. The Command should maintain regular contact with Sergeant Kris Cooper to monitor their recovery at work and any associated work needs. To update the Recover at Work Plan as required based on changes in medical certification; treatment and identified duties. Treating Health Providers To educate Sergeant Kris Cooper on their injury and treatment to help their recovery, whilst working collaboratively with all parties involved in the management of Sergeant Kris Cooper's injury. 1. Despite the platitudes about the benefits of work expressed in this document which was, on its face, current until at least 21 March 2022, on 7 March 2022 Assistant Commissioner Smith decided to medically retire Sergeant Cooper. This is a clear failure on the part of the respondent to comply with NSWPF's own procedure as set out at paragraphs 15-17 of the witness statement of Ms Membreno (at [19] above). 2. The respondent submits that the fact that Sergeant Cooper commenced a Recovery at Work process after his file had been referred to the Transition Unit, which initially occurred in May 2021, did not unwind this referral. I disagree. The formulation of Injury Management Recover at Work Plan 3 followed on from the decision of Assistant Commissioner Wood to put the medical retirement process on hold, the attendance of Sergeant Cooper at the IME on 16 November 2021 and the report of Dr Jetnikoff and the FFD assessment of Ms Graves of 13 December 2021. These developments had, if not unwound the referral of Sergeant Cooper to the Transition Unit, at least suspended the process. The decision to medically retire Sergeant Cooper was made during the period of this suspension and at a time when the Recovery at Work process had not concluded. 3. Whether this failure by the respondent to comply with NSWPF's own procedures has rendered the proposed termination of the employment of Sergeant Cooper unfair is a moot point. It may well be that compliance with the procedures may have only served to delay the inevitable. I have found it unnecessary to determine this issue. For the reasons that follow, the proposed medical retirement of Sergeant Cooper is harsh, unreasonable and unjust on a fundamentally much more significant basis than any failure by the respondent to comply with NSWPF policies and procedures dealing with the management of injured police officers. Section 94B Police Act 1. PANSW asserts that the respondent, or her delegate, could not, on the evidence before the Commission, be satisfied that Sergeant Cooper's unfitness or incapacity to perform the duties of his position "appears likely to be of a permanent nature". The material on which it relies may be summarised as follows (extracted from [1] above): Dr Jayalath 17 April 2021: Overall he is clearly progressing towards recovery. The work related stressors are delaying the progress, I can confirm that he will be able to recover to an extent where he will be able to return to his duties. Dr Jayalath 24 June 2021: Compare[d] to when he presented initially in December 2019, Kris has made significant progress in his mental health to an exten[t] where I was discussing returning to work at the previous review. I am confident that he will be able to recover to an extent where he will be able to return to his former duties in a phase return to work. Considering the recent set back in his mental state due to the letter he received, I would propose planning to return to work to be started from October this year. Dr Emin 8 July 2021: In consultation with his psychiatrist, I am of the view that he will recover and will be able to resume his former duties due to good response to treatment. We will continue to monitor his progress towards returning to work and when he returns. Dr Jetnikoff 16 November 2021: Based on the information available Mr Cooper appears to have no active psychiatric disorder. He denies any significant symptoms and expresses a desire to return to work. His examination is unremarkable ... Mr Cooper appears fit to resume work unrestricted from a psychiatric perspective immediately. He can return to his substantive position. This opinion is contingent upon confirmation of his fitness by the current psychiatrist to ensure adequate risk assessment. Ms Graves 15 December 2021: Thank you for referring Sergeant Kris COOPER (RN 32357) for Fitness For Duty (FFD) assessment on 13 December 2021. He completed psychometric assessment and psychological interview. … Sergeant COOPER is deemed fit to return to his RESTRICTED duties role. He is NOT fit for full duties at this time. … When the officer completes his Recover At Work graded return plan, he is required to return for further FFD assessment, prior to a return to full operational duties. 1. I note that Dr Jetnikoff was appointed by the respondent to conduct the IME on Sergeant Cooper. His report is entirely inconsistent with the notion that Sergeant Cooper's unfitness or incapacity to perform the duties of his position "appears likely to be of a permanent nature". 2. The more conservative opinion of Ms Graves, psychologist with the Police Medical Officer's office, who conducted the FFD assessment on Sergeant Cooper, cannot be reconciled with the respondent's assertion that Sergeant Cooper's unfitness or incapacity to perform the duties of his position "appears likely to be of a permanent nature". 