Industrial Relations Commission New South Wales Medium Neutral Citation: Chrystal v Commissioner of Police, NSW Police Force (No 2) [2023] NSWIRComm 1108 Hearing dates: 26-27 June 2023 Date of orders: 26 October 2023 Decision date: 26 October 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: Application dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Police -Removal – Failure to comply with direction requiring vaccination against COVID-19 – Lawful Direction – Direction does not need to be reasonable – Whether direction complied with by not performing duties – Late raising of arguments by Applicant contrary to procedure set out in s 181F(1) – Whether direction contravened no extra claims clause in Police Award – Validity of delegation of discretion to grant exemption from requirement to be vaccinated – Reasonableness of denial of request for exemption – Conduct contrary to s 7 of Police Act 1990 (NSW), reg 8 of Police Regulation 2015 (NSW), s 28 of the Work Health and Safety Act 2011 (NSW) and NSW Police Force Code of Conduct and Ethics – Applicant went on recreation leave the day after deadline for first dose of vaccine and a week later, until date of removal, was certified as unfit to work – Applicant has not discharged onus – Application dismissed Legislation Cited: Industrial Relations Act 1996 (NSW) s 163, 357 and 359 Interpretation Act 1987 (NSW), ss 3 and 49 Police Act 1990 (NSW), ss 6, 7, 31, 181D, 181E,181F,181G and 201 Police Regulation 2015 (NSW), reg 8 Work Health and Safety Act 2011 (NSW), s 28 Cases Cited: Benic v State of New South Wales [2010] NSWSC 1039 Botros v Commissioner of Police [2023] NSWIRComm 1074 Bowes v Commissioner of Police, New South Wales Police Force [2023] NSWIRComm 1049 CFMMEU v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059; 310 IR 399 Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236; 299 IR 314 Denshire v Commissioner of Police, New South Wales Police Force [2023] NSWIRComm 1048 Fire Brigade Employees' Union of New South Wales v Commissioner of Fire and Rescue New South Wales (PAD Program) [2021] NSWIRComm 1041 Fire Brigade Employees' Union of New South Wales v Industrial Relations Secretary of NSW on behalf of Fire and Rescue NSW (Covid-19 Vaccination Dispute) [2023] NSWIRComm 1004; 322 IR 33 Ford v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1014 Kassam v Hazzard [2021] NSWCA 299; 106 NSWLR 520 Kassam v Hazzard [2021] NSWSC 1320; 393 ALR 664 Lamarre-Condon v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1021 Murdock v Virgin Australia Airlines Pty Ltd (No 2) [2023] FCA 569 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116 R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan [1938] HCA 44; 60 CLR 601 Roberts v Commissioner of Police, New South Wales Police Force [2023] NSWIRComm 1039 Sabri v Health Secretary in respect of South Western Sydney Local Health District [2023] NSWIRComm 1055 Southcombe v Commissioner of Police [2022] NSWIRComm 1112 Southcott v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1075 Starr v Commissioner of Police [2001] NSWIRComm 226 Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84; 222 FCR 152 Tredinnick v Commissioner of Police [2016] NSWIRComm 14 Welch v Commissioner of Police [2023] NSWIRComm 1002 White v Overland [2001] FCA 1333; 67 ALD 731 Work Health and Safety Act 2011 (NSW) Category: Principal judgment Parties: Deborah Lee Chrystal (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel: B Flaherty (Applicant) M Watts (Respondent) Solicitors: Ashley, Francina, Leonard & Associates (Applicant) Makinson d'Apice Lawyers (Respondent) File Number(s): 2022/0097008 Publication restriction: Nil DECISION 1. Ms Deborah Chrystal, the Applicant, is a former Senior Constable of Police who was removed from her office within the New South Wales Police Force (NSWPF) on 17 March 2022 by the Respondent, the Commissioner of Police, by an order served on her pursuant to s 181D of the Police Act 1990 (NSW) (Commissioner's Order), as a result of her failure to comply with a direction from the Respondent to get vaccinated against COVID-19. 2. The Applicant had commenced as a police officer with the NSWPF on 27 January 1992. As at the date of her removal, she had served with the NSWPF for almost 30 years. 3. The Applicant has applied for the Commissioner's Order to be reviewed pursuant to s 181E of the Police Act, on the basis that it was harsh, unreasonable and unjust. The Applicant seeks reinstatement and compensation equivalent to six months' salary. 4. As at the date of her removal from the NSWPF and as at the date of the hearing, the Applicant had not received any COVID-19 vaccine and had not produced a medical contraindication certificate. Despite this, the Applicant contends that she did not breach the direction given by the Respondent and, further or in the alternative, if she is found to have been in breach of the direction, the Commissioner's Order is unreasonable and overly harsh in the circumstances. 5. For the reasons developed below I do not accept the Applicant's contentions and I have determined to dismiss her application. Background 1. As is common knowledge, the COVID-19 pandemic took hold in Australia in early 2020. On 26 March 2020, the first Public Health Order (PHO) regarding self-isolation was made in New South Wales. 2. Evidence regarding the NSWPF's response to the COVID-19 pandemic was given by Superintendent David Driver, whose substantive role is within the Professional Standards Command, as Commander, Misconduct and Management Support Command. Prior to commencing that role, (initially on secondment commencing on 6 December 2021), he held the position of Commander, Workforce Safety Command, which included overseeing the management of COVID-19 risks within the NSWPF. Superintendent Driver's statement was admitted into evidence without objection; however, he was cross examined. Also admitted into evidence in support of the Respondent's case was a large bundle of documents, including those relied upon by the Respondent when she determined to make the Commissioner's Order. 3. According to Superintendent Driver, from March 2020 onwards and throughout the pandemic, thousands of police officers were deployed to enforce PHOs relating to quarantine, isolation and social distancing. Superintendent Driver and his team were in regular contact with various groups within NSW Health, in additional to daily engagement with NSW Health liaison officers working within the Police Operations Centre. 4. In or around February 2021, the NSWPF were given priority access to the State-run COVID-19 vaccination program. From that time through until mid-2021, vaccination within the NSWPF became mandatory for those NSWPF officers whose duties related to quarantining of returned travellers and/or persons infected with COVID-19 and their close contacts. Otherwise, vaccination was optional, but strongly encouraged, with all NSWPF members able to attend vaccination appointments during work hours. 5. According to the evidence of Superintendent Driver, and I accept, members of the NSWPF had and have a high exposure to COVID-19 by the very nature of their role. Police officers provide frontline emergency services, assisting and interacting with members of the community including vulnerable persons. Operational police officers in turn work alongside or interact with other officers and administrative employees who attend work in police stations, Command headquarters, or other NSWPF premises. 6. NSWPF considered COVID-19 to pose a high workplace safety risk to all NSWPF members and, as Superintendent Driver explained, and again I accept, under work health and safety laws NSWPF was obliged to minimise, so far as reasonably practicable, the risk COVID-19 poses both to workers and to members of the NSW community with whom members of the NSWPF interacted on a daily basis. To this end, from February 2021 to September 2021 the Respondent sent regular written communications through various communication channels, including the internal 'NEMISIS system' which sends messages to everyone in the NSWPF, including information and fact sheets regarding the vaccines, strongly encouraging members of the NSWPF to become vaccinated against COVID -19 and informing them of arrangements to help them receive vaccinations. 7. NSWPF also created a COVID-19 work, health and safety page on the NSWPF intranet, which continued to be active as at the date of the hearing and could be accessed by all staff. It included access to FAQs, fact sheets, and resources and information outlining the control measures utilised to help minimise the risk associated with COVID-19. Between 2020 and 2022 NSWPF sent out hundreds of communications to all staff in relation to the pandemic and the control measures implemented by NSWPF. 8. The evidence shows that from June - August 2021, two inter-related events occurred which were the catalyst for the Respondent to mandate vaccination for all NSWPF members (with limited exceptions). First, the highly transmissible Delta variant of SARS-CoV-2 was detected in the NSW community. As a result, the NSW Government introduced the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (Delta PHO) which, in brief, meant that from 6 September 2021 only 'authorised workers' (which included members of the NSWPF) could leave an 'area of concern', but only if they had received at least one dose of a COVID-19 vaccine or been issued with a medical contraindication certificate. 9. The 'areas of concern' included some eleven local government areas within the Sydney Metropolitan area and consequentially the Delta PHO had a significant impact on NSWPF's operational capabilities, as there were a number of police officers who did not meet the requirements of the Delta PHO. According to Superintendent Driver this "placed the remaining staff of the organisation under greater strain and pressure." 10. In terms of the risk posed by the Delta outbreak, Superintendent Driver gave evidence that in August 2021, following 20 months without an on-duty COVID­-19 case of transmission, the NSWPF had two cases of workplace transmission reported in Dubbo. NSWPF went from having no notifiable incidents for approximately 20 months, to at least 15 notifiable incidents between 19 August 2021 and 7 September 2021. 11. Throughout this period NSWPF continued to monitor and distribute to all members of the NSWPF advice from the Australian Technical Advisory Group on Immunisation (ATAGI). ATAGI advices dating from 17 June 2021 to 19 August 2021 were tendered in evidence. The advices include information to the effect that, inter alia: 1. COVID-19 vaccination is very effective in preventing severe disease and death in adults of all ages; 2. the benefits of vaccination with COVID-19 Vaccine AstraZeneca strongly outweigh the risks of adverse effects in those ≥ 60 years and that vaccination is essential for this group in the context of an outbreak; 3. in the context of a COVID-19 outbreak where the supply of Comirnaty (Pfizer) is constrained, adults younger than 60 years old who do not have immediate access to Comirnaty (Pfizer) should re-assess the benefits to them and their contacts from being vaccinated with an alternate vaccine, versus the rare risk of a serious side effect; 4. the benefits to the individual of being vaccinated include avoiding severe COVID-19 outcomes, such as hospitalisation, intensive care unit admission and death, as well as chronic post-COVID-19 conditions ('long COVID'); 5. other benefits of vaccination include reducing the risk of passing the virus to close contacts including family, friends and work colleagues, and the potential to help reduce community spread of the virus; 6. when the virus is spreading in the community it is critical that as many people as possible are vaccinated as quickly as possible; 7. the increased transmissibility of the Delta variant of SARS-CoV-2 makes control of outbreaks using public health measures more difficult and increases the risk of seeding additional COVID-19 outbreaks; 8. there was some evidence to suggest that infection with the Delta variant may be associated with more severe disease, as indicated by hospitalisations, particularly in younger people; 9. evidence suggests that a first dose of a COVID-19 vaccine reduces symptomatic infection and transmissibility, with the protective effect starting 2- 3 weeks after vaccination; 10. for both vaccines then available (AstraZeneca Zeneca and Pfizer) completion of two doses is required to attain optimal and durable protection from COVID-19 and its complications; and 11. review of data on the efficacy, effectiveness and safety of additional doses of vaccines was currently being undertaken and ATAGI anticipated that additional vaccine doses may be recommended in the future. 1. In the context of the Delta outbreak and the Delta PHO (which was due to take effect on 6 September 2021), on 5 September 2021, Superintendent Driver and members of the Workforce Safety Command, together with the then NSWPF Chief Medical Officer, Dr William Kirby, conducted two risk assessments: "Exposure to COVID-19" and "Mandatory Vaccination of workers within the NSWPF" (Vaccination Risk Assessment). The evidence of Superintendent Driver was that by 5 September 2021 COVID-19 vaccinations represented a higher order risk engineering control measure and could be used to minimise the risks associated with COVID-19, beyond any other reasonably practicable measure, such as face masks, physical distancing, personal hygiene and temperature testing. 2. Accordingly, on 7 September 2021, the Respondent, who at that time was Michael J Fuller, issued a written direction to all members of NSWPF regarding COVID-19 vaccination (Direction). The Direction was in the following terms: 1. From the date of this document, applicable to all members of NSWPF (officers and administrative employees), I direct that a member of NSWPF cannot perform any duties unless: a. if the duties are performed on or after 30 September 2021 the member has received at least one dose of COVID-19 vaccine; and b. if the duties are performed on or after 30 November 2021 the member has received at least 2 doses of a COVID-19 vaccine. 2. If required by a member's manager, supervisor or Commander, a member must provide vaccination evidence. 3. The directions in 1 and 2 above do not apply to a member of NSWPF: a. who is unable, due to a medical contraindication, to receive a COVID-19 vaccine and presents a medical contraindication certificate in the form approved by NSW Health (accessible via Service NSW) to their manager, supervisor or Commander; or b. as I determine appropriate in my absolute discretion, or the absolute discretion of a member of NSWPF I delegate to make such a determination, subject to consideration of their specific circumstances at the time of determination. To ensure, so far as reasonably practicable, the safety of members of NSWPF an individual asserting an inability to comply with direction 1 for a medical reason may be directed to attend the Police Medical Officer or independent medical practitioner for further clarification or assessment of their medical contraindication/condition. Failure of a NSWPF member to comply with this direction will ultimately result in management action. Given the effort of all members of NSWPF to date during the pandemic I trust this will not be necessary and members come together to protect themselves, their colleagues and members of the NSW community. 1. According to Superintendent Driver, the implementation of the Direction was as a result of the Vaccination Risk Assessment and "the urgent increase to the safety risk identified". He explained that having regard to that urgent safety risk, to both NSWPF and the wider community, NSWPF decided to "implement an expedited consultation process", acknowledging that Part 5 of the WHS Act requires, so far as is reasonably practicable, consultation between management and workers on WHS issues. A copy of NSWPF's consultation procedures were tendered in evidence. In summary, as Superintendent Driver explained, consultation for WHS purposes primarily occurs in four different ways within the NSWPF: 1. direct discussions between individuals during the performance of any task; 2. through discussions between NSWPF representatives and duly elected and trained Health and Safety Representatives (HSRs); 3. through WHS Committees established in accordance with the WHS Act; or 4. "other agreed arrangements" (for example, a management driven WHS Committee where there is little interest by workers to volunteer for committee or HSR positions). 