Industrial Relations Commission New South Wales Medium Neutral Citation: Basan v Commissioner of Police (No 3) [2023] NSWIRComm 1028 Hearing dates: 19 & 20 December 2022 Date of orders: 12 April 2023 Decision date: 12 April 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner O'Sullivan Decision: In 2020/00007495: The application is dismissed In 2020/00007514: The application is dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Termination – Unfair dismissal – medical retirement – whether dismissal harsh, unreasonable or unjust EMPLOYMENT AND INDUSTRIAL LAW – Termination – Victimisation – medical retirement – whether applicant dismissed or otherwise subjected to detriment on the basis of a proscribed reason Legislation Cited: Industrial Relations Act 1996 Police Act 1990 (NSW) Cases Cited: Basan v Commissioner of Police (No. 2) [2022] NSWIRComm 1033 Board of Bendigo Regional Institute of Technical and Further Education v Barclay Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR Burge v NSW BHP steel Pty Ltd [2001] NSWIRComm 117 Commissioner of Police v Cottle [2022] HCA 7 Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance [2017] NSWIRComm 1036 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Paula Lee and Ausgrid (No 6) [2013] NSWIRComm 62 Tapia v Lagoon Seafood Restaurant [2003] NSWIRComm 341 Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Texts Cited: NIL Category: Principal judgment Parties: John Basan (applicant) Commissioner of Police (respondent) Representation: Self-represented, with the assistance of Mr Cavallaro (applicant) Counsel: Mr M Seck (respondent) Solicitors: Kingston Reid (respondent) File Number(s): 2020/00007495 2020/00007514 Publication restriction: NIL decision 1. On 12 December 2019 the applicant's 28 years of service as a member of the New South Wales Police Force (the "Force") concluded when he was medically retired (the "Dismissal") by the respondent's delegate pursuant to s 94B of the Police Act 1990 (NSW) (the "Police Act"). 2. The applicant has filed the following two applications in relation to the Dismissal: 1. an unfair dismissal application pursuant to s 84 of the Industrial Relations Act 1996 (NSW) (the "IR Act") (the "UD Application"); and 2. an application seeking relief from victimisation s 213 of the IR Act (the "Victimisation Application"). 1. For the reasons set out in this decision, I have decided to dismiss both applications. Factual Background 1. The following facts that fall from the evidence are relevant to both the UD Application and the Victimisation Application. 2. The applicant commenced his service as a member of the Force in 1991 and in 2012 he transferred to the Police Transport Command from the State Protection Group Dog Unit. 3. On 7 March 2017, the applicant was informed that he was the subject of an internal complaint investigation and as a result he was placed on an Interim Risk Management Plan. 4. Also on 7 March 2017, the applicant lodged a P902 Work Injury Notification Form. 5. From 7 March 2017 through to March 2018, the applicant's capacity for work fluctuated and he was placed at Camden Local Area Command performing non-operational duties in line with workers compensation certificates of capacity that he provided during that period. 6. On 2 March 2018, the applicant was referred to the Police Medical Officer (the "PMO") for medical assessment. 7. On 15 March 2018, the applicant was suspended from duties following an investigation into some misconduct issues. 8. The applicant attends the PMO for an assessment on 19 April 2018. The PMO provides a report on 7 May 2018 that states that the applicant is not fit for operational duties but is fit for non- operational duties. 9. The applicant is served with a show notice pursuant to s 181D of the Police Act on 27 July 2018, which the applicant responded to on 18 September 2018. 10. On 3 December 2018 the applicant was informed that he would not be removed from the Force but would be the subject of some other form of management action. 11. On 20 December 2018, the applicant provided a medical certificate from his treating medical practitioner that stated he was unfit for any duties from 20 December 2018 to 21 January 2019. 12. The applicant attended a further medical assessment with the PMO on 20 December 2018. 13. In a report dated 22 December 2018, the PMO determined that the applicant was unfit to perform any duties and should be re-assessed early in 2019. 14. The applicant's treating practitioner certified the applicant unfit to perform any duties in monthly Workcover Certificates of capacity from February 2019 up until November 2019. 15. On 2 May 2019 the applicant was assessed by the Chief Medical Officer (the "CMO") who provided the following opinion in an email of 5 May 2019: My medical opinion is that, with appropriate support, the officer is fit to be served the IRP papers and that his fitness for duties needs to be re-evaluated after this has happened. 1. The applicant was served with a notice dated 17 May 2019 pursuant to section 173(5) of the Police Act, in which the applicant was informed that the respondent was considering reducing his incremental level and placing him on a disciplinary transfer. 2. On 4 June 2019 the applicant was informed by way of an email that the respondent was going to submit a referral to the Transition Unit which was going to consider whether the applicant should be medically retired. 3. On 21 June 2019, the applicant through his then legal representative provided a written response to the 173(5) notice. 