Industrial Relations Commission New South Wales Medium Neutral Citation: Botros v Commissioner of Police [2023] NSWIRComm 1074 Hearing dates: 10, 11 July 2023 Date of orders: 11 July 2023 Decision date: 11 July 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 Cases Cited: Denshire v Commissioner of Police, New South Wales Police Force [2023] NSWIRComm 1048 Roberts v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1039 Category: Principal judgment Parties: Hany Botros (Applicant) Commissioner of Police (Respondent) Representation: Counsel: Mr M Watts (Respondent) Solicitors: Kingston Reid (Respondent) File Number(s): 2022/00181325 Publication restriction: Nil EX TEMPORE decision 1. The Commission has before it an application pursuant to s 181E of the Police Act 1990, which is a request that the Commission review a removal by the Commissioner of Police (Commissioner) of the applicant for reasons which were set attached to her decision dated 14 June 2022 and served on the applicant on 15 June 2022. 2. This is one of a number of cases which have come before the Commission and I think as the respondent has conceded, they have been largely of officers of reasonably longstanding and officers of whom no criticism has been made of their performance as police officers other than in relation to one aspect. It is unfortunate that we have reached this position. It is one of a number of unfortunate consequences of the whole process we went through during the period where the State was subject to unusual requirements, including lockdowns, where people were not even allowed to leave their suburb. 3. In determining an application such as this, the Commission is given very clear guidelines pursuant to s 181F as to how the review is to be conducted. The starting point of the review are the Commissioner's reasons. 4. In this case, the Commissioner's reasons set out that police officers were required by 30 September 2021 to have received a first vaccination against COVID and by 30 November 2021 to have received a second vaccination. 5. There were two processes by which a police officer might be exempt from that requirement. The first of which was to obtain a medical contraindication certificate in a particular form. The applicant did not seek to obtain such a certificate. I observe that from other matters it is clear that such certificates were available in narrow circumstances. 6. The other circumstance in which a police officer could seek to be exempted from the direction of the Commissioner was through the Commissioner or her delegate's absolute discretion. That is the process by which the applicant in this case sought to be exempted from the requirement to be vaccinated. 7. There is a series of correspondence exchanged between the applicant and police command, not all of which is entirely clear. Some of that correspondence, as the respondent points out, seeks an exemption until further information could be provided. Ultimately it is my view that the exemption request from the applicant was finally and unequivocally denied by the relevant delegate of the Commissioner by a decision of 14 December 2021, which was conveyed to the applicant on 22 December 2021. 8. It is the applicant's position that, in short, there are two flaws with the removal decision. One, that the vaccination requirement was flawed in itself for various reasons, which I will return to, and there are two parts to that. And the second is that there had already been a finding against the applicant through an internal police process prior to the final determination of his exemption request. 9. Ultimately, I do not think that that determination is relevant to the decision here because the decision here needs to go through a process of considering the Commissioner's reasons, the case put by the applicant as to why the removal was harsh, unjust, or unreasonable and, if appropriate, the case put by the Commissioner in response. 10. The Commissioner's reasons set out, as the respondent has submitted, on their first page that there are many compelling reasons to make the COVID vaccinations a mandatory requirement for all members of the police force. As set out in the Commissioner's reasons they were: "• the NSW Police Force's response to the COVID-19 pandemic being critical to the functioning of NSW society, and that members regularly come into contact with individuals who have contracted COVID-19, and vulnerable/at risk individuals, including those who are medically unable to protect themselves through vaccination and require those around them to be vaccinated to increase their protection; • the NSW Police Force's frontline role in enforcing public health orders state-wide including at quarantine facilities; • the high risk, in any event, of infection regardless of the type and location of duties performed; • fatality and illness of NSW Police members and their families; • the real likelihood that case numbers will increase, particularly as the State reopens; and • providing the most effective protection against the effects of COVID-19." 1. Largely they are the reasons that had previously been advised to the police officers when the direction was issued. 2. The Commissioner's reasons set out the history in relation to the applicant, and note that the exemption request was considered by the Assistant Commissioner, who was in charge of such requests, and was declined. The Commissioner's reasons set out the response of the applicant to the show cause letter and, in substance, the response indicated matters which were put here, which I referred to earlier. 