1. Superintendent Driver explained that an "expedited consultation process" was implemented with respect to the Direction in light of the fact that: "a) the NSWPF has in excess of 200 HSRs spread across NSW; b) after 20 months without workplace transmission, successive positive cases occurred in the workplace which were no longer being managed by lower level risk control measures; c) significant volumes of correspondence had already been made available to all members of the NSWPF with an opportunity to engage with the same (in addition to information circulating in the broader community, for example, through NSW Health daily briefings by Dr Kerry Chant and/or other NSW Health employees); d) an individualised consultation process would be advanced through the exemption application process and considered by an exemption committee chaired by AC Wood; and e) at the start of the pandemic in or around March 2020, the NSWPF set up a help-desk system through a centralised COVID-19 email for receipt of direct feedback from staff in respect of COVID-19 and the safety measures being undertaken. This was partnered with the frequent messages sent out to all NSWPF staff regarding the steps being taken by the NSWPF to manage the COVID-19 safety risk." 1. On the same day Assistant Commissioner Karen Webb (as she then was) published a video message to all members of the NSWPF. The Applicant annexed a transcript of the video to her first statement, and she agreed in cross examination that she had watched the video. The transcript records the Assistant Commissioner stating: "Given the current circumstances all New South Wales Police Force members will be required to be vaccinated for Covid-19. The requirement will be managed in a staged approach with the following rules. All NSW Police Force employees must have received at least one dose of the vaccine by 30 September and at least two does of Covid-19 vaccination by 30 November 2021. Evidence of vaccination will need to be provided and recorded on the NSW Police Force systems for the purpose of deployment, welfare and safety management. … And for everyone with a specific reason not be vaccinated, I can assure you that exemptions are in place for medical contraindications and other valid reasons. More information for employees, managers and commanders is available on the HR section of the intranet which contains up to date FAQs and fact sheets. Where required, further advice is available from Workforce Safety Command or Industrial Relations. …" 1. As at 7 September 2021, approximately 79% of NSWPF members had received their first dose of a COVID-19 vaccine and over 70% of the NSWPF workforce had already been fully vaccinated against COVID-19. 2. On 8 September 2021, Deputy Commissioner Webb, received a letter from the Police Association of NSW (PANSW) which asked a series of questions regarding the Direction. Notably the letter included the following: "As you are aware the Police Association of NSW (PANSW) Executive supported a general requirement that all police employees be vaccinated (provided there were appropriate exemptions to accommodate medical or other individual circumstances), in the interests of protecting the health and safety of our members. … The Work Health and Safety Consultative Committee was never consulted about any mandatory requirement for police to be vaccinated, and no risk assessment on the deployment of a mandatory vaccination requirement has been shared with that Committee or the PANSW generally. Please urgently provide a copy of: (a) Any risk assessment considered in the Commissioner's decision to implement mandatory vaccination for all police officers; and (b) Any report or other information considered by the Commissioner, explaining the efficacy of vaccination in reducing transmission within the workplace. 1. On 10 September 2021, Deputy Commissioner Webb provided a detailed response to the PANSW. Both the Applicant and the Respondent tendered this letter in evidence. Relevantly for present purposes the letter included the following: "6. How is the Direction to be applied to officers who are currently on approved forms of leave (unrelated to the vaccination issue) such as maternity leave, absent from work on worker (sic) compensation, long service leave, leave without pay, on secondment working outside the NSWPF, and who are not required in the workplace until sometime after 30 September 2021? Is it sufficient for them to have the vaccination and supply relevant evidence prior to their anticipated return date rather than 30 September? Will it be communicated to those officers that the direction deadline of 30 September 2021 will not apply? All officers on approved forms of leave are captured by the Commissioner's direction, noting vaccination has been readily available to officers since March 2021. The only exemption to this will be officers who are medically certified as not to return to NSWPF in any capacity. This is being reviewed by Workforce Safety and these will be considered collectively. All other officers out of the workplace will be contacted by their Command notifying them of the Commissioner's direction. In circumstances where the officer seeks to defer vaccination until their return to the workplace, they may apply through chain of command to the ACHR for consideration of their individual circumstances. In cases where the officer has confirmed they agree to be vaccinated prior to their return, the officer must present a vaccination certificate on their return [to] the workplace. … 9. The concluding paragraph of the information surrounding the Direction on the intranet states "Failure of a NSWPF member to comply with this direction will ultimately result in management action". What does "management action" mean in this context? For a small minority who (sic) of officers who do not comply with the direction, the NSWPF will undertake the normal Command based discussions with the officer as to the reasons they cannot comply, with the welfare support where relevant. These will then be considered on a case by case basis, as there are a number of acceptable reasons as to why the officer may not be able to comply with the deadline, such as the example where the officer has had COVID and is precluded from vaccination in the short term. In other cases, managerial action may entail management of the health safety risk in the workplace, to manage a safety risk to that officer, their colleagues and the public. As in all cases, management action, in the terms of reviewable action will only considered where misconduct is found including disobeying of a reasonable direction without a lawful reason. Any management action will, of course, be conducted reasonably. 10. What process does the NSWPF intend to follow for those officers who indicate they simply refuse to obtain a vaccination (prior to 30 September 2021 or at any time)? To manage the safety risks, the individual will be required to absent themselves from the workplace utilising their own accrued recreation/extended leave while their circumstances are considered. It is not possible to provide a standard process in this regard as the NSW Police Force is attempting to take into account the individual circumstances of each matter. However, any management action will be conducted reasonably and the NSWPF anticipates will be unnecessary given the overarching desire of all parties to ensure the safety of themselves and their colleagues most cases will not progress to this stage. 11. Will the Commissioner seek to terminate officers pursuant to Section 181 D of the Police Act 1990 who are not vaccinated by the 30 September? Termination under s 181D Police Act 1990 (NSW) will only be considered in circumstances where individuals who disobey directions, absent valid medical/religious reason or other approved exempt reason, to be vaccinated. For those that cannot be vaccinated due to medical/religious reason or other approved exempt reason, should reasonable adjustments not be appropriate for the individual circumstances then removal under ss 181D or 94B may be a possible outcome, however we emphasise our commitment where reasonably practicable to resolve these matters without recourse to formal procedures. Importantly, the NSWPF has not automatically mandated removal as the intention is to work with individuals wherever reasonably practicable to consider their individual circumstances prior to consideration for removal. However, the NSWPF is clear that vaccinations are required and unfortunately, regardless of steps taken, removal may be a possibility. 12. Will NSWPF suspend all officers who disobey the direction? The intention is while the circumstances of an individual who is unable to comply with the direction are considered they will utilise their own recreation/extended leave. We anticipate that most individual cases will be resolved through the Command. Suspension is an option considered on a case by case basis in accordance with the applicable policy however only becomes relevant where there is a breach of a direction. Regarding the WH&S committee, I understand the most recent meeting proceeded with those able to attend on the day. The NSWPF is available to hold an extraordinary WH&S Committee meeting to discuss the risk assessment process and considerations with the PANSW. Please contact the WH&S Committee chair, Superintendent David Driver to arrange this meeting." 1. On 25 September 2021 Deputy Commissioner Webb sent out a reminder message (which was dated 24 September 2021) to employees regarding the need to comply with the Direction and which included the following information: "If you decline to comply with the Commissioners (sic) Direction you will: (a) not be permitted to perform duties; (b) be required to take a form of your leave, the type being determined by your Commander/Manager; and (c) be subject to disciplinary action." 1. On 28 September 2021, an extraordinary meeting was held via Microsoft Teams, of the Workplace Health and Safety Consultative Committee (Committee) involving the PANSW and the Public Service Association (PSA), being the unions with industrial coverage of NSWPF members, the PANSW being the union entitled to represent the Applicant. During the meeting the Vaccination Risk Assessment was presented electronically to those in attendance by Dr Brett Carroll from the Workforce Safety Command. 2. On 15 October 2021, Assistant Commissioner Wood wrote to the PANSW and PSA respectively, inviting them to attend the Sydney Police Centre on 28 October 2021 for a further Committee meeting, where the hard copy risk assessments would be provided. The Committee duly met on 28 October 2021, although representatives of the PSA did not attend, and a copy of the Vaccination Risk Assessment was provided to the PANSW. The Applicant's Response to the Direction 1. It is not in dispute that the Applicant received notice of the Direction on or about the day that it was made and that at that time the Applicant was working full time, albeit from home due to the pandemic, as an Education and Development Officer. Her usual place of work was Police Headquarters in Parramatta. At various times during 2021 she had been tasked with enforcing PHOs, including at Blacktown and Penrith. 2. On 20 September 2021, the Applicant made an application to be exempted from the Direction, by being permitted to continue to work from home. In summary, the Applicant advanced several contentions that that were said to support her request for exemption, namely: 1. she had been working from home efficiently for several months, and should be permitted to continue doing so; 2. even if she were required to return to the workplace, the risk of infection was low in her office environment and she would agree to subject herself to regular rapid antigen testing; 3. while she had given "thoughtful and serious consideration" to being vaccinated prior to the Direction, including speaking to two family doctors, she could not "give informed consent after receiving information relating to the taking of these vaccines"; 4. she was experiencing "a great deal of undue pressure and coercion to receive one of the current vaccines" as she risked "managerial action" if she did not receive a vaccine; and 5. she had made enquiries about the Novavax vaccine, and that she would "strongly consider this type of traditional vaccine as opposed to the MRNA Pfizer, AstraZeneca and Moderna vaccines that have no long-term safety data available." 1. Notably the Applicant did not expressly ask for a deferral of the requirement to be vaccinated for a stipulated period. Her request for exemption also included the following statements, that appear to make plain that she understood the Direction was a requirement for her to be vaccinated and that she was aware that she could not comply with the Direction simply by not reporting for duty, without first obtaining an exemption: " … COMMENT: The NSW Police Commissioner has decided to mandate the COVID-19 vaccination to all NSWPF employees despite the NSW and Australian governments electing not to have COVID-19 vaccines mandated. … I am experiencing a great deal of undue pressure and coercion to receive one of the current vaccines as I risk managerial action from the Commissioner of Police if I do not accept. … RECOMMENDATION: I am seeking reliance on your absolute discretion to allow me to continue to perform my duties as a NSWPF employee currently working from home without the need for the COVID-19 vaccination at this time. I understand that when required to return to the workplace that the direction to be vaccinated is still observed. Until such time I am able to consider other developing vaccines, I will be prepared to subject myself to regular rapid antigen testing. If required I would also be prepared to sign a document indicating this." 1. In cross examination the Applicant maintained that the remark under the heading 'Comment' was: "parroted … from a piece of paper that was handed to me to answer to this information. … That is written from the information provided to me in order to format my response to the report." [1] 1. While I accept that the Applicant may have followed some kind of template to ask for an exemption, she was at liberty to put in the document anything she wished. It is odd that she would 'parrot' information that she considered to be wrong. Nevertheless, I accept that it is possible that as at 20 September 2021, the Applicant genuinely thought that taking leave was an option available to her, in order to comply with the Direction, and that the reason she needed an exemption was so she did not have to use her leave. This is supported by the following part of her exemption request: "I respectfully request explanation as to precisely what managerial action will result as is referred to: 'a NSWPF member to comply with this direction will ultimately result in management action'. I do not wish to elect any type of available leave from the 30th September, as I have taken the required two (2) weeks leave for 2021 in accordance with the award." 1. On 27 September 2021, Assistant Commissioner Gavin Wood declined the Applicant's request to be exempted from the Direction. As the Assistant Commissioner's authority to decline the exemption request became an issue in the proceeding, I should set out exactly what the Respondent's evidence showed in respect of the declination. 