4. On 11 July 2019 the applicant was informed of the referral to the Transition Unit and that he could put further materials forward if he wished to dispute whether he should be medically retired. 5. After initially indicating that he would dispute being medically discharged, the applicant in an email dated 23 July 2019 indicated that he would not be disputing the medical discharge and stated: "I think I am comfortable with it." 1. On 25 July 2019 the applicant was served with an order pursuant to s 173(2) of the Police Act 1990, which stated that the respondent had determined to reduce the applicant's incremental level and placing him on a disciplinary transfer (the "Disciplinary Action"). 2. On 12 August 2019, the applicant filed an application with the Commission pursuant to section 174 of the Police Act on 12 August 2019, appealing the Disciplinary Action. 3. On 19 October 2019 Assistant Commissioner McCusker receives and reviews a copy of the Medical Retirement Review Submission in relation to the applicant and she decides that additional information is required from the applicant's nominated treating doctor, Dr Holland-Keen. 4. In an email dated 15 November 2019, Dr Holland-Keen provided the following response to the information sought by the respondent regarding the applicant's fitness for duties: I confirm in response to your email dated 15/11/19, that I support the medical retirement of John Basan. He is permanently unfit to return to the NSW Police Force in any capacity. 1. On 28 November 2019, the Assistant Commissioner determines that the requirements of s 94B of the Police Act have been met and he is to be medically retired from his service with the Force on and from 12 December 2019. 2. On 29 November 2019, the applicant is informed of the Dismissal. Procedural History 1. Both the UD Application and the Victimisation Application were filed on 6 January 2020. 2. On 29 January 2020, both applications were the subject of an unsuccessful conciliation before Commissioner Murphy. 3. Both applications were listed a number of times for which directions were made. 4. The respondent filed a notice of motion on 17 February 2022 in both applications seeking to strike out the applications on the basis that they were both out of time and that the unfair dismissal and victimisation provisions of the IR Act did not apply to the applicant as he was medically retired (the "Motions"). 5. In relation to the out of time aspects of the Motions, Commissioner Murphy in Basan v Commissioner of Police (No. 2) [2022] NSWIRComm 1033 found in favour of the applicant and dismissed that part of the Motions. 6. The balance of the Motions were held in abeyance, pending a decision of the High Court dealing with the application of the IR Act to individuals seeking to challenge their removal from the force arising from medical retirement under the Police Act. 7. The High Court in Commissioner of Police v Cottle [2022] HCA 7 determined that Mr Cottle could challenge his medical retirement from the Force under the unfair dismissal provisions of the IR Act. 8. Following the decision in Cottle, the balance of the Motions were abandoned and the applications were set down for hearing of the substantive issues. 9. At some point in time, it was agreed that the applicant's s174 application seeking a review of the Disciplinary Action was stood over pending the outcome of these two applications. 10. The parties filed materials in both applications, including written outlines of submissions and witness statements/affidavits. 11. The applications were heard together on 19 and 20 December 2022. At the hearing the applicant was assisted by Mr Cavallaro and in support of his applications the applicant tendered two witness statements, the first dated 20 June 2022 and the second dated 19 August 2022. 12. The respondent took a practical approach to the contents of the applicant's witness statements. Although there were numerous parts of the evidence which were objectionable, the respondent did not oppose these going in but submitted these were subject to a matter of weight. 13. The respondent did not cross examine the applicant in relation to his evidence. 14. The respondent relied on affidavits of the following persons: 1. Assistant Commissioner Leanne McCusker; 2. Chief Inspector Robert Danks; 3. Superintendent Michael Rochester; and 4. Ms Mary Noy. 1. Each of the respondent witnesses were cross examined in relation to their evidence. 2. Oral submissions were made by each of the parties at the conclusion of the evidence. Principles 1. Before summarising and considering the parties' submissions, it is appropriate to set out the well settled approach to unfair dismissal and victimisation claims under the IR Act. Unfair Dismissal 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; Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70) 3. The Commission in determining an application made under s 84 may take into account, a number of matters set out in s 88 of the IR Act. It is not necessary to set these matters out. 4. Under ss 87(1) of the IR Act the Commission is required to determine the claim by making an order under section 89, dismissing the application, or making any other order it is authorised to make under the IR Act. Victimisation 1. The Victimisation Application relies on section 213 of the Act, which is in the following terms: 213 Enforcement (1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part. (2) The Commission may, in particular, for that purpose do any one or more of the following— (a) order the reinstatement or re-employment of an employee, (b) order the employer to promote or otherwise advance an employee in his or her employment, (c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone, (d) order the employer to employ a prospective employee, (e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat, (f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity, (g) make consequential orders (including orders concerning continuity of service). 