3. One of the challenges made to the vaccination requirement was that the applicant has correctly, it seems, pointed out that the Therapeutic Goods Administration assessment of the vaccinations notes that the testing which preceded approval in Australia did not assess the ability of the vaccines, or at least two of the three of the vaccines, to prevent asymptomatic transmission. The Commissioner effectively deals with that, from her perspective, by saying that that is contrary to other advice that was existent at the time. And that is so, as far as the Commission is concerned. 4. In any event, the Commissioner's reasons set out the consideration on pp 6 and 7: "The NSW Police Force is a hierarchical disciplined organisation, and you are required to comply with all lawful orders. You are a Senior Constable with 15 years of service and experience. I expect you to always act in accordance with your obligations under the Police Act 1990 and the NSW Police Force Code of Conduct and Ethics. In addition, the NSW Police Force's primary obligation under the WHS Act is to ensure the safety of its workers and other persons so far as is reasonably practicable. As you are aware, the NSW Police Force plays a vital role in the NSW Government's response to COVID-19. The risk of exposure to the virus by members of the NSW Police Force is high. It is a requirement of every member of the NSW Police Force to provide essential services in emergencies and to protect the public from injury or death. This includes the vulnerable and elderly, your colleagues, and their families. The NSW Police Force must always be operationally ready, and all members must be ready, willing, and able to perform their duties. An inability to perform every aspect of your duties has the potential to adversely impact the administration of justice. In the circumstances, I am satisfied that, by choosing not to comply with the requirement to be vaccinated against COVID-19, you have decided to place your own interests ahead of the collective interests of the NSW Police Force and the community. In your Response and your previous reports, you appear to question the safety of the currently available vaccinations for COVID-19. It is apparent, from information that is publicly available to all members of the community, that the Therapeutic Goods Administration (TGA) within the Commonwealth Department of Health undertakes a rigorous process for assessing all vaccinations before they are approved for use. This includes evaluating the effectiveness and safety of vaccinations before they are authorised to be used. The Australian Technical Advisory Group on Immunisation has regularly emphasised that the protective benefits of vaccination far outweigh the extremely rare risk of experiencing adverse side effects. In short. the lived experience of over 90% of residents within New South Wales is that the vaccination is safe, and despite being rolled out in Australia from as early as February 2021, over twelve months later, there is no credible evidence that there are significant widespread risks in regard to long-term side effects of the vaccine. Instead, the evidence suggests that the risk of experiencing any serious side effects associated with the vaccine is extremely small. In your Response and your previous reports, you impliedly question the efficacy of, and necessity for, vaccination. In short, I do not accept your attempts to cast doubt over the effectiveness of the COVID-19 vaccinations currently available in New South Wales. There is substantial evidence that is publicly available that establishes vaccination significantly reduces the risk of serious illness and death from COVID-19. While I acknowledge there are reports to the contrary, these are from sources that are either not credible, or that are otherwise outweighed by the vast majority of medical opinion, both in Australia and around the world. In your Response and your previous reports, you suggest that there was insufficient weight given to the risks related to COVID-19 vaccinations, in contravention of the WHS Act. The NSW Police Force has assessed the risk posed by the COVID-19 virus. Information about the risks associated with COVID-19, in addition to being publicly available, was regularly circulated to all members of the NSW Police Force. Information about vaccination was also regularly circulated, particularly in circumstances where the NSW government gave priority access to vaccines to all members of the NSW Police Force. The fact remains that COVID-19 presents a real risk to the health and safety of members of the NSW Police Force and their families. As Safe Work NSW has identified, vaccination is a higher order risk control measure that best addresses the risk. In those circumstances, the direction to be vaccinated was given to all members of the NSW Police Force in September 2021. In addition, the requirement for mandatory vaccination received public support from the Police Association of NSW. Furthermore, you had an opportunity to seek an exemption from the requirement to be vaccinated. You had an opportunity to present materials as to why the requirement was not reasonable in your circumstances, and you in fact availed yourself of that opportunity. In all the circumstances, the issues you raised do not address or excuse your conduct in the form of failing to comply with a lawful direction to be vaccinated. Amid