2. Included in the Respondent's Tender Bundle was the Applicant's request for an exemption dated 20 September 2021. At the end of the document are the following notations: 1. Manager, CorporateBusiness Service Centre I note Senior Constable Chrystal's comments regarding the COVID-19 Vaccination Mandate direction. Senior Constable Chrystal has been encouraged by her Team Leader and HRM to access the vaccination. The benefits have been discussed with Senior Constable Chrystal regarding this as a risk mitigation measure in the workplace, for both the individual, their families and colleagues. Welfare support and assistance along with providing EAP and Police Chaplin details has taken place over the past months. Senior Constable Chrystal is currently working remotely and understands that she will need to avail herself to an approved leave option from 01/10/2021 until further notice, pending the outcome of this report. [Signed] Tina Jones 22 September 2023 2. Director Shared Services Noted, forwarded for determination by ACHR [Signed] 22/09/2021 3. HR Assistance Commissioner G. Wood I have determined that the request be declined. The Commissioner's direction is unambiguous, and I am of the view that the submission does not provide any extenuating circumstances that warrant deviation from this position. The officer's request for clarification of what management action may arise is referred to the Commander. This can be communicated locally by the Command consistent with published procedures. Command to liaise with officer and provide this advice. [Signed] Gavin Wood AMP Assistant Commissioner Human Resources 27/09/2021 1. The Applicant received notice that her exemption request had been denied on 30 September 2021. 2. On 30 September 2021 the Applicant's manager, Ms Tina Jones, wrote to the Applicant reminding her of the need to comply with the Direction. The letter stated, inter alia: "… You are receiving this letter as I have identified that you are yet to comply or provide evidence that you have complied with this direction. In summary the direction requires that a first dose must be had prior to 30 September 2021 to enable duties to be performed on and from this date, and similarly a second dose for 30 November 2021. … This means that prior to Thursday 30 September 2021 you must either: (1) Have had a (sic) least one COVID-19 vaccination AND provided evidence of your vaccination to your Command for upload into SAP (treated as health information); or (2) Provided a medical contraindication certificate in the form located at [website address] (please be aware this is the only form that will be accepted); OR (3) Provided details to your Commander of extenuating circumstances which you feel warrant consideration by the Assistant Commissioner, Human Resources, for an exemption under 3(b) of my (sic) 7 September 2021 Direction. If you do not comply with the Commissioners (sic) Direction you will: (a) not be permitted to perform duties: (b) be required to take a form of your leave – you may nominate annual, extended or leave without pay; and (c) be subject to disciplinary action. I am providing you with seven calendar days from the date of this letter 30 September 2021 to further consider the direction and comply with steps (1), (2) or (3) above, or provide evidence of compliance with the direction. If you do not provide a response or follow these steps, further consideration will be given to what further action may be appropriate. …" 1. The Applicant did not receive a first dose of the vaccine by 30 September 2021 and from 1 October 2021 to 6 October 2021 the Applicant took annual leave and did not report for duty. 2. In my view any understanding the Applicant had that compliance with the Direction might be achieved by taken leave ought to have been disabused by the terms of Ms Jones' letter of 30 September 2021. 3. On 6 October 2021 the Applicant obtained a medical certificate from Dr Marita Garcia certifying her as unfit for work from 6 October 20211 until 5 November 2021 due to an "anxiety disorder". 4. On 7 October 2021 the Applicant responded to Ms Jones' letter of 30 September 2021 in which she stated, inter alia: "… I acknowledge that I have received a reply for my application for an exemption under 3(b) of the Commissioner's direction on the 30th September 2021. … I am writing to inform you that I have engaged the services of Pryor, Tzannes and Wallis Solicitors who have initiated proceeding before the Industrial Relations Commission on my behalf. I have requested they test the lawfulness of the Commissioner's direction in relation to the vaccine mandate and lawfulness of terminating my employment if I fail to be vaccinated as directed. I believe I have a legal right to have the direction tested within the appropriate jurisdiction, and the right to due process under law. I'm requesting the NSW police acknowledge the filing of the claim before the Industrial Relations Commission and to defer any disciplinary action until the matter has been finalised before the Industrial Relations Commission. I will forward a copy of my claim in the coming days. I would like to note that I do not intend to disobey the Commissioner's direction if it found to be lawful and will remain open to the direction once it has been ruled lawful in the relevant jurisdiction. I would like to engage in further consultation with the New South Wales Police Force in relation to the vaccine mandate to work toward mediating a favourable outcome for both parties involved, as required by section 48 of the Work Health and Safety Act 2011. Therefore, I'm requesting a copy of any risk assessment relating to the COVID-19 vaccination for my duties attached to the Business Service Centre, Shared Services. …. I respectfully request that my lawful rights under the law be respected and allow me the opportunity to come to a lawful resolution relating the Commissioner's direction for COVID-19 vaccination." 1. In light of the arguments advanced by the Applicant in this proceeding, I pause at this juncture to note that the Applicant acknowledged in her letter of 7 October 2021 that as she had failed to be vaccinated she could be the subject of disciplinary action, which she asked to be deferred pending finalisation of proceedings before this Commission. No proceedings had been filed on behalf of the Applicant as at 7 October 2021 and, no application was made by the Applicant in her letter, for deferral of the application of the Direction or the disciplinary action, on the basis that she was unfit for work until 5 November 2021. 2. In cross examination the Applicant explained that the letter had been prepared by solicitors and she "put her signature to something that I was encouraged to because this is unprecedented." [2] While it may well be the case that the Applicant did not fully understand the effect the contents of this letter had and has, at the least she must have understood that she was facing disciplinary action because she had not been double vaccinated. It was within her power at that stage to change the trajectory she was on, by becoming vaccinated. 3. Lastly, I note at this juncture that on 24 November 2022, Commissioner Muir determined, in Southcombe v Commissioner of Police [2022] NSWIRComm 1112 that the Direction was lawful. Commissioner O'Sullivan came to the same conclusion in Welch v Commissioner of Police [2023] NSWIRComm 1002, delivered on 16 January 2023. Despite this, as at the date of the hearing in late June 2023, the Applicant remained unvaccinated and gave no indication in her evidence that she would comply with the Direction if reinstated, despite stating in her letter of 7 October 2021 that she did "not intend to disobey the Commissioner's direction if it [was] found to be lawful" and she would "remain open to the direction once it has been ruled lawful in the relevant jurisdiction." That said, I should also record that Superintendent Driver gave oral evidence that the Direction was lifted on 1 June 2023. 4. On 4 November 2021 the Applicant obtained a medical certificate from Dr Garcia certifying her as unfit for work from 4 November 2021 to 3 December 2021 due to an anxiety disorder. She also obtained a referral to a psychologist, Anna-Maria da Cruz, for "psychological assessment and management re: anxiety". 5. On 9 November 2021 the Applicant lodged an 'Incident Report' in respect of her psychological injury. The Incident Report recorded the date of the incident as being 6 October 2021, that the incident had occurred "At workplace" and the cause of the incident was "psychological factors." The report recorded the Applicant's current fitness as being: "No capacity for any type of work" and the cause of the incident as follows: "I have worked 30 years in the field. Last 12 years worked as Youth Liaison Officer – I have been suffering increasing stress after leaving role in June 2020 – I've seen a gp about stress, gp advised I am suffering from anxiety disorder. I currently have a referral to see physchologist (sic).Dr advised likely to become work cover matter." 1. Sometime thereafter the Applicant made a workers compensation claim for post-traumatic stress disorder and received workers compensation payments for the period from 6 October 2021 to 11 February 2022. Thereafter, she remained on sick leave until she was removed on 17 March 2022. 2. On 22 November 2021 the Applicant was served with a notice pursuant to s 181D(3)(a) of the Police Act. The notice indicated that the Respondent was considering removing the Applicant as a police officer due to her failure to comply with the Direction and attached the documents which the Respondent had and would consider in deciding whether the Applicant continued to enjoy the Respondent's confidence. Those documents included the Applicant's application for an exemption dated 20 September 2021 and the notations on that application, including that of Assistant Commissioner Gavin Wood declining her application; the Applicant's letter to Ms Jones of 7 October 2021 and the Applicant's "Individual Profile" generated from the NSWPF computer system. 3. On 20 January 2022 the Applicant's then solicitors provided a response to the s 181D(3)(a) Notice. In summary the Applicant, via her solicitors: 1. requested a copy of the risk assessment undertaken by the NSWPF on the risk associated with one of the available COVID- 19 vaccines; 2. described the Respondent as unreasonable for not agreeing to provide the Applicant with a six-month deferral from compliance with the Direction in circumstances where she was "currently unable to attend her workplace due to an employment-induced medical condition" [although a request in those terms had not been made]; 3. asserted that she had been accepted into a clinical trial of a new vaccine, which required her to not get inoculated with any approved COVID-19 vaccine; 4. asserted that she posed "no risk to NSW Police staff or their families since she is currently not working" and that she was "not refusing to obey the direction, but rather considers it more appropriate to comply with employment directions once she is fit to return to work"; 5. contended that the Direction did not apply to her as she was not performing duties; 6. asserted that the Respondent did not consult with employees regarding the Direction, thereby making the Direction unreasonable; 7. asserted that the vaccines were ineffective at preventing transmission of COVID-19 and deaths associated with the virus and that the appropriateness of enforcing the mandate on the Applicant was therefore questionable; and 8. submitted that in the circumstances: 1. the allegation that she had deliberately chosen not to comply with the Direction contrary to s 7 of the Police Act; s 28 of the Work Health and Safety Act 2011 (NSW) and points 1, 3, 5 and 6 of the NSW Police Force Code of Conduct and Ethics was denied; and 2. she was therefore not in breach of s 201 of the Police Act, or cl 8 of the Police Regulation 2015 (NSW). 1. I pause to note that the letter did not state that the Applicant would receive the vaccine when she was fit to return to work. I also note that the evidence established that the Applicant had not in fact, as at the date of the hearing, participated in a clinical trial of a new vaccine. 2. On 17 March 2022 the Applicant was served with the Commissioner's Order which had been issued on 11 March 2022. The Commissioner's Order stated that the Respondent did not have confidence in the Applicant's suitability to continue as a police officer and removed her from the NSWPF. 3. The Commissioner's Order was accompanied by a lengthy Statement of Reasons given by the Commissioner, which by then was Karen Webb APM. It is not necessary to recount all that was set out in that Statement, but the following parts are important in the context of this decision: "… On 20 September 2021, you sought an exemption from complying with the direction given that the state and federal government have not mandated vaccinations. You said that you can carry out your duties form home. You contended that there is no long-term safety data for the vaccines, and you indicated that you would consider the Novavax vaccine when available. Following consideration of your submission, you were advised on 30 September 2021 that you submissions was not accepted. At the same time, you were reminded of your obligation to abide by the direction. On 7 October 2021 you wrote to the Manager of Shared Services and indicated that you have engaged solicitors to test the lawfulness of the direction and any decision I may make to terminate your employment. You also state that you "do not intend to disobey the [former] Commissioner's direction if it is found to be lawful and will remain open to the direction once it has been ruled lawful in the relevant jurisdiction." … I am satisfied that there are reasonable grounds to conclude that you have deliberately chosen not to comply with the direction of former Commissioner Fuller, APM, dated 7 September 2021 and my direction issued on 25 September 2021. In particular, you have: ● failed to receive one or both dose(s) of a COVID-19 vaccine within the specified timeframe; and/or ● failed to provide evidence of your vaccination status. … In the circumstances, I find that your conduct was contrary to the Police Act 1990, the Police Regulation 2015, the WHS Act and the NSW Police Force Code of Conduct and Ethics. … Consideration As set out in the Notice, I am very concerned by your conduct as detailed above. I expect the highest standards of behaviour from sworn officers of the NSW Police Force and for all NSW Police Force officers to place integrity above all. 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 30 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 and 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 exemption request, you indicate that you 'will consider' the Novavax vaccine when available. You do not mention Novavax in your Response, although you attach a letter indicating that you have 'registered to take part in a planned clinical trial of a Covid-19 vaccine known as Covax-19 or Spikogen.' I accept that you have freedom to choose what vaccination, if any, you choose to inoculate yourself with. However, as a member of the NSW Police Force, you have had priority access to safe and effective vaccines since February 2021, when the Astra Zeneca and Pfizer vaccines became available. The Moderna vaccine then also became available in August 2021. You have chosen not to comply with the direction to be vaccinated with one of these available vaccines, and instead you have said that you 'will consider' Novavax and that you have 'registered for a trial of Spikogen'. That is your prerogative; however, the consequence of your decision is that I do not see how I can continue to have confidence in a police officer who chooses to disobey a direction. You will be aware that to be fully vaccinated you require two vaccinations with a specified period in between doses, depending on which vaccine you are receiving. It is not clear precisely when and how you 'will comply' with the direction, and therefore whether you will be able to return to duties, when you are declared fit. Failing to comply with a lawful direction amounts to serious misconduct, and to my mind, illustrates that you consider you can pick and choose which lawful orders you comply with and when to comply with them, and those that you do not comply with. The NSW Police Force cannot operate effectively with such officers. The NSW Police Force is a hierarchical disciplined organisation, and you are required to comply with all lawful orders. You have not provided evidence to suggest you cannot inoculate yourself with one of the safe vaccines that are available. Instead, for reasons that are unclear, you opted to participate in a clinical trial. As set out above, that is your prerogative. However, it does not explain of (sic) justify why you have chosen not to comply with the directions issued by myself and the former Commissioner. In circumstances where the NSW Police Force is responsible for providing essential emergency services to members of the public, and there are authorised strength restrictions on the number of persons that can be appointed to the NSW Police Force, I cannot accommodate you or any other member of the NSW Police Force not being able to perform any work for an indeterminate length of time, even once you are fit to return to work, until you get fully vaccinated. … 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 and, as stated above, there is no credible evidence that there are significant risks in regard to the long-term side effects of the vaccine. As SafeWork 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 201. 