1. Sections 209 to 212 contain protection of employees from specific action because of certain reasons. In the Victimisation Application, the applicant identifies that he relies on s 210 of the Act which is in the following terms: 210 FREEDOM FROM VICTIMISATION (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person-- (a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or (b) does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or (c) refuses to engage in industrial action, or (d) exercises functions conferred under this Act, or (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or (f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or (i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or (ia) informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety National Law (NSW) , or (ib) reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator (within the meaning of the Transport Administration Act 1988) or a person employed in the Transport Service, or (ic) informs any person or body of, or gives evidence in relation to, a breach or alleged breach of the Dangerous Goods (Road and Rail Transport) Act 2008 or the regulations under that Act (or a provision of a law of another State or Territory that corresponds to that Act or those regulations), or (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011 , or (k) assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995 . (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. 1. The clear prohibition on an employer or industrial organisation under s 210 is that they must not "victimise" an employee because of any identified reasons in sub-paragraphs 1(a)-(g). 2. Although the term "victimise" is not defined in the Act, its meaning is to be inferred from ss 210(2) which to an employee suffering any detriment (Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance [2017] NSWIRComm 1036 at [16]). 3. Justice Glynn in Tapia v Lagoon Seafood Restaurant [2003] NSWIRComm 341 at [296]-[297]) in construing the meaning of victimise and detriment in the context of s 210 and 213 reached the following conclusion: ...In the use of the word "detriment" in s 210(2) it can be seen that the legislature has adopted, in part, the definition of "victimise" as found in Davis24 at p 381: "The word "victimise" ... where used in s 210 should therefore be interpreted as "cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment 1. The presumption in ss 210(2) operates on the employer such to require it to prove that the protected attribute pleaded by the applicant in paragraphs 210(1)(a)-(k) of the IR Act was not a substantial and operative reason for the respondent making the decision which caused the detriment suffered by the applicant. 2. The full bench in Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 ("Superpace") at [43] explained when and how the reverse onus in ss 210(1) operates as follows: ...we consider that the terms of s 210(2) are clear: once an employee or prospective employee has demonstrated detriment as a result of an action by an employer or industrial organisation and the alleged cause of that detriment falls within the classes of victimisation in s 210(1), then it is presumed that employee or prospective employee was victimised. The employee will be required to prove the elements of the alleged reason for victimisation being the elements of one or more of the paragraphs in s 210(1) (for example, an applicant under s 210(1)(j) will need to prove the existence of a complaint about a workplace matter concerning safety for the purposes of that sub-section). In the face of the presumption in s 210(2), the onus is then on the employer or industrial organisation to show that the "alleged matter" was not "a substantial and operative cause of the detrimental action. 1. Superpace makes it clear that the reverse onus is not operative until the employee has made out the existence of the detriment and the elements of the prohibited reason set out in one of the paragraphs under ss 210(1). 2. In Paula Lee and Ausgrid (No 6) [2013] NSWIRComm 62 ("Lee") the Full Bench applied the reasoning of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 ("Barclay"). 3. In Barclay, Gummow and Hayne JJ dealt with the nature of the enquiry to be undertaken and explained that it would be misleading to use the terms "objective" or "subjective" to describe the enquiry into what reason actuated the decision maker and at [72] they stated: The High Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made. 1. In Lee, their Honours in applying Barclay found that in relation to the reverse onus in ss 210(2), it is necessary to consider the direct evidence of the decision-maker as to their state of mind, intent, and purpose. Consideration 1. Neither the applicant nor his support person, Mr Cavallaro, were legally trained and had limited experience in conducting matters before this Commission. Given this, I have taken a some what less than rigid approach to the case presented by the applicant. 2. I also should note that counsel for the respondent, Mr Seck, also adopted an approach which did not seek to take advantage of the applicant's position and put to the Commission what he understood to be the applicant's case, even though this was not neatly encapsulated in the applicant's written and oral submissions. 