one of the most significant health and economic emergencies the State of New South Wales has faced, you have deliberately chosen not to comply with the lawful directions issued by myself and former Commissioner Fuller, APM. The health and wellbeing of every person is a core priority, and it is an obligation you share. Indeed, in addition to your obligations under s 201 of the Police Act 1990 and cl 8 of the Police Regulation 2015, the WHS Act requires you to obey reasonable directions and to take steps to ensure your own safety and that of others, including your colleagues and members of the public. Capacity to meet and follow safety instructions is core to the competent performance of our duties. I have carefully reviewed all of the material associated with this matter and taken into account the character evidence and details of your career history within the NSW Police Force as supplied by you in your Response. However, your decision not to comply with the direction demonstrates that you lack the integrity to continue as a police officer, and by not being vaccinated against COVID-19 you no longer have the ability to perform your duties. I see no additional mitigation or reason for your actions that would provide me with any basis not to lose confidence in your suitability to remain a police officer. I expect and the law demands that New South Wales police officers will uphold their solemn Oath of Office at all times. Our Oath requires all New South Wales police officers to act professionally at all times, with ethics and integrity, and in accordance with the law. This is our sworn duty. I want you to clearly understand, and I cannot stress too strongly, that I expect an appropriate standard of behaviour from all police officers and I expect them to adhere to the expectations of ethical and professional conduct, whether it is on or off duty. You have clearly breached the New South Wales Police Force Code of Conduct and Ethics." [Emphasis in original] 1. In short, they recite that the NSW Police Force is a hierarchical disciplined organisation, that the NSW Police Force has an obligation to ensure the health and safety of the workers and other persons in the workplace, that the NSW Police Force provides essential services and may come across people who are particularly susceptible to COVID infection, who may not be able to be vaccinated themselves. 2. The Commissioner's reasons note that the Therapeutic Goods Administration has, as well as the Australian Technical Advisory Group on Immunisation, emphasised the positive benefits of vaccination, outweighing the extremely rare risk of people experiencing side effects and concludes that the requirement to be vaccinated was a reasonable step for the Commissioner to set for police officers in New South Wales. 3. Superintendent Driver, who gave evidence, set out the background to that, and I will return to that in a moment. In any event, the Commissioner has effectively set the requirement, and then come to the conclusion that in refusing to be vaccinated, the applicant has placed his interests over that of the NSW Police Force. In such a case she has determined that she has lost faith in his ability to remain a police officer. On their face, those reasons are a rational basis on which a Commissioner of Police may lose confidence in a police officer to remain part of an organisation such as the NSW Police Force. 4. The case put by the applicant against that was that the original decision to make a finding that he had failed to comply with the direction prior to what I have determined was the date on which his exemption request was determined, fatally poisoned the decision-making process. Secondly, that a requirement that he be vaccinated would cause him to cause a medical practitioner to breach a law in relation to informed consent. What was never really fully explained by the applicant was why he did not wish to be vaccinated. 5. What was put by the applicant raised issues with one basis on which the Commissioner's direction was made and indeed, in that respect, only part of that reason. And that was a challenge to whether there was any evidence that asymptomatic transmission would occur. Nothing, in fact, put by the applicant either to the Commissioner or to this Commission went to whether symptomatic transmission would be prevented by vaccination. And it is clear that the Commissioner, as set out by Superintendent Driver, was receiving advice from a range of reputable sources both at New South Wales and Commonwealth Government level, which rationally set out that vaccination was something that could be done, it was practicable, and it was frankly lawful. Consequently, nothing submitted by the applicant in his case undermines the Commissioner's reasons. 6. This Commission has previously addressed the question of whether a direction to a police officer needs to be lawful and reasonable or merely lawful. Denshire v Commissioner of Police, New South Wales Police Force [2023] NSWIRComm 1048 and Roberts v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1039 have addressed this question. Police officers are not, as a matter of law, employees. The Commissioner only is required to issue lawful directions, and there is an obvious reason for that. For example, directing a police officer to attend a riot or a domestic violence situation is obviously putting them in a position of danger and the Commissioner needs to have the power to do that. 7. Unfortunately for the applicant, this Commission is not in a position to address the question of whether being able to take accrued sick leave instead of being on unpaid leave was something that was within the power of the Commissioner. That is something that would need to be dealt with outside this application. 