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. I note that, in your Response, you suggest that you could perform your duties from home as a risk mitigation strategy. However, operational duties must be performed in the field. Further, the operational effectiveness of the NSW Police Force relies on teamwork, collaboration, and visibility in the community, which can often only be achieved through in-person attendance at NSW Police Force premises, as well as in the field. It is not operationally viable for the NSW Police Force to provide alternative duties to every member of the organisation who chooses not to be vaccinated, to allow them to work form home. You are appointed to a position in the NSW Police Force and are assigned particular duties. While alternative duties can be provided on a temporary basis, for example, to an officer recovering from an injury, I will not be permanently modifying positions, nor providing alternative duties for some indeterminate period, to accommodate individuals who choose to disobey the direction to be vaccinated. If I were to do so, this would compromise the operational effectiveness of the NSW Police Force. In your Response, you say that the direction that you be vaccinated against COVID-19 is unreasonable because of the lack of consultation pursuant to the WHS Act. You suggest that, to be enforceable, the direction must be reasonable. You are not an employee of the NSW Police Force, but rather, you are appointed to the office of police officer on oath or affirmation. Your functions are those prescribed both in statute and the common law. They include, as set out in the Notice, the obligation to promptly comply with all lawful orders given by those in authority over you, pursuant to cl 8 of the Police Regulation 2015. This includes orders given by the Commissioner of Police. A failure to comply with a lawful order is a criminal offence under s 201 of the Police Act 1990. This reflects the disciplined and hierarchical nature of the NSW Police Force. It is clear from these statutory provisions, as well as the common law and the hierarchical structure of the organisation, there is no requirement for the direction to you to be reasonable. It only needs to be lawful. I am satisfied that the direction is lawful, that the WHS Act consultation requirements have been met, and that you have failed to comply with the direction promptly, or at all. Your failure to comply with a lawful direction strikes at the heart of your oath of office and obligations as a police officer. In the circumstances, I do not see you I can have confidence in your ongoing suitability to remain a police officer. … 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 additional 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 taken 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 details of your lengthy 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, including the fact that you are currently on sick leave. …" 1. The Commissioner concluded that the Applicant had deliberately chosen not to comply with the Direction and with her direction issued on 25 September 2021 and that the Applicant's conduct was in breach of ss 7 (a), 7(d) and 7(e) and 201 of the Police Act; cl 8 of the Police Regulation, s 28 of the Work Health and Safety Act; and points 1, 3, 5 and 6 of the NSW Police Force Code of Conduct and Ethics. 2. For reasons which I set out in Lamarre-Condon v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1021 at [86] – [93], I do not consider that the Applicant, even if she deliberately breached the Direction, acted contrary to ss 7(d) and 7(e) of the Police Act. However, as the Applicant is a police officer, unlike Ms Lamarre-Condon who was an administrative employee of the NSWPF, if she did breach the Direction (and the Direction was lawful) such conduct would contravene ss 7(a) and 201 of the Police Act; cl 8 of the Police Regulation and points 1, 3, 5 and point 6 of the Code of Conduct, (as pursuant to s 201 of the Police Act, refusing to obey any lawful order or carry out any lawful duty, is an offence); and s 28 of the Work Health and Safety Act. Those provisions provide: Police Act 1990 7 Statement of Values of Members of NSW Police Force Each member of the NSW Police Force is to act in a manner which-- (a) places integrity above all, (b) upholds the rule of law, (c) preserves the rights and freedoms of individuals, (d) seeks to improve the quality of life by community involvement in policing, (e) strives for citizen and police personal satisfaction, (f) capitalises on the wealth of human resources, (g) makes efficient and economical use of public resources, and (h) ensures that authority is exercised responsibly. 201 Neglect of duty etc A police officer who neglects or refuses to obey any lawful order or carry out any lawful duty as a police officer is guilty of an offence. Maximum penalty—20 penalty units. Police Regulation 2015 8 Performance of duties by police officers (1) Police officers are to comply strictly with the Act and this Regulation and promptly comply with all lawful orders from those in authority over them. (2) In particular, a police officer is required— (a) to serve wherever the officer is duly directed, and (b) to perform such police duty as may be duly directed, whether or not during the officer's rostered hours of duty. NSW Police Force Code of Conduct and Ethics An employee of the NSW Police Force must: 1. behave honestly and in a way that upholds the values and the good reputation of the NSW Police Force whether on or off duty 2. act with care and diligence when on duty 3. know and comply with all policies, procedures and guidelines that relate to their duties 4. treat everyone with respect, courtesy and fairness 5. comply with any lawful and reasonable direction given by someone in the NSW Police Force who has authority to give the direction 6. comply with the law whether on or off duty. 7. take reasonable steps to avoid conflicts of interest, report those that can not be avoided, and co-operate in their management 8. only access, use and/or disclose confidential information if required by their duties and allowed by NSW Police Force policy 9. not make improper use of their position or NSW Police Force information or resources 10. report misconduct of other NSW Police Force employees Failure to comply with the Code of Conduct and Ethics may result in management action. Work Health and Safety Act 2011 28 Duties of workers While at work, a worker must— (a) take reasonable care for his or her own health and safety, and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and (c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and (d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers. 1. In any event, the Applicant did not take issue with the Commissioner's characterisation of the alleged conduct or otherwise submit that the Applicant's conduct if proven, did not constitute serious misconduct capable of justifying dismissal. Rather the dispute centred around the reasonableness of the Direction, whether the Applicant had in fact failed to comply with the Direction, whether the Applicant's request for an exemption had been validly considered, whether the declination of an exemption was reasonable and whether the Commissioner's Order was unreasonable and/or harsh in the circumstances. 2. The Applicant filed an Unfair Dismissal Application with the Commission on 29 March 2022 seeking a review of the Commissioner's Order pursuant to s 181E of the Police Act on the ground that the removal was harsh, unreasonable or unjust. Principles applicable to a Review under s 181E of the Police Act 1. Section 181F of the Police Act applies in respect of a review under s 181E. Section 181F provides: 181F PROCEEDINGS ON A REVIEW (1) In conducting a review under this Division, the Commission must proceed as follows-- (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to-- (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)). 1. As I will shortly explain, the case presented by the Applicant changed throughout the proceeding, with a number of key contentions only being raised in closing submissions. This presented a difficulty for the Respondent who was not then in a position to lead evidence to counter the contentions made. 2. As s181F(2) makes clear, it is for the Applicant to establish that her removal was harsh, unreasonable or unjust. As s 181F(1)(b) and s 181F(1)(c) make clear, the Commission will first consider the Applicant's case and will then consider the Police Commissioner's response to that case. As was explained by Walton J, VP (as his Honour then was), in Starr v Commissioner of Police [2001] NSWIRComm 226 at [86]: "If the case presented by the applicant raises a basis for the Commission's intervention, it will be for the Commissioner, in answer to the applicant's case, to introduce evidence sufficient to demonstrate that the removal was warranted. This is not a matter that depends on onus. It is simply that once the applicant establishes a case then a burden may shift to the Commissioner to respond to relevant aspects of that case. In some matters, such as the present, this may include a burden to produce evidence vindicating the factual findings made, having regard to deficiencies in the process adopted by the Commissioner." 1. These remarks were quoted with approval by Bell P (as his Honour then was) (Macfarlan JA agreeing) in Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236; 299 IR 314 at [86]. 2. Commissioner Webster recently summarised the role of the Commission when conducting a s 181E review in Southcott v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1075 at [21]. After analysing what the Court of Appeal had said in Zisopoulos and what the Full Bench had said in Tredinnick v Commissioner of Police [2016] NSWIRComm 14 Commissioner Webster explained: Zisopoulos makes clear that the role of the Commission in these review proceedings is to analyse the case being presented by the applicant, identifying the factual contentions being advanced, and determine whether those matters are proven or not. It is the applicant who must prove his or her case, including the factual contentions in support of that case, consistent with what the Full Bench of the Commission held in Tredinnick. Whether or not an applicant succeeds in proving his or her case turns on the Commission's assessment of the evidence adduced by the parties, including inferences to be drawn from the failure of either party to call particular evidence. 1. In the present matter analysing the case presented by the Applicant was not straightforward. The Applicant's Case 1. The reasons stated in the Applicant's Unfair Dismissal Application, which was prepared by solicitors, as to why the Commissioner's Order was harsh, unreasonable or unjust, were broad and lacked specificity, namely: "4. The Applicant contends that the Order was unreasonable because it was based, in part, on inferences that should not reasonably have been drawn by the Respondent and that the Respondent made findings of fact against her that it was not reasonable to make. 5. The Applicant contends the Order was also unreasonable because the Respondent did not give any weight or gave insufficient weight to the contents of the Response [dated 20 January 2022]. 6. The Applicant contends the Order was harsh because the Respondent failed to give sufficient weight to both the mitigating factors and the nature and extent of the subjective factors she relied upon. The Applicant also contends the Order was harsh because of its consequences for her personal and economic situation. 7. The contentions set out above are not exhaustive and the Applicant gives notice that at the hearing of the Application she may raise other issues in support of her contention that the Order is harsh, unreasonable, or unjust. 8. The Applicant does not know the process followed by the Respondent which culminated in the service of the Order. Accordingly, the Applicant reserved the right to rely upon a ground/s she was denied procedural fairness and/or natural justice during the process and/or a ground/s the Respondent did not properly adhere to the requirements of s 181D of the Police Act 1990." 1. On 20 December 2022 the Applicant filed, in support of her application, a statement made by her on 19 December 2022, to which was attached numerous documents. The statement was prepared and filed at a time when the Applicant was unrepresented. Counsel for the Respondent did not oppose the admission of the statement and its attachments into evidence on the basis that I give 'appropriate weight' to material in those documents that comprised opinion or submissions. The statement, and a reply statement of the Applicant dated 28 April 2023, were admitted on that basis. I have accordingly given little or no weight to statements of opinion, where such opinions were intended to prove the existence of a fact. 2. The Applicant did not separately file submissions or a short summary of her case, at the time of filing her evidence, despite being directed to do so. Consequently, at the time the Respondent filed her material, including an Outline of Submissions, on 3 March 2022, she was answering the Applicant's case as it was presented in the Applicant's statement of 19 December 2022 and its attachments. Such case bore little resemblance to the case that had been foreshadowed in the Application. 3. The Applicant's case, as articulated in her statement of 19 December 2023, may be summarised as follows: 1. she did not fail to comply with the Direction, because it only required her to not perform duties beyond 30 September 2021 and she complied with that instruction; 2. the decision to reject her application for an exemption was unreasonable; 3. there was a lack of consultation in regard to the Direction; and 4. removal was harsh, particularly having regard to her lengthy career with the NSWPF, the financial impact of the removal and the availability of alternatives to removal, including "a well-earned and much needed career break, leave without pay or … optional disengagement" or allowing her to remain on sick leave. 1. On 28 April 2022 the Applicant filed material purportedly in response to the Respondent's filed material, namely a further Statement of the Applicant dated 28 April 2023 (to which I have already referred) and an "Outline of Opening". By this stage the Applicant had again engaged solicitors and the Outline of Opening was drafted by Ms Bridget Flaherty of counsel, who appeared for the Applicant at the hearing. 