Industrial Relations Commission New South Wales Medium Neutral Citation: Regan v Commissioner of Police [2023] NSWIRComm 1019 Hearing dates: 8 December 2022 Date of orders: 10 March 2023 Decision date: 10 March 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner O'Sullivan Decision: The application is dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Termination – Unfair dismissal – medical retirement – whether dismissal harsh, unreasonable or unjust Legislation Cited: Industrial Relations Act 1996 (NSW) Police Act 1990 (NSW) Cases Cited: Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 Commissioner of Police v Cottle [2022] HCA 7 Burge v NSW BHP steel Pty Ltd [2001] NSWIRComm 117 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273. Clarke v Health Secretary (Justice Health and Forensic Mental Health Services) [20021] NSWIRComm 1022 Texts Cited: NIL Category: Principal judgment Parties: James Charles Regan (applicant) Commissioner of Police (respondent) Representation: Self represented (applicant) Counsel: J Darams (respondent) Solicitors: Kingston Reid (respondent) File Number(s): 2016/00332440 Publication restriction: NIL decision 1. The applicant was a serving police officer with the New South Wales Police Force (the "Force") who on 6 October 2016, was medically retired (the "Removal") pursuant to s 72A of the Police Act 1990 (NSW) as it then was (the "Police Act"). 2. On 7 November 2016 the applicant filed an unfair dismissal application pursuant to s 84 Industrial Relations Act 1996 (NSW) (the "IR Act") (the "Application"), seeking the remedy of reinstatement. 3. The hearing of the Application has taken some time due to various reasons, which include waiting on the outcome of the decision of the High Court in NSW Commissioner of Police v Cottle [2022] HCA 7. 4. For the reasons set out below, I have decided to dismiss the Application. Background 1. The applicant commenced employment with Transport Investigations Branch of State Rail, on 6 January 1986. On 1 February 1988 the applicant commenced with the force when the Transport Investigations Branch became Transport Police Branch. 2. The applicant served in a number of different roles within the Force and was ultimately transferred to the then Forensic Services Group in August 2012 and remained there until the conclusion of his service. 3. On 17 February 2015, the applicant provided two WorkCover certificates of capacity issued by his general practitioner, Dr Batagol which certified the applicant as unfit to perform work from 19 December 2014 through to 16 February 2015. 4. The applicant recommenced duties on 17 February 2015 and remained on duty until 11 June 2015. 5. From 12 June 2015 until 22 June 2015, the applicant was unable to perform any duties consistent with a WorkCover certificate of capacity dated 12 June 2015 issued by Dr Batagol. 6. On 22 July 2015 the applicant returned to duties but ceased duties on 21 August 2015 after Dr Batagol issued a WorkCover certificate of capacity which provided the applicant was unfit to perform any work. 7. On 18 May 2016 the applicant attended an independent medical examination with Dr Abeya, psychiatrist. 8. Dr Abeya provided a medical report of 1 June 2016 in which she advised that the applicant had capacity to work full hours in a non-operational alternative role to that of his pre-injury role. 9. A case conference meeting took place on 13 June 2016, which was attended by the applicant, Dr Batagol and representatives of the respondent. In the meeting, the applicant indicated that he was not ready to return to work and following the meeting Dr Batagol issued WorkCover certificates stating that the applicant was unfit for any type of work. 10. In an updated report dated 15 September 2016, Dr Abeya provided the following opinion: I was previously of the view that Mr Reagan could be considered for temporary alternative duties and that he was unfit at least temporarily for his substantive role. I had mentioned in my report that I felt Mr Reagan was rigid in his thought patterns and likely to be somewhat inflexible owing to constitutional factors. He has made a decision not to return to work till the potential case is gone through the Supreme Court. And he has not accepted reasonable alternative duties. In the background of these facts it is clear that Mr Reagan is unlikely to return to work with the NSW Police Force in the foreseeable future. From an emotional perspective he clearly feels the need to seek what he feels is a fair hearing of his grievances and given his constitutional characteristics is unlikely to change his stand. Indeed pushing against this could case an extra degree of stress owing to his perceptions. Practically if he has not yet started the court process and given the length of time such a process could take, it is highly unlikely that he would be able to return any time soon. This delay is likely to further exacerbate his negative cognitions about the Force. 1. In this supplementary report, Dr Abeya was asked to give her advice as to whether the applicant was likely to make a return to the Force in the foreseeable future to which the Doctor provided the following answer: Given the above facts, I am of the opinion that he is unlikely to make a successful return to the NSW police force in the foreseeable future. 1. On 27 September 2016, correspondence was sent to the applicant informing him that his referral for medical discharge had been received by the Medical Discharge Unit. This correspondence also stated that the Medical Discharge Review Panel (the "Panel") would review his case on 6 October 2016. 2. The applicant on 28 September 2016, by way of email requested that the consideration for medical report Department be deferred until 17 January 2017 to provide further time for him to regain sufficient focus after receiving psychological and psychiatric help and to have lodged documents before the Supreme Court and another body. He also went on to state, that he would be submitting further materials prior to 6 October 2016 for the Panel to consider. 3. A representative of the respondent wrote to the applicant on 30 September 2016, confirming receipt of the applicant email of 28 September 2016 and that any of the foreshadowed materials to be sent in by the applicant prior to 6 October 2016 would be referred to the Panel. 4. The applicant did not submit any further materials for referral to the Panel which met on 6 October 2016. The Panel which provided approval for the applicant to be medically discharged pursuant to s 79A as it then was if the Police Act (the "Dismissal"). Approach 1. The guiding consideration in relation to an application made pursuant to s 84 of the IR Act, is for the Commission to determine whether the dismissal was harsh, unreasonable or unjust: Burge v NSW BHP steel Pty Ltd [2001] NSWIRComm 117. 