Roberts v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1039

Industrial Relations Commission New South Wales Medium Neutral Citation: Roberts v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1039 Hearing dates: 20 and 21 September 2022 Date of orders: 28 April 2023 Decision date: 28 April 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Muir Decision: The application for review is dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Police — Removal – Vaccination – Lawful Direction – Misconduct Legislation Cited: Police Act 1990 ss 181D, 181E, 181F Cases Cited: Benic v State of New South Wales [2010] NSWSC 1039 State of New South Wales v Fahy (2007) 232 CLR 486 Category: Principal judgment Parties: David Roberts (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: D Roberts (Self-represented)

Counsel: M Seck (Respondent)

Solicitors: Makinson d'Apice (Respondent) File Number(s): 2022/75503 Publication restriction: Nil

decision

Summary 1. The Respondent's Summary of Case succinctly summarised the essential facts of the case, by way of a section headed "Background". The following summary is largely taken from that document. 2. The applicant was a police officer and a member of the NSW Police Force (NSWPF) from 9 December 2016 until his removal on 4 March 2022. At the time of his removal, the applicant held the rank of Constable. 3. On 7 September 2021, the then Commissioner of Police issued a direction (Direction) that all members of the NSWPF must receive a COVID-19 vaccination. The Direction required at least one dose of a COVID-19 vaccination to be received by 30 September 2021 and a second dose to be received by 30 November 2021 (Vaccination Requirement). 4. The Direction set out the rationale for its making, as well as the ways in which a NSWPF member may have sought to be exempted from the Vaccination Requirement. 5. On 18 September 2021, the applicant applied to be exempted from the Vaccination Requirement (Exemption Request). 6. On 25 September 2021, the respondent issued a NSWPF-wide reminder of the Direction and the Vaccination Requirement. 7. On 30 September 2021, the respondent reminded the applicant of the Direction and provided him with a further seven days to comply with the Vaccination Requirement. 8. On 1 October 2021, the Applicant responded stating that he "believe[s] it is [his] choice to refuse a medical treatment/intervention, especially of a trial medication, which this still is". 9. On 5 October 2021, the respondent wrote to the applicant and informed him that his Exemption Request had been declined. The applicant was informed that he was being given a further seven days to comply with the Vaccination Requirement. 10. On 12 November 2021, the applicant was served with a notice (181D Notice) under s 181D(3)(a) of the Police Act 1990 (Police Act). The 181D Notice set out that the respondent was considering the applicant's suitability to remain as a police officer. 11. The 181D Notice alleged that the applicant had: "failed to receive one or both dose(s) of a COVID-19 vaccine; and/or failed to provide evidence of [his] vaccination status." 1. On 16 December 2021, the applicant provided a written response to the 181D Notice (181D Response). The applicant denied that he had deliberately chosen not to comply with the Direction and questioned whether the Direction was lawful and reasonable. 2. On 4 March 2022, the applicant was served with an order under s 181D(1) of the Police Act, signed by the Commissioner and dated 25 February 2022 (181D Order). The 181D Order concluded that the Commissioner did not have confidence in the applicant's suitability to continue as a police officer, and removed him from the NSWPF. The 181D Order was accompanied by the Commissioner's Statement of Reasons (Statement of Reasons).