8. I do not think it is as clear cut as the submission of the respondent that it would be available if a police officer was sick. Ultimately, it does not fall to be determined because there was no evidence before this Commission that there was any attempt by the applicant to seek sick leave or that there was any evidence in the form of a medical certificate that at any relevant period he was sick and would therefore have been entitled to sick leave. 9. As to the applicant's submission that he had spent his time working full time on this case, it is clear to the Commission that the applicant has put a great deal of time and effort into preparing his case. It was well presented, and his position was largely clear. There were some parts that unfortunately I was not able to follow completely, but I do not think they were central to what is in issue. 10. Unfortunately for the applicant, the law is clear and applicants here who seek the Commission's support for either compensation or for lost remuneration in the event of reinstatement, are required to have made efforts to mitigate their loss. Legally, Mr Watts, as counsel for the respondent is correct that the presumption is that it would not take full-time work for so many months to prepare an applicant's case. I appreciate that that is a difficult position for the applicant, and I appreciate that the applicant genuinely feels aggrieved that his career has been removed for something which has nothing to do with his performance as a police officer. 11. At the end of the day, having considered the applicant's case, I do not consider it is necessary to turn to the Commissioner's case in response. Nothing said by the applicant has reached the level which would discharge the onus on the applicant to overturn Commissioner's findings. 12. In terms of considering the interests of the applicant, ultimately, as the Commission has said in other matters, the decision to be vaccinated was a choice. It was a choice that the applicant did not want to have to make, but it was a choice that the Commissioner, put him in the position of having to make and left to the applicant to make. 13. Ultimately, as I said in another matter, the interests of the applicant are most fundamentally concerned with not being removed for a reason which is harsh, unjust, or unreasonable. And I do not believe that the applicant has been able to demonstrate that his removal is any of those. 14. The public interest in this matter, as is set out in the Police Act, fundamentally constituted by two matters, which are the maintenance of the integrity of the NSW Police Force, which is clearly capable of encompassing a number of matters, and the fact that the Commissioner has removed the applicant. 15. But in this case, it is a very simple question of compliance with the direction of the Commissioner. There is no question that the direction was lawful. It is a direction to be vaccinated. Vaccination is a lawful activity and nothing that was said by the applicant has challenged that. 16. The question of informed consent is a matter between a police officer seeking to be vaccinated and a medical professional who might administer that vaccine. In submissions, the applicant said that the Commissioner's direction, put in certain cases for certain police officers, the medical professional in a position where the direction would effectively force a medical professional to breach their own legal requirements. 17. I do not accept that that case has been made out. It is a matter for discussion between a police officer and their attending medical practitioner. The mere fact that a police officer or indeed any employee would prefer not to be vaccinated and indeed would tell their treating medical practitioner that they would prefer not to be vaccinated, would not of itself vitiate informed consent to the vaccination. 18. It might be that in some cases it does, but that would be a matter that would be for the medical practitioner to determine. And indeed, the answer to that, as far as the Commissioner is concerned is that the person would therefore not seek to be vaccinated, which is in fact what the applicant has chosen not to do. 19. The only other matter to deal with is the delay between the denial of the exemption request and the beginning of the process. An excessive length of time elapsed between the exemption request being declined and the Commissioner sending a show cause letter to the applicant. It is worse than not ideal, but I am unable to find that that was unreasonable in the sense required by s 181E. 20. I would encourage the Commissioner to shorten some of the processes and/or perhaps to put in processes which might monitor these better. I appreciate that the circumstances that we are dealing with in this case are unusual and that many people were in unchartered waters. That said, I understand that there were not more than a hundred people in the same position, so it should have been dealt with more expeditiously. Outcome 1. Those are my reasons, and unfortunately, Mr Botros, your application for review is dismissed. Orders 1. The application for review is dismissed. C Muir 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: 28 July 2023