2. The Outline of Opening submitted that the Commissioner's Order was harsh, unreasonable or unjust because: 1. the Applicant had not breached the Direction because the Applicant "was not, at any time from the operative date of the Direction to the date of termination, attending work or in performance of duties"; 2. the construction of the Direction, as propounded by the Respondent, is one of mandatory COVID-19 vaccination, which is ultimately coercive and therefore unlawful; 3. the Direction was unreasonable in respect of the Applicant's circumstances, in that she was not performing duties; 4. the Commissioner's Order was harsh and unreasonable in light of the following matters: 1. at the time of the Commissioners' Order the Applicant was medically unfit to work, due her suffering post-traumatic stress disorder arising in connexion with her work history with the NSWPF and this condition was known to the Respondent; 2. the Applicant had a thirty-year career with the NSWPF and had a good reputation and work ethic, as evidenced by character references from former and current Department of Education staff; 3. at the time of the Commissioner's Order the Applicant had a significant amount of accrued leave and the Respondent's failure to consider alternatives to removal demonstrated a lack of due consideration, due process and reasonableness; 4. prior to the operation of the Direction the Applicant worked from home and had capacity to work from home and avoid contact with other officers and members of the public; 5. there was a failure to properly consult with the Applicant regarding her present circumstances; and 6. the Commissioner's Order has had a significant emotional and financial impact on the Applicant. 1. Save for the submission that the Direction was coercive and therefore unlawful, the balance of the submissions made in the Outline of Opening by and large reflected what the Applicant had submitted in her statement of 19 December 2022, save that no argument was made that the Direction was unreasonable due to a failure to consult prior to its implementation. 2. When Ms Flaherty opened the Applicant's case on the first day of the hearing, she essentially repeated the matters set out in the Outline of Opening, although no mention was made of the Direction being unlawful. It is important to set out Ms Flaherty's opening remarks in full: "Commissioner, just by way of brief background to this case, I understand that many cases have sort of come through the Commission in the last two years dealing with the COVID direction and terminations arising from alleged non‑compliance with that direction, and I just want to distinguish this case at the outset from those other cases. Essentially, the applicant's case is that there was no disobedience with the direction. The direction was complied with as the plain language of the direction requires a police officer to be vaccinated while performing police duties, and the applicant was, at all times beyond the dates stipulated in the direction, either in receipt of worker's compensation payments and/or on sick leave, which was approved by her supervisor and with all appropriate medical evidence provided. Essentially, we say that because there was compliance with the direction, her dismissal under the s 181D(1) order was invalid, and Commissioner, if you're against me on the issue of whether the direction was complied with, it's our submission that in any case, the decision was harsh and unreasonable in the way that compliance with the direction was enforced, and that was from every stage, including the level of consultation which was provided to the officers, the process in which any exemptions were considered and generally the reluctance of the respondent to consider appropriate alternatives to, you know, a very Draconian power of removal in circumstances where the applicant has an unblemished record of 30 years with the force prior to her dismissal in March last year." 1. During her cross examination of Superintendent Driver later in the day, Ms Flaherty raised squarely for the first time, albeit in response to an objection to a question she had asked, an argument that the Commissioner had not properly delegated authority to Assistant Commissioner Wood to consider and determine requests for exemption from compliance with the Direction, as per paragraph 3(b) of the Direction. [3] The argument, as it was subsequently developed, was that pursuant to s 31 of the Police Act, or in any event, the Commissioner had to delegate the authority to grant exemptions from compliance with the Direction referred to in paragraph 3(b) of the Direction, in writing. In the absence of proof of such a written delegation, so the Applicant submitted: "…the power wasn't lawfully delegated and therefore it wasn't properly considered. The applicant wasn't provided a proper opportunity to provide an exemption application to the direction and as such it can be considered that the decision to remove her was not in accordance with due process." 1. The Respondent objected to the Applicant being able to raise this argument at such a late stage, particularly in circumstances where further evidence could have been led by the Respondent with respect to the delegation arrangements, had it been made aware that such an argument was to be made. 2. Unfortunately, that was not the only argument raised on the heel of the hunt. After the Applicant's oral evidence had been completed, the Applicant's counsel tendered the Crown Employees (Police Officers – 2021) Award (being the Award applicable at the time the Applicant was removed) and the Crown Employees (Police Officers – 2017) Award (being the Award applicable at the time the Direction was issued), (both awards hereafter referred to as the 'Police Award') on the basis that the interpretation of the Direction contended for by the Respondent was not in accordance with the Police Award and the Police Award also set out the various leave entitlements which could have been made available to the Applicant, instead of removing her from the police force. In closing submissions counsel for the Applicant submitted, albeit relatively faintly, that if the Direction constituted "a mandatory vaccination directive" irrespective of whether the officer was capable of performing duties, this would constitute an 'extra claim' by the Respondent, being a demand made with respect to the employees, contrary to cl 2.1 of the Police Award. 3. Courts have long eschewed what is commonly called 'trial by ambush': see e.g. Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116; White v Overland [2001] FCA 1333; 67 ALD 731 at [4]. While the Commission is not a Court, proceedings are not conducted on pleadings, and pursuant to s 163 of the Industrial Relations Act 1996 (NSW), as modified by s 181G(1)(f) of the Police Act, is not bound to act in a formal manner, is not bound by the rules of evidence and may act without regard to technicalities or legal forms, it is required by s 163(1) (b) to inform itself on any matter in any way that it considers to be just, and is to act according to equity, good conscience and the substantial merits of the case. To permit a party to raise, at the tail end of a hearing, new arguments which cannot, in the circumstances, be properly addressed by the opposing party, would not just or equitable. It plainly gives rise to a situation which is procedurally unfair. 4. This is all the more so in the present matter where s 181F(1) of the Police Act contemplates a clear sequence of events in the conduct of a s 181E review: the Commission is to consider the Commissioner's reasons for the removal order; followed by consideration of the case presented by the applicant, followed by consideration of the case presented by the Commissioner in answer to the applicant's case. This being the case, the Applicant cannot be permitted, to raise a new argument in reply, at least without leave of the Commission which, if granted, would need to allow for the Commissioner to present, by way of further evidence and submissions, an answer to the new argument. 5. In the present matter Ms Flaherty argued that the Applicant had put the Respondent on notice that she intended to raise the lack of a written delegation by the fact that the Applicant had included in the Applicant's 'Court Book' containing her evidence, which had been served around a week before the hearing, a copy of the Summons for Production she had had issued to the Commissioner on 10 May 2023 and the documents produced by the Commissioner. Category 5 of the Summons sought: Copy of any delegations issued by former Commissioner of Police Michael Fuller in relation to his direction issued on 7 September 2021 titled 'Direction – Mandating of COVID 19 Vaccinations – Protecting the heath (sic) and safety of members of NSWP and the broader NSW community'. 1. It is not in dispute that no documents were produced in answer to Category 5. 2. Category 6 of the Summons had sought: Copy of the any (sic) Industrial Award that was applicable to former Senior Constable Deborah Chrystal's employment as that the date of her dismissal. 1. The Respondent had produced the Crown Employees (Police Officers – 2021) Award in answer to Category 6. 2. The Summons and the documents produced by the Commissioner were tendered by the Applicant without objection, albeit that at the time of the tender, the Applicant had not foreshadowed, or had inadequately foreshadowed, the arguments she proposed to make in respect of these documents. 3. I do not accept that the mere inclusion of the Summons and the documents produced in answer to the Summons in the Applicant's Court Book sufficiently put the Respondent on notice of the arguments the Applicant proposed to make. It may be accepted that the availability of the argument regarding the delegation only arose after the return of the Summons on 23 May 2023 when no written delegation instrument was produced, nevertheless that was almost a month before the hearing. It was incumbent on the Applicant at that time, if she wished to raise as part of her case, an argument that her request for an exemption had not been properly considered because Assistant Commissioner Wood did not hold a valid delegation to consider exemption requests, to immediately seek leave of the Commission to do so as so. At the very least, clear notice of the argument to be raised should have been given to the Respondent at the earliest opportunity to enable the Respondent to 'answer' that case, rather than, (to borrow the eloquent and much quoted phrase of Allsop J in White v Overland), 'quietly leaving footprints' in Court Books. The failure of the Applicant's counsel to even mention the argument in her oral opening, save for an oblique reference to "the process in which any exemptions were considered" makes the situation even more problematic. As for the argument that the Direction was in breach of the no extra claims clause of the Awards, there is no justification for the belated raising of this argument. 4. I ultimately determined to grant the Respondent leave to put on any material she wished to regarding the late raised arguments. The Respondent opted not to put on any further material and did not apply for an adjournment. In the circumstances, but not without misgivings, I have permitted the arguments to be put and I have considered the Respondent's submissions in response. For the reasons set out below, I have determined that the Applicant's arguments fail in any event. The Respondent's Case 1. I have already set out the nature of the evidence led by the Respondent. I outline the Respondent's case in answer to each aspect of the Applicant's case in my consideration of the Applicant's arguments set out in the following section. Consideration Did the Applicant breach the Direction? 1. As set out at [51] above, the grounds relied upon by the Respondent to issue the Commissioner's Order were that the Applicant had deliberately chosen not to comply with the Direction and with the then Deputy Commissioner's direction of 25 September 2021, which constituted conduct contrary to ss 7 (a), 7(d) and 7(e) and 201 of the Police Act; cl 8 of the Police Regulation; s 28 of the Work Health and Safety Act; and points 1, 3, 5 and 6 of the NSW Police Force Code of Conduct and Ethics. 2. I have already explained at [53], that I while I do not consider that deliberately failing to comply with the Direction would constitute a breach of ss 7(d) and 7(e) of the Police Act, if the Direction is lawful (which I discuss below) and if she did breach the Direction, such conduct would contravene ss 7(a) and 201 of the Police Act; cl 8 of the Police Regulation and points 1, 3, 5 and point 6 of the Code of Conduct and s 28 of the Work Health and Safety Act. As I have already observed, the Applicant made no argument that this would not be the case. 3. The Applicant submitted that a breach of the Direction required two elements: 1. the performance of police duties beyond 30 September 2022; and 2. being unvaccinated against COVID-19 from 30 September 2022. 1. The Applicant submitted that she was not, at any time from the operative date of the Direction, which she said was 7 October 2021 in her case (as she was given an extension until then to comply with the Direction), to the date of termination, attending work or in performance of duties. I accept that the evidence established that: 1. from 30 September 2022 to 6 October 2022, the Applicant was on annual recreation leave; 2. on 30 September 2022 the Applicant received the letter from Ms Jones giving her a further 7 days to comply with the Direction; 3. on 7 October 2021 to 17 March 2022 the Applicant was unfit for work. 1. The Respondent, in answer to the Applicant' case, submitted the 'operative date' of the Direction was 7 September 2021, not 30 September 2021, that compliance with the Direction could not be achieved simply by not performing duties and referred to the decision of Commissioner O'Sullivan in Welch. The applicant in that case had also submitted that he had complied with the Direction by not attending for duty. Commissioner O'Sullivan dismissed that argument, finding at [69]: "I do not accept the applicant's submission that the applicant had complied with the Direction. Firstly, the Direction was clear that a failure to receive a COVID-19 vaccination by a particular date may result in management action. Secondly, the video message from the respondent which was sent on the same day confirmed the requirement to receive a COVID-19 vaccination. Thirdly, the applicant's own evidence was that he understood this and that he deliberately refused to abide by the Direction." 1. The Respondent submitted that as a matter of comity I should follow the decision in Welch. I note that Welch was followed and applied by Commissioner Webster in Southcott. The Applicant in that matter had also gone on leave on 1 October 2021 because he had not been vaccinated and argued that thereafter the Direction did not apply to him as he was not performing duties. Commissioner Webster rejected that argument at [51]: "The applicant's argument seemed to be that because the Direction stated that "a member of the NSWPF cannot perform any duties unless", provided he was not in the workplace but on leave there was no requirement to comply with the mandate and become vaccinated. The applicant was on leave from 1 October 2021 for the express reason that he was not compliant with the mandate and was not vaccinated. In my view, this argument is disingenuous. It is clear in both directions on 7 and 25 September 2021 what was required of the applicant. The mandate required that he become vaccinated against COVID-19. In this regard, I refer to the matter of Welch v Commissioner of Police [2023] NSWIRComm 1002 at [65]-[70] where the same argument presented by the applicant was rejected. The circumstances in this matter are analogous to those in Welch and I can see no reason to depart from that reasoning." 