3. The strongest evidence in support of the case presented by PANSW on behalf of Sergeant Cooper is that provided by, or at the request of, the respondent. On no basis could it be concluded that this evidence supports the determination by Assistant Commissioner Smith that, as at 7 March 2022, Sergeant Cooper's unfitness or incapacity to perform the duties of his position "appears likely to be of a permanent nature". 4. At [26] above is set out Assistant Commissioner Smith's table of "key events in Sergeant Cooper's history, with respect to his fitness and capacity". In this table there are references to Sergeant Cooper's failure to attend scheduled IMEs or to provide consent for NSWPF to speak to his NTDs during the period from March 2020 to May 2021 when his file was referred to the Transition Unit. I regard these matters of little, if any, relevance to the determination of whether, as at 7 March 2022, Sergeant Cooper's unfitness or incapacity to perform the duties of his position appeared likely to be of a permanent nature. Whist I can understand the apparent frustration within NSWPF at what was perceived to be Sergeant Cooper's lack of engagement with respect to his medical condition, these matters do not touch upon the question of the permanency of that condition. 5. The medical evidence on which the respondent relies in support of the assertion that Sergeant Cooper's unfitness or incapacity to perform the duties of his position "appears likely to be of a permanent nature" may be summarised as follows (extracted from [26] above): 11 July 2019 Sergeant Cooper provided a certificate of capacity, stating he had no capacity for any duties. 2 September 2019 Psychologist Christine Segren opined that Sergeant Cooper had 'acute anxiety and previous of same', and was experiencing anxiety and depression. The report opines that Sergeant Cooper 'is at a high risk to psychological injury becoming worse and possibility of future Post Traumatic Stress Disorder'. 27 March 2020 Sergeant Cooper's Nominated Treating Doctor (NTD), Dr Alaadin Emin, opined Sergeant Cooper was unlikely to return to pre-injury duties. 24 June 2021 Psychiatrist Dr Sajeeva Jayalath provided an opinion that Sergeant Cooper had suffered a recent 'setback' to his mental health, but 'will be able to return to his former duties in a phase (sic) return to work', although no timeframes for this phased return to work were provided. 8 July 2021 NTD Dr Eman opined that Sergeant Cooper 'will recover and will be able to resume his former duties', although no timeframe was provided. 16 November 2021 The IME report by Psychiatrist Dr Nicholas Jetnikoff opined that Sergeant Cooper was fit to immediately resume duties, unrestricted. However, the report recommended that Sergeant Cooper be gradually returned to full duties over a period of six weeks. 22 February 2022 Sergeant Cooper provided a certificate, continuing to restrict him to perform 3 hours per day, 3 days per week and 'gradual exposure to pre injury duties in pre injury work environment'. 1. It will be seen that, up until mid 2021, the medical evidence did not support a conclusion that Sergeant Cooper would return to his pre-injury position. However, that changed with the opinions of Dr Jayalath in June 2021 and Dr Emin in July 2021. 2. Significantly, Assistant Commissioner Wood in August 2021 put the medical retirement process on hold and afforded Sergeant Cooper time to attend an IME and then demonstrate that he could upgrade his fitness and return to his pre-injury duties. I regard Assistant Commissioner Wood's intervention as effectively drawing a line in the sand with respect to what had gone before and providing Sergeant Cooper with an opportunity to demonstrate why, in his case, the requirements of s 94B of the Police Act had not been met. 3. Since that time, all of the medical evidence, in particular, the report of Dr Jetnikoff following the IME on 16 November 2021, points to a conclusion that Sergeant Cooper's unfitness or incapacity to perform the duties of his position does not appear likely to be of a permanent nature. Nothing that has been put by the respondent by way of non-medical evidence alters that conclusion. The fact that Sergeant Cooper was still working restricted hours beyond the timeframe initially recommended by Dr Jetnikoff does not, without more in the nature of, for example, a contrary medical report, support the conclusion that his unfitness or incapacity to perform the duties of his position appears likely to be of a permanent nature. 4. As a consequence, s 94B of the Police Act did not authorise the respondent or her delegate to medically retire Sergeant Cooper. It follows that the decision of Assistant Commissioner Smith of 7 March 2022 that Sergeant Cooper be medically retired with his last day of service to be 17 March 2022 was made without any statutory basis and, as a result, constituted an unfair (threatened) dismissal. 5. I confirm the order and recommendations that I made on 8 June 2022. 6. These proceedings are concluded. John Murphy Commissioner ********** 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: 13 January 2023