Denshire v Commissioner of Police, New South Wales Police Force [2023] NSWIRComm 1048

Industrial Relations Commission New South Wales Medium Neutral Citation: Denshire v Commissioner of Police, New South Wales Police Force [2023] NSWIRComm 1048 Hearing dates: 2, 16 May 2023 Date of orders: 16 May 2023 Decision date: 16 May 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: Bolton v Commissioner of Police (No 2) [2021] NSWIRComm 1055 Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236 Roberts v Commissioner of Police, New South Wales Police Force [2023] NSWIR Com 1039 Tredinnick v Commissioner of Police [2016] NSWIRComm 1026 Category: Principal judgment Parties: Jacqueline Denshire (Applicant) Commissioner of Police, New South Wales Polices Force (Respondent) Representation: Counsel: M Watts (Respondent)

Solicitors: Kingston Reid (Respondent) File Number(s): 2022/00218550 Publication restriction: Nil

EX TEMPORE decision 1. This is an application pursuant to s 181E of the Police Act 1990 (the Act). The applicant's claim is that the order served on her pursuant to s 181D(1) of the Act was harsh, unreasonable and unjust and should be reviewed. 2. The applicant did not lead any evidence and the evidence led by the respondent did not actually address the specific circumstances leading to the removal of the applicant from the New South Wales Police Force (NSWPF). The respondent's evidence addressed the policy background only. That said, the process was not contested as to the events. 3. Largely from the section titled "Background" in the respondent's Summary of Case, I proceed on the basis that the following is the relevant course of events that led to the applicant's removal. I note that this accords with matters set out in the exchanged correspondence between the parties about that removal. 4. The applicant was a police officer and a member of the NSWPF from 30 April 2004 until her removal on 8 July 2022. At the time of her removal, the applicant held the rank and grade of senior constable. 5. On 7 September 2021, the Commissioner of Police issued a direction that all members of the NSWPF receive a COVID-19 vaccination in order to perform their duties (Direction). The direction required at least one dose of a COVID-19 vaccination to be received by 30 September 2021 and two doses to be received by 30 November 2021 (Vaccination Requirement). 6. The Direction set out the basis and reasons for making the direction, as well as the circumstances in which a NSWPF member may be exempted from complying with the Direction through an individualised exemption process. 7. On 25 September 2021, the then Deputy Commissioner of Police issued a reminder to all members of all NSWPF regarding the Direction and the Vaccination Requirement. 8. On 27 September 2021, the applicant sought a temporary exemption from the Vaccination Requirement, based on concerns about the safety and efficacy of the available vaccines. The respondent declined the exemption request on 28 September 2021. 9. On 5 October 2021, the applicant again sought an exemption from the Vaccination Requirement. The respondent declined this further request for an exemption. 10. On 14 April 2022, the applicant was served with a notice under s 181D(3)(a) of the Act (Notice). The Notice was accompanied by a bundle of material on which the Commissioner relied, in formulating the Notice. The Notice indicated that the Commissioner was considering the applicant's suitability to remain as a police officer. The Notice alleged that the applicant had: "(a) failed to receive one or both doses of the COVID-19 vaccine", and/or "(b) failed to provide evidence of her vaccination status". 1. On 12 May 2022, the applicant provided a written response to the notice (181D Response). In summary, the applicant denied engaging in misconduct, contended that the Direction was not lawful or reasonable and asserted that, in not getting vaccinated against COVID-19, she was in fact taking reasonable care for her own health and safety. 2. On 8 July 2022, the applicant was served with an order under s 181D(1) of the Act signed by the Commissioner and dated 19 April 2022. The order concluded that the Commission did not have confidence in the applicant's suitability to continue as a police officer and removed her from the NSWPF. The order was accompanied by the Commissioner's Statement of Reasons. 3. In summary, it is not in issue between the parties that, 1. The respondent directed the members of the NSWPF, including the applicant, to be vaccinated against COVID-19; 2. The applicant did not comply with the Direction; and 3. The applicant's failure to comply with the Direction was ultimately the cause of the respondent removing the applicant from the NSWPF. 1. What is in issue is whether the respondent's Direction was one with which the applicant was obliged or required to comply.