1. The applicant in Lamarre-Condon had also argued that she had not contravened the Direction as she did not perform duties in contravention of the Direction. I dismissed that argument at [46] – 48] of my decision. As I explained at [46]: "… I accept that [the applicant] did not perform duties after the stipulated deadlines. I also accept that paragraph 1 of the Direction did not, in terms, require NSWPF employees to be vaccinated, but rather, directed that they not perform duties after the stipulated dates unless they had received the required number of doses of a COVID-19 vaccine. However, the penultimate paragraph of the Direction indicates that employees were required to receive a double dose of the vaccine as it refers to "an individual asserting an inability to comply with direction 1 for a medical reason". Plainly an unvaccinated individual would never have an 'inability to comply' with a requirement not to perform duties. They would simply not report to duty and thereby be compliant with the Direction. The phrase only makes sense if the Direction, taken as a whole, was a direction to be double vaccinated, absent a medical contraindication or an exemption. 1. That the Direction, taken as a whole, was a direction to be double vaccinated, absent a medical contraindication or an exemption, was also made clear in the video message sent by Deputy Commissioner Webb (as she then was) on 7 September 2021, the message sent by Deputy Commissioner Webb on 25 September 2021 and in the reminder letter sent by Ms Jones on 30 September 2023. Further, the latter two documents clearly stipulated that a failure to comply with the Direction would result in the member: 1. not being permitted to perform duties: 2. being required to take a form of your leave; and 3. being subject to disciplinary action. 1. In short, it is clear that not being permitted to perform duties and being required to take leave, were consequences of a failure to comply with the Direction - they did not constitute compliance with the Direction. 2. While I accept that the Applicant may have, wrongly, but sincerely, on or around 7 September 2021, regarded the Direction as being capable of being complied with by simply not performing duties, by 25 September 2021, at the latest, she ought to have been aware that her understanding of the Direction was wrong. I consider the maintenance of a view that simply not performing duties constituted compliance with the Direction after this date was disingenuous. Further, or alternatively, I consider, that the video message of Deputy Commissioner Webb of 7 September 2021, the reminder message of Deputy Commissioner Webb of 25 September 2021 and the letter from Ms Jones support an interpretation of the Direction as requiring vaccination regardless of the performance of duties and/or each stand alone as directions to the Applicant, from her superiors, to be double vaccinated. 3. In any event, as explained in at [41] and [42] above, the evidence established that the Applicant understood by 7 October 2021 at the latest, that the Direction required her to be vaccinated (absent a medical contraindication or exemption) and that disciplinary action would follow if she did not get vaccinated, regardless whether she was performing duties or not. 4. Counsel for the Applicant, rather curiously, submitted that the Applicant's "view as to how the direction operated … does not affect what the direction is as a matter of fact" [4] . While that is undoubtedly correct, the Applicant's honestly held belief as to the meaning of the Direction would have a bearing upon whether she had "deliberately chosen not to comply with the direction", as the Respondent found she had. As already stated, while the Applicant may have initially considered that taking accrued leave would constitute compliance with the Direction, the maintenance of that position after 25 September 2021 was untenable. 5. In the circumstances, I reject that Applicant's submission that she had complied with the Direction by not attending work or performing duties after 30 September 2021. 6. I do not consider that the fact that Applicant went on authorised annual leave on 1 October 2021 and thereafter was on workers compensation or sick leave, alters my view that she did not comply with the Direction. 7. In Lamarre-Condon I expressed doubt as to whether the applicant in that case was obliged to comply with the Direction in circumstances where she was on maternity leave when the Direction was given and was not due to return to work until 1 January 2022. I suggested at [64] of my decision that Deputy Commissioner's Webb's letter to the PANSW of 8 September 2021 in which she indicated that it was open for employees out of the workplace for reasons unrelated to the need to be vaccinated, to apply to defer vaccination until their return, was perhaps a recognition of the difficulty of directing employees to do something at a time when they were not required for duty. However, in that case I found that the applicant had nevertheless failed to comply with the Direction for two reasons. First, because the tone and content of her correspondence with the respondent after the Direction had been issued, and before the scheduled date for her return to work, was such that it was reasonable for the respondent to conclude that she was refusing to be vaccinated at any time. Notably she did not ask in that correspondence to be allowed to defer her vaccination until she returned to work, as countenanced by Deputy Commissioner's Webb's letter to PANSW dated 8 September 2023. Second, because the applicant continued to be non-compliant with the Direction at the point in time when she was expected to report for duty. 8. In the present matter the Applicant was at work and performing duties, albeit that she was working from her home, when the Direction was issued on 7 September 2021. I accept the Respondent's submission that the Direction was operative from that date. On 20 September 2021 the Applicant applied for an exemption from compliance with the Direction. She did not ask that she be permitted to defer her vaccination for a specified period of time. At best it could be inferred from the penultimate paragraph of her exemption request that she might be permitted to defer receiving a vaccination until such time as she was "able to consider other developing vaccines." Obviously enough that period of time was totally indeterminate. 9. The Applicant's request for an exemption was denied on 27 September 2021 and communicated to her on 30 September 2021. The Applicant was not excused from duty on 30 September 2021. Therefore, regardless of what happened thereafter, it is clear that the Applicant had breached the Direction on 30 September 2021, albeit that she was given a grace period until 7 October 2021. 10. The Applicant in her 'Outline of Opening' accepted "that at all relevant times she was subject to the Direction, even whilst off duty". However, she also submitted in her 'Outline of Opening' that whilst she "was not performing (and unable to perform) police duties, the Direction had no effect." I am unable to reconcile those two submissions. 11. As the Respondent submitted, the only reason the Applicant went on annual leave on 1 October 2021, as the evidence established, was because she had not been vaccinated. In other words, but for the Direction, the Applicant would have been at work. It is not the case, as counsel for the Applicant submitted, that she was "unable to perform duties at all times beyond 30 September 2021 until her termination". [5] Her leave from 1 October 2021 was not unrelated to the Direction. There is no evidence that the Applicant was unfit to work prior to 7 October 2021. Clearly the Applicant in fact regarded the Direction as having effect, such that she was obliged to take annual leave. 12. Further, the fact that the Applicant was given until 7 October 2023 in order to comply with the requirement to be vaccinated, before disciplinary action would be taken, but that she become unfit to work on 7 October 2021 does not absolve the Applicant in circumstances where: 1. there is no evidence that she took any steps to receive a vaccination during the period 30 September 2021 to 6 October 2021, nor any evidence to indicate that she was unable to receive a vaccination during this period; and 2. where she did not, on or after 7 October 2021 or at any time prior to 20 January 2022, request that she be permitted to defer receiving a vaccination until she was fit to return to work. On the contrary, her letter to the Respondent of 7 October 2023 requests only that any disciplinary action be deferred until her (non-existent) challenge to the legality of the Direction in the Industrial Relations Commission was finalised. 1. In the circumstances I do not accept the Applicant's argument that she had in fact complied with the Direction. Was the Direction lawful or unreasonable? 1. The Applicant in her 'Outline of Opening' had submitted that the Direction was 'ultimately coercive and unlawful' and referred to the decision of the Court of Appeal in Kassam v Hazzard [2021] NSWCA 299; 106 NSWLR 520 at [95]-[96]. No further submissions were made in support of this point in oral closing submissions. 2. The Respondent, in answer, submitted that Kassam confirmed that certain PHOs made during the pandemic did not coerce or otherwise interfere with the right to bodily integrity and that all decisions of this Commission which have considered the Direction, including, but not limited to, Welch, Southcombe, Bowes v Commissioner of Police, New South Wales Police Force [2023] NSWIRComm 1049 (Commissioner O'Sullivan) and Southcott have confirmed that it was lawful. 3. The paragraphs in Kassam referred to in the Applicant's 'Outline of Opening' are remarks of Bell P (as his Honour then was) in his judgment upholding the judgment of Beech-Jones CJ at CL (as his Honour then was), which, together with paragraph [97], read as follow: 95. The primary judge held that the common law recognised a right to bodily integrity, and so much may be accepted. Such a right is supported by Secretary, Department of Health and Community Services v JWB and SMB ("Marion's Case") (1992) 175 CLR 218; [1992] HCA 15 and, as was observed in the joint judgment in that case at 253, it is a right which "underscores the principles of assault" in both civil law (the tort of battery) and criminal law. As already noted, however, the primary judge held at [9] that this right was not infringed or impaired by any of the Impugned Orders. None of those Orders mandated vaccinations nor compelled citizens to be vaccinated, and none of the Plaintiffs in either set of proceedings had been vaccinated. 96. The Impugned Orders proceed on the basis that there will be citizens who choose not to be vaccinated. Under Order (No 2), if such a worker was an authorised worker, he or she was unable to leave his or her local government area unless vaccinated to the extent specified in cll 4.3 and 5.8. So, too, under the Aged Care Order and the Education Order, a relevantly qualified worker was not able to enter particular facilities or schools unless vaccinated to the level specified in each of those Orders. As explained above, this was (and could only be) a temporary measure as each of the Orders had a maximum 90-day life pursuant to s 7(5) of the Public Health Act. The Orders recognised that not all workers may choose to be vaccinated, and that choice was respected. Vaccination was not a requirement under the Orders; rather, it was an element of the conditions by reference to which a worker would be permitted to take advantage of an exemption, namely to leave a particular area (in the case of Order (No 2)) or to enter a particular place, under the Aged Care and Education Orders. 97. Nothing in any of those Orders required, still less coerced, aged care workers or educational professionals, authorised workers or workers in the construction industry, to be vaccinated. Indeed, as was observed in the course of argument, none of the Plaintiffs had in fact succumbed to any "coercion" by being vaccinated against their will. Nothing in the Orders forced them to do so and the Orders contained no sanction for exercising what each of the Plaintiffs in the Henry Proceedings described on oath as the exercise of their own free will in deciding not to be vaccinated. 1. It is the case that the Direction contained a sanction in the event that a member of the NSWPF decided not to be vaccinated, namely "management action". However, as I observed in Fire Brigade Employees' Union of New South Wales v Industrial Relations Secretary of NSW on behalf of Fire and Rescue NSW (Covid-19 Vaccination Dispute) [2023] NSWIRComm 1004; 322 IR 33 (FRNSW Covid-19 Vaccination Dispute) at [223] it has been found in numerous cases in various fora, dating from the beginning of the COVID-19 pandemic, that a direction requiring someone to be vaccinated, to prevent or reduce harm to himself (and to others), on pain of dismissal from their employment, is not a violation of bodily integrity, and the threat of losing one's job for failure to become vaccinated does not constitute coercion in the legal sense. 2. At [224] of that same decision I cited the remarks of Beech-Jones CJ at CL in Kassam v Hazzard [2021] NSWSC 1320; 393 ALR 664 at [63]: "People may choose to be vaccinated or undertake some other form of medical procedure in response to various forms of societal pressure including a law or a rule, an employment condition or to avoid familial or social resentment, even scorn. However, if they do so, that does not mean their consent is vitiated or make the doctor who performed the vaccination liable for assault. So far as this case is concerned, a consent to a vaccination is not vitiated and a person's right to bodily integrity is not violated just because a person agrees to be vaccinated to avoid a general prohibition on movement or to obtain entry onto a construction site. Clauses 4.3 and 5.8 of Order (No 2) do not violate any person's right to bodily integrity any more than a provision requiring a person undergo a medical examination before commencing employment does." 1. At [219] and [225] of my decision in FRNSW Covid-19 Vaccination Dispute I acknowledged that some employees may feel that they are being unfairly coerced to be vaccinated, but that the Full Bench of the Fair Work Commission in CFMMEU v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059; 310 IR 399 at [222] – [224] did not did not accept that a direction to be vaccinated amounted to coercion in the legal sense, although they accepted that it was a form of economic and social pressure and that the existence of that pressure was a relevant matter in assessing the reasonableness of the direction, although was not determinative of the question. 2. As Commissioner Webster found in Southcott at [34]: The Police Commissioner's Direction is lawful as it is within the scope of the statutory power conferred on her. The Direction did not transgress any positive law. That is to say, there is nothing 'illegal' or unlawful about persons becoming vaccinated to carry out, or continue, their work safely. 1. I agree. The Direction was lawful, as it has been found to be in every decision of this Commission which has considered its legality including Southcombe, Welch, Lamarre-Condon, Southcott, Ford v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1014 (commissioner O'Sullivan), Denshire v Commissioner of Police, New South Wales Police Force [2023] NSWIRComm 1048 (Commissioner Muir) and Botros v Commissioner of Police [2023] NSWIRComm 1074 (Commissioner Muir). 2. As noted above, the Full Bench of the Fair Work Commission did consider that economic and social pressure was a relevant matter in assessing reasonableness of a direction for employees to be vaccinated and as is well known, in that case the Full Bench determined that a failure by the employer to properly consult with the employees before implementing the vaccination requirement, rendered the directive unreasonable and therefore not one with which the employees were obliged to comply. (Although that was later remedied, and an enforceable vaccine mandate was introduced). 3. In the present matter however, the reasonableness of the Direction is irrelevant, as it has been determined in other matters before the Commission that the Direction need only be lawful, to the extent it applies to sworn or affirmed officers, with no additional requirement of reasonableness: see eg Denshire at [27]-[28]; Roberts v Commissioner of Police, New South Wales Police Force [2023] NSWIRComm 1039 at [51]; and Southcott at [28] and [40]. 