2. It is the applicant who bears the onus to prove whether the dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273. 3. The leading authority as to what constitutes harsh, unreasonable and unjust is in the following passage from the joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 1. Section 89 of the IR Act sets out a number of matters which the Commission may have regard to in determining an unfair dismissal application. It is unnecessary to set out this provision here. The Cases Presented 1. The applicant commenced his submissions by asserting that directions given to him to undertake certain forensic procedures in relation to serious indictable offenders, were unlawful and unreasonable. 2. Following the above submission, the applicant was invited to direct his submissions towards the reason for the Dismissal, and he was provided with an extended lunch adjournment of just over 2.5 hours before finalising his submissions. 3. Upon recommencement of the hearing, the applicant submitted that he relied upon the following passage from the decision of Chief Commissioner Constant in Clarke v Health Secretary (Justice Health and Forensic Mental Health Services) [20021] NSWIRComm 1022 in support of his case: "However, the failure by an employer to take reasonable steps to accommodate the employee's limitations may render a termination harsh, unjust and unreasonable." 1. The applicant then went onto make a number of irrelevant submissions concerning certain disciplinary matters and then made the following submissions when asked by the Commission to address the issue in relation to the medical evidence regarding his inability to perform work in the foreseeable future: No, it doesn't undo that, sir I was ready to return to any suitable position. However, Fairfield was not an option. As far as I can see, it was being thrown back into an operational command with people I didn't know and uncertain duties. I was being set up to fail. I'd have certainly have gone to the Metropolitan exhibits and Property Centre which was on the table but aside from the Metropolitan exhibits and Property Centre which was suddenly curtailed, Fairfield was the only option held out to me. That wasn't acceptable to me and it wasn't acceptable to my treating doctor knowing the stress that that would have placed me under. I think I reflected as much to Dr Abeya as well. If we go to p 380, the first paragraph records the fact that I thought I was being set up to fail and it goes on to say, "Other alternative duty types and locations were also offered." That, sir, is a complete nonsense. No other options other than Fairfield were offered. 1. The applicant also made submissions to the effect that the respondent should have not relied on the amended report of Dr Abeya of 15 September 2016, as the applicant had not had any opportunity to consult or be examined by the Dr prior to the report being produced. Instead, the applicant submitted that the report of Dr Abeya 1 June 2016 should have been relied on, which provided that he was fit for return to a non-operational role. Furthermore, he submitted that he was not aware of its' existence until the commencement of these proceedings. 2. In reply the respondent commenced by pointing to the Workcover certificates of capacity issued by the applicant's treating practitioner, Dr Batagol. These certificates provided that the applicant was unfit to perform any duties from 21 August 2015 and stretching through to 12 September 2016. 3. As to the further medical report of Dr Abeya, the respondent made the following submission: "So then the next thing I wanted to go to was 402. Now, the chronology here is important again, and as Mr Regan conceded in answer to your question, Commissioner, there isn't anything as I understood his concession there was nothing inaccurate about what Dr Abeya set out in this report. But it's obvious from reading Dr Abeya's report that she's had regard to the circumstances of things that were said in the meeting on 23 June or 16 June 2016. Dr Abeya has also had regard to her previous advice back in June about her opinion at that time, and we see that in that under the opinion paragraph: "I was subsequently of the view that Mr Regan could be considered for temporary, alternative duties." And then accepting the concession none of this is inaccurate the second paragraph, "He's made a decision not to return to work till the potential case has gone through the Supreme Court and he has not accepted reasonable alternative duties." And then this is the important part of it is that in the background of these facts: "It's clear that Mr Regan is unlikely to return to work with New South Wales Police Force in the foreseeable future. From an emotional perspective, he clearly feels the need to seek what he feels is a fair hearing of his grievances, and given his constitutional characteristics the psychological makeup is unlikely to change his stand. Indeed, pushing against this could cause the case an extra degree of stress owing to his perceptions. Practically, if he has not yet started the Court process and given the length of time such process could take, it's highly unlikely he would be able to return to it any time soon. This delay is likely to further exacerbate his negative cognitions about the Force." 1. The respondent also submitted that the applicant was provided with an opportunity to put before the Panel any materials or information which could support his request to have the Dismissal put over till January 2017 and none was provided. Decision 1. The Dismissal was for the sole reason that he was unable to perform his duties due to health reasons and not for any performance related issues. 2. The applicant was unable to point to any evidence that the conclusion reached by the respondent in relation to fitness to work was flawed. Unfortunately, he was fixated by issues which were irrelevant to the Dismissal. 3. The medical evidence before this Commission and before the Panel, leads to the obvious conclusion that the applicant was not fit to perform any duties and would not be able to do so in the foreseeable future. This evidence included that of his own treating practitioner. 4. I am satisfied that the reason for the Dismissal had a sound basis and the applicant was provided with procedural fairness and accordingly the applicant has failed to prove that the dismissal was harsh, unreasonable or unjust. 5. For the above reasons, I order that the application is dismissed. ********** 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: 10 March 2023