3. The applicant's case in relation to the UD Application, fell into four grounds the last of which is also the ground relied upon for the Victimisation Application: 1. The respondent in medically retiring the applicant relied upon a Workcover certificate of capacity dated 23 November 2019 that was invalid as it was not signed by the applicant. 2. The respondent failed to obtain the consent of the applicant prior to communicating with Dr Holland-Keen as allegedly required under guidelines promulgated by the State Insurance Regulatory Authority ("SIRA"); 3. The respondent had not followed the requisite process under the Police Act for medical retirement; and 4. He was dismissed because of the s 174 proceedings that he had commenced. 1. The fourth ground was the only one advanced by the applicant in support of the Victimisation Application. Ground One 1. In relation to the first ground, although the certificate of 23 November 2019 was not signed by the applicant, the evidence of the decision maker, Ms McCusker, was that she had not seen this certificate at the time she made her decision. Accordingly, as she had not seen the certificate she could not have taken this certificate into account and therefore this ground is not made out. Ground Two 1. As to the second ground, SIRA is a body which regulates motor accidents, CTP insurance, workers compensation insurance and the home building compensation scheme in New South Wales. Any guidelines issued by SIRA would presumably apply to the various insurers governed by SIRA. 2. The applicant was invited to but was unable to provide any basis upon which the SIRA guidelines requiring consent of the applicant applied to the process undertaken by the respondent under the provisions of the Police Act which resulted in information being provided to the respondent by Dr Holland-Keen. 3. Even if it was the case that the SIRA guidelines did apply, the only evidence that the applicant advanced in support of the allegation that he had not provided consent, was by reference to the 23 November 2019 certificate which he did not sign. The difficulty with this, is that the communication with Dr Holland-Keen which provided the information relied on by the respondent to medically retire the applicant took place prior to 23 November 2019. 4. For the reasons immediately above, the second ground has not been made out. Ground Three 1. The third ground, as best understood, was that the applicant could not be medically retired under s 94 of the Police Act, as his unfitness or incapacity to discharge his duties arose from actual misconduct and thus excluded by s 94B which is as follows: 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. The applicant cross examined the decision maker, Assistant Commissioner McCusker, regarding handwritten comments made by Inspector Fenwick and Superintendent Driver referring to the possibility of the ss 94B (b) exclusion that appeared in the medical retirement submissions that she considered. Ms McCusker answer was to the effect that that the exception did not apply as there was nothing in the medical information provided to her that would lead to that conclusion. 2. Ms McCusker's answer accords with the medical evidence placed before the Commission, in that none of the medical practitioners opines that the applicant's medical condition that gave rise to the medical retirement was caused by the applicant's actual misconduct. 3. I accept the evidence of Ms McCusker and the submissions of the respondent that requirements of s 94B of the Police Act have been met. Accordingly this ground is not made out. Ground Four 1. In the filed Victimisation Application, the applicant claims that the protected attribute relied on was ss 210(1)(d) i.e. that his s 174 Police Act application was an exercise by him of his right under the IR Act and he was dismissed because of this. 2. The respondent correctly submitted that the applicant's 174 application did not fall within s 210(1)(d) of the IR Act given it was an application made pursuant to the Police Act and not the IR Act. However, the respondent conceded that there was a protected attribute for the purposes of s210(1)(g) being the participation in proceedings before the Commission arising from his s174 application. 3. The Dismissal clearly constitutes a detriment and thus an act of victimisation if the protected attribute was a substantial and operative reason for the Dismissal. 4. In relation to the reverse onus, the respondent sought to rebut the presumption under s 210(2) through the direct evidence of the decision maker, Ms McCusker. 5. Ms McCusker's evidence was that she was not motivated to make the decision to medically retire the applicant because the applicant had brought the s 174 application. She maintained her evidence under cross examination and there was no other objective evidence that contradicted this, and I see no reason why I would not accept Ms McCusker's evidence. 6. The respondent has rebutted the presumption and accordingly the Victimisation Application must fail. Further, the decision to medically retire the applicant was purely based on the medical evidence which was placed before MS McCusker and is not a reason which would render the dismissal harsh, unreasonable or unjust. Orders 1. On the reasons set out above I make the following orders: 1. In 2020/00007495 the application is dismissed; and 2. In 2020/00007514 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: 12 April 2023