4. The reason this is so was explained by Commissioner Webster in Southcott at [30] – [33] and [36] – [37], which I adopt: "30. The NSWPF is established by s 4 of the Act. Subsection 6(3)(b) of the Act provides that one of the services which is provided by the NSWPF is 'the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way.' The provision necessarily captures injury or death occasioned by way of the COVID-19 pandemic, and protection against the same sits squarely within the statutory mission and purpose of the NSWPF. 31. There is no doubt that the relationship between the Police Commissioner and members of the NSWPF is hierarchical in nature. Members of the NSWPF are not engaged as employees, but as independent office holders exercising original authority in the execution of their duties. A Police Officer is required to take an oath or affirmation of office pursuant to s 13 of the Act to keep and preserve the peace and to discharge their duties faithfully according to law. Police Officers do not have their appointment governed by a contract of employment and are not employees at common law. Their obligations and duties are found within the statutory scheme set out in the Act and the Police Regulation 2015 (NSW) (Police Regulation) as well as the common law. The powers and duties of a Police Officer arise both at common law and by way of statute, including the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), which is referenced at s 14 of the Act. 32. Section 8 of the Act provides the statutory basis for the Commissioner to manage and control the NSWPF. Subsections 8(3)-(4) provides: (3) The Commissioner may classify the various duties that members of the NSWPF are required to perform and allocate the duties to be carried out by each such member. (4) The Commissioner may issue (and from time to time amend or revoke) instructions to members of the NSWPF with respect to the management and control of the NSWPF. 33. A Police Officer who fails to follow a lawful order or carry out a lawful duty is guilty of a criminal offence pursuant to s 201 of the Act. Similarly, cl 8 of the Police Regulation provides that police officers are to comply strictly with the Act and the Regulation and promptly comply with all lawful orders from those in authority over them. Given the special protective role the NSWPF has within our community, these obligations are hardly surprising. … 36. The operation and scope of s 201 of the Act has been considered and determined by the High Court in State of New South Wales v Fahy (2007) 232 CLR 486 (Fahy) at [21] in which it was held that: "Read as a whole, the Police Service Act [as it was then known] demonstrated that the evident purpose of the legislation was, as may be expected, to create a hierarchical and disciplined force. Chief among the statutory provisions giving effect to that purpose was s 201 which made it a criminal offence for a police officer to neglect or refuse either to obey any lawful order or to carry out any lawful duty as a police officer." 37. Similarly, in Benic v State of New South Wales [2010] NSWSC 1039 (Benic) at [20], the Supreme Court read s 201 as giving the Commissioner of Police the power to 'give a direction to any member of the NSWPF with respect to their conduct, functions or actions, including putting them in harm's way, with which the member cannot lawfully refuse to comply without committing an offence.' 1. I agree that the Direction, as it applies to police officer members of the NSWPF, need only be lawful, with no additional requirement of reasonableness and a failure to comply with the Direction will constitute misconduct entitling the Commissioner to remove the offending officer from the Police Force. In any event, I do not accept the Applicant's arguments that the Direction was not reasonable. 2. The Applicant had raised two matters which she said made the Direction unreasonable and therefore her non-compliance could not constitute grounds for her removal. The first, made in the Applicant's statement of 19 December 2022, was that there had been inadequate consultation prior to the implementation of the Direction, contrary to the obligation to consult with workers provided for in the Work Health and Safety Act, as had occurred in Mt Arthur Coal. While this argument was not pressed at the hearing, I would dismiss it in any event for the reasons I set out at length in Lamarre-Condon at [118] – [127]. In short, while there could be a basis to conclude that the consultation process had been insufficient for the purposes of the Work Health and Safety Act that alone would not render the Direction unreasonable in circumstances where: 1. the Respondent had provided extensive information concerning COVID-19 and the vaccines to members of the NSWPF throughout the pandemic and the period when vaccines were available and provided various avenues for individual employees to provide feedback; 2. there was consultation with the consultative committee prior to the mandated time for the first vaccination under the Direction; and 3. the mandate was supported by the PANSW. 1. Second, the Applicant submitted that the Direction was not reasonable "as interpreted by the Respondent and applied to the Applicant in this case (in circumstances where she was not performing police duties)." According to the Applicant, the "health and safety rationale which underpinned the Direction is not advanced by an interpretation which requires officers who are not performing police duties to be required to be vaccinated during periods of off-duty." Such an argument has no weight in circumstances where the Applicant: 1. had been on-duty for some 23 days after the Direction was issued, yet took no steps to be vaccinated; 2. was only off-duty from 30 September 2021 to 6 October 2021 due to her failure to be vaccinated; and 3. after falling ill on 6 October 2023 made no application to be permitted to defer vaccination until her return to work and made no affirmative representation that she would become vaccinated when fit to return to work. 1. Thus, even if the Direction needed to be reasonable as well as lawful, in order to justify removal for non-compliance, I would find it to be so, consistent with the decisions of my fellow Commissioners in Southcombe, Welch and Ford. 2. Returning to the question of whether the Direction was lawful, while it is clear that the Direction was within the scope of the statutory power conferred on the Commissioner and did not transgress any statutory provision, the Applicant's late raised argument that the Direction was contrary to the 'no extra claims' clause in each of the Police Award, raised the possibility that the Direction was in breach of the Police Award. A contravention of an industrial instrument, such as an award, could result in a pecuniary penalty and an injunction being granted to restrain the further contraventions, pursuant to ss 357 and 359 of the Industrial Relations Act. 3. Clause 2.1 is identical in both the 2017 and the 2021 Police Award and provides: The parties agree that, during the term of this award, there will be no extra wage claims, claims for improved conditions of employment or demands made with respect to the employees covered by the award and, further, that no proceedings, claims or demands concerning wages or conditions of employment with respect to those employees will be instituted before the Industrial Relations Commission or any other industrial tribunal. 1. The argument made by the Applicant's counsel, as I understood it, was that a requirement to be vaccinated when not performing duties constituted an additional condition of employment that was not present at the time the employment commenced, in breach of cl 2.1, and that cl 2.1 supported the Applicant's construction of the Direction as being one that only prevented duties being performed if unvaccinated, and that to interpret the Direction as a mandatory vaccination direction, unconnected or insufficiently "proximate to the performance of duties", would be to "stray into the territory of making a demand on the employ[ee] under the award." [6] 2. It is not clear to me how a direction given to employees which is not "proximate to the performance of duties" could constitute a "demand made with respect to the employees covered by the award" in contravention of cl 2.1 of the Award. 3. A direction given which was truly unconnected to the performance of duties, that is, outside of the scope of employment, would not be a direction with which an ordinary employee would have to comply: R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan [1938] HCA 44; 60 CLR 601 at 621-622; CFMEU v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059; 310 IR 399 at [64] – [67]. While police officers are not ordinary employees, I doubt that a direction which was wholly unconnected to the performance of duties could be regarded as a 'lawful order' with which an officer was obliged to comply. Consistent with this view, I have already discussed above, the reservations I expressed in Lamarre-Condon regarding whether the applicant in that case was obliged to comply with the Direction in circumstances where she was on maternity leave when the Direction was given and was not due to return to work until 1 January 2022. While I appreciate that sworn police officers are required to comply with directions even when off-duty (see regs 8 and 9 of the Police Regulation), the direction must still be within the scope of their duty. However, as I have already explained, the Direction did apply to the Applicant from the moment it was issued on 7 September 2021 and the evidence established that Applicant had taken no steps prior to 7 October 2021 to comply with the Direction and thereafter, she made no application to defer her vaccination until a time when she was fit for work. 4. In any event, for the reasons which follow, I do not consider that a direction that staff be vaccinated in order to meet work and health and safety obligations would constitute a "demand made with respect to the employees covered by the award" within the meaning of cl 2.1. 5. In Fire Brigade Employees' Union of New South Wales v Commissioner of Fire and Rescue New South Wales (PAD Program) [2021] NSWIRComm 1041 (FRNSW PAD Program) Commissioner Sloan had to consider whether a proposal by Fire and Rescue NSW (FRNSW) to require firefighters to administer basic life support to members of the public suffering a cardiac arrest, including by applying an automated defibrillator, constituted a "demand made with respect to the employees covered by the award" and so contrary to a 'no extra claims clause' in the award covering firefighters, which was in identical terms to cl 2.1 of the Police Award. At [26] Commissioner Sloan explained that, on a proper construction of the clause: "… a demand made of employees by FRNSW to relinquish or reduce any existing entitlements, or to change the duties they perform or the manner in which those duties are performed in a way not anticipated by the award, would be captured by cl 43.1 and be impermissible." 1. In that matter Commissioner Sloan found that the implementation of the proposed program by FRNSW would result in a substantial change to the duties performed by the firefighters, or the manner in which their duties are performed, and so would constitute an 'extra claim'. 2. Directing police officers to become vaccinated against COVID-19 does not involve the relinquishing or reducing of existing employment entitlements, nor does it change the duties police officers perform or the manner in which they perform those duties. Receiving a vaccination, which the evidence in this matter established was due to work health and safety concerns, does not change the 'value' of an employee to the employer, or the quality or quantity of the work they perform, such that they should not be required to do as requested without an adjustment to their terms and conditions of employment. 3. I note that this view is consistent with the observations of Burley J in Murdock v Virgin Australia Airlines Pty Ltd (No 2) [2023] FCA 569 at [94] (by reference to the Full Court decision in Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84; 222 FCR 152 at [44] – [59]) that 'extra claims' clauses in enterprise bargaining agreements, "concern collective rights, rather than the implementation of policies directed to the health and safety of workers." In arriving at this view his Honour considered that the prohibition in the enterprise bargaining agreement on "any other extra claims" would: "… most naturally would be understood to be claims additional to or further beyond those within the ambit of the agreement but within the contemplation of the parties pursuant to the agreement." 1. His Honour considered that the enterprise bargaining agreement he was considering did not prevent the employer, Virgin, from making claims outside its scope, namely a requirement that employees be vaccinated for COVID-19, and that it could not "sensibly be said that the [no extra claims clause] covers the field of action that Virgin may take vis-à-vis individual employees." Such an approach is consistent with the view taken by Commissioner Sloan in FRNSW PAD Program that the question as to whether there was a breach of the 'no extra claim' clause involved a consideration as to whether entitlements were relinquished or reduced, or duties changed, "in a way not anticipated by the award". 2. I note that the Police Award essentially sets terms for the payment of salaries and allowances, leave, hours of work and other entitlements. It does not cover requirements in respect of work, health and safety. 3. I also consider that the legal obligation imposed on workers by s 28 of the Work Health and Safety Act, to comply, so far as the worker is reasonably able, with any reasonable instruction that is given by a person conducting a business or undertaking to allow the person to comply with the Work Health and Safety Act, at the least, points to the giving of such an instruction as not being an 'extra claim' or, alternatively, would override or take precedence over, the terms of any Award. 4. A further impediment to the Applicant's argument is the decision of Commissioner O'Sullivan in Sabri v Health Secretary in respect of South Western Sydney Local Health District [2023] NSWIRComm 1055. In that matter Commissioner O'Sullivan rejected an argument that the Health Secretary's Determination made under s 116A of the Health Services Act 1997, pursuant to which the requirement to be vaccinated for COVID-19 was made a condition of employment for all existing and new employees, was unlawful and of no effect as it constituted a contravention of the no extra claims clause of the Public Health System Nurses' and Midwives' (State) Award 2019. 5. In the premises I reject the Applicant's claim that the Direction was in breach of cl 2.1 of the Police Award and hence I do not accept that cl 2.1 supports a construction of the Direction as being one that only prevented duties being performed if unvaccinated. 6. For completeness, I note that the Respondent's counsel argued that: "… directing a police officer to do something isn't a demand made with respect to employees covered by the award. If that analysis was to follow, then at Parramatta Police Station later this afternoon when Sergeant Jones says to Constable Bloggs, "I'm directing you to go and do this", is that a demand made with respect to an employee covered by the award? Obviously not." [7] 1. For the reasons discussed by Commissioner Sloan in FRNSW PAD Program at [52] – [56], albeit by reference to particular provisions in the relevant award in that case, I do not accept that the Commissioner could avoid the operation of the 'no extra claims' clause in the Police Award, simply by giving individual 'directions' across the entire workforce. Expressed another way, while the giving of an individual direction by 'Sergeant Jones' to 'Constable Bloggs' is unlikely to constitute a 'demand made with respect to employees covered by the award' for the purposes of cl 2.1 of the award, the giving of the same direction across the entire cohort, which does result in a relinquishing or reduction of entitlements or a change in the duties to be performed or the manner in which duties are to be performed in a way not anticipated by the award, will likely constitute such a demand. Was the Commissioner's Order Harsh or Unreasonable 1. While the Applicant submitted the Commissioner's Order was unreasonable, the reasons given for this view really went to the harshness of the Commissioner's Order. Unreasonableness in the context of ss 181E and 181F is typically concerned with the process, including the reasoning process, adopted by the Commissioner in arriving at a position where they no longer have confidence in the police officer's suitability to continue as a police officer. The only matters raised by the Applicant which related to the process by which the Commissioner determined that she should be removed pursuant to s 181D of the Police Act concerned the validity of the Assistant Commissioner's refusal of her exemption application and, in the alternative, the reasonableness of that refusal. The balance of the matters raised concerned the personal and economic consequences to the Applicant, which go to the harshness of the Commissioner's Order. The Exemption Application 1. As I have already recorded, on the heel of the hunt the Applicant argued that in the absence of production of a written instrument of delegation, the power to grant an exemption from the Direction "wasn't lawfully delegated and therefore it wasn't properly considered." [8] According to the Applicant she "she wasn't provided a proper opportunity to provide an exemption application to the direction [and] as such it can be considered that the decision to remove her was not in accordance with the due process." [9] 2. The Applicant relied upon s 31 of the Police Act which provides: The Commissioner may delegate to another member of the NSW Police Force any of the functions conferred or imposed on the Commissioner by or under this or any other Act, other than this power of delegation. 1. The Applicant contended that a delegation of such significance as the granting of an exemption to the Direction needed to be "by reference to a written instrument." [10] According to the Applicant: "Any officer wishing to make an exemption application is entitled to know exactly what powers have been delegated and who they've been delegated to in accordance with procedural fairness. In the absence of any written instrument of delegation, the applicant could not know who had been delegated the power to consider her application and whether her application was considered by someone who had the power to consider it." 1. The Applicant accepted that the Commissioner herself could grant exemptions, but said: "There is no evidence that the exemption was considered by the Commissioner and there was no reference in their evidence to any consideration by the Commissioner. If the exemption wasn't lawfully considered by the Commissioner or a delegate appointed, I submit that it remains in abatement until it's properly adjudicated. Essentially the direction providing the opportunity for the Commissioner of Police to delegate power and grant exemptions, and the failure of the respondent to properly delegate in this instance, constitutes the respondent's failure to comply with their own policy of (sic) procedure, and the respondent is in breach of their own direction in those circumstances. It's completely unreasonable to terminate the applicant on the basis that she allegedly did not comply with the direction." 1. I do not accept that submission. 2. I am prepared to infer, in circumstances where the Applicant called for the production of "any delegations issued by former Commissioner of Police Michael Fuller in relation to his direction issued on 7 September 2021 titled 'Direction – Mandating of COVID 19 Vaccinations – Protecting the heath (sic) and safety of members of NSWP and the broader NSW community" and nothing was produced, and where I granted the Respondent leave to put on further material in answer to this aspect of the Applicant's case, but she chose not to put on any further material, nor did she apply for an adjournment, that there was no written delegation authorising Assistant Commissioner Wood to grant exemptions from the requirement to be vaccinated. However, I am not persuaded that a written delegation was required. Moreover, there is evidence that the exemption request was separately considered by the Commissioner. 3. Section 31 provides that the Commissioner may delegate any function conferred or imposed on the Commissioner by or under the Police Act or any other Act. Section 49 of the Interpretation Act 1987 (NSW) governs the delegation of functions conferred under an Act or instrument. It provides: 49 DELEGATION OF FUNCTIONS (1) If an Act or instrument confers a power on any person or body to delegate a function, the person or body may, in accordance with the Act or instrument, delegate the function to a person or body by name or to a particular officer or the holder of a particular office by reference to the title of the office concerned. (2) A delegation-- (a) may be general or limited, (b) shall be in, or be evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for that purpose, and (c) may be revoked, wholly or partly, by the delegator. (3) A delegated function may be exercised only in accordance with any conditions to which the delegation is subject. (4) A delegate may, in the exercise of a delegated function, exercise any other function that is incidental to the delegated function. (5) A delegated function that purports to have been exercised by a delegate shall, until the contrary is proved, be taken to have been duly exercised by the delegate. (6) A delegated function that is duly exercised by a delegate shall be taken to have been exercised by the delegator. (7) If-- (a) the exercise of a function by a person or body is, by virtue of an Act or instrument, dependent on the opinion, belief or state of mind of the person or body in relation to any matter, and (b) the person or body has delegated the function to some other person or body, the function may be exercised by the delegate on the opinion, belief or state of mind of the delegate in relation to any such matter. (8) If a function is delegated by or to a particular officer or the holder of a particular office-- (a) the delegation does not cease to have effect merely because the person who was the particular officer or the holder of the particular office when the function was delegated ceases to be that officer or the holder of that office, and (b) the person for the time being occupying or acting in the office concerned is taken to be the delegator or delegate (as the case requires). (9) A function that has been delegated may, notwithstanding the delegation, be exercised by the delegator. (10) This section applies to a sub-delegation of a function in the same way as it applies to a delegation of a function, but only in so far as the Act or instrument that authorises the delegation of the function also authorises the sub-delegation of the function. 1. Thus, pursuant to s 49(2) a delegation of power conferred under an Act or instrument must be in writing or evidenced by, writing signed by the delegator. 2. The making of the Direction itself may have involved the exercise of a function personally conferred on the Commissioner. Section 8(4) of the Police Act provides: (4) The Commissioner may issue (and from time to time amend or revoke) instructions to members of the NSW Police Force with respect to the management and control of the NSW Police Force. 1. The Direction was issued by the then Commissioner, and it expressly countenanced, in paragraph 3(b), that he might delegate to "another member of the NSWPF", the discretion to make a determination that a member may be excused from the requirement to be vaccinated. If the delegation of the discretion to grant exemptions needed to comply with s 49 of the Interpretation Act, the Direction itself arguably complied with the requirement that a delegation be in, or evidenced by, writing. 2. In any event I do not consider it was necessary for the delegation to comply with s 49. The granting of exemptions to the Direction was not a function conferred on the Commissioner by the Police Act and the Direction was not an 'instrument' within the meaning of s 3 of the Interpretation Act. As counsel for the respondent submitted: Section 31 is what allows the Commissioner of Police, like any other public sector employer, bodies, offices, to delegate particular functions and the Commissioner of Police under s 31 has the power to delegate any function under the Police Act other than the power of delegation This isn't a statutory function. This was a direction that was issued in the consequence of the respondent exercising at that stage his managerial prerogative. Consistently with s 8 of the Police Act, which also sets out, very clearly, that the Commissioner of Police can manage and control the New South Wales Police Force. This is not something that needed to be the subject of a particular instrument of delegated authority. Again to, at the risk of engaging in yet another hypothetical exercise but here I go, if the Commissioner of Police was to say for argument's sake, well, I want to ‑ I'm directing that there be RBT duties conducted on Smith Street, Parramatta out the front of this Commission at 4 o'clock this afternoon, …I delegate to whoever I so choose to conduct that particular operation. It can't seriously be said that what the Commissioner of Police then needs to do is sign an instrument of delegated authority that ways, right, well I'm delegating to this Deputy Commissioner the ability to run that, and then the Deputy Commissioner delegates it to an Assistant Commissioner to a Superintendent to an Inspector to a Sergeant, to a Senior Constable. That'd be a nonsense. It's not at all correct. Ultimately what we way here, and what all of the evidence shows, including I might point out the policy documents that the applicant has put into evidence herself, is that the Assistant Commissioner for Human Resources, Assistant Commissioner Gavin Wood, was the person who was considering these exemption requests. A person who was a senior police officer to the applicant by some considerable distance in rank, and who was, in my submission, acting as the actual or ostensible agent of the Commissioner of Police and he was entitled to do that, he was entitled to consider the exemption requests. This idea that the exemption request therefore just wasn't considered in my respectful submission just doesn't follow. 1. I agree with these submissions. I therefore reject the Applicant's contention that her exemption request was not considered and determined because the Assistant Commissioner did not have authority to consider and determine the request. The Applicant did not reference any authority which would cause me to doubt the correctness of this view. 2. Nevertheless, if I am wrong in this view, it is abundantly clear that the Commissioner personally considered the exemption request, albeit after it is had been considered and denied by Assistant Commissioner Wood, when she considered the Applicant's response to the s 181D(3)(a) notice and determined to remove the Applicant from the Police Force. The Commissioner referred explicitly to the Applicant's exemption request and its contents, in her Statement of Reasons (as I have set out at [51] above), and, as counsel for the Respondent submitted: " …if [the Commissioner] reads that exemption request and says, well that's a really compelling reason as to why you should be exempted from compliance with the direction, then she wouldn't have lost confidence in Ms Chrystal, that's the reality.…if any of [the reasons in the exemption request] had been persuasive in some way, she would have said, I'm not losing confidence in you, Ms Chrystal, you can stay, [although] there might be some other sort of disciplinary consequences…" [11] 1. In the circumstances, if Assistant Commissioner Wood did not have authority to consider and grant exemptions from the vaccination requirement (and to be clear, I do not consider that to be the case), the Commissioner nevertheless either ratified the Assistant Commissioner's determination not to grant an exemption, or made a fresh determination of her own, not to grant an exemption. 2. The Applicant also contended that the invalid delegation of the power to grant exemptions, resulted in a denial of procedure fairness as the Applicant did not know who was determining the exemption request or the extent of the delegation. However, the Applicant was unable to explain what practical difference this would have made. It was not contended that additional or different material would have been put before the decision maker had the Applicant known who the decision maker was and/or had she known the metes and bounds of the delegation. In circumstances where the Commissioner, when she determined to remove the Applicant, also had regard to the matters raised by the Applicant in her exemption request, in particular her request to work from home and that she would 'consider' taking the Novavax vaccine when available, and expressly and for logical and rational reasons, disallowed those reasons, I reject the Applicant's submission that she was denied procedural fairness. 3. The Applicant also contended that the response provided by Assistant Commissioner Wood demonstrated a lack of consideration of the Applicant's individual circumstances and a lack of consultation with her regarding those circumstances. However, while the Assistant Commissioner's written reasons for rejecting the request were short, they made clear that he had considered the reasons for the exemption put forward by the Applicant and considered that they did "not provide any extenuating circumstances that warrant deviation" from the requirement to be vaccinated. There is no basis for me to find that he did not properly consider the request. 4. I do not accept that the Applicant was not consulted about her own circumstances. The exemption request itself provided her with this opportunity. Ms Jones recorded on the exemption request that the Applicant had been encouraged by her team leader and human resources manager to access the vaccination and the benefits of vaccination discussed with her (although the Applicant denied she had any such discussions with Ms Jones). Importantly, the Applicant did not give any evidence of being denied an opportunity to put forward her case as to why she should be permitted to be excused from the requirement to be vaccinated. 5. Lastly, I consider that the Commissioner's Statement of Reasons, in which she explained why the Applicant could not be permitted to work from home in lieu of receiving the vaccination, also explains why Assistant Commissioner Wood came to the view that there were no extenuating circumstances justifying the grant of an exemption, noting that he and/or the Commissioner had 'absolute discretion' as to whether an exemption should be granted. I do not consider, given the operational matters canvassed in the Commissioner's Statement of Reasons, that the denial of the exemption could be regarded as unreasonable. The Personal and Economic Consequences to the Applicant 1. The Applicant submitted that the Commissioner's Order was harsh for the reasons set out at [67(4)] above. 2. I accept that the Applicant: 1. had an unblemished 30-year career in the NSWPF and the character references tendered in evidence, including from a number of current and former school teachers, including school principals, attest to the fact that she was a dedicated police officer; 2. as at 30 September 2021 she had 218.93 hours of annual leave, 1,871.87 hours of sick leave and 902.68 hours of extended leave; 3. from 6 October 2021, has suffered and she continues to suffer, from post-traumatic stress disorder; 4. was earning approximately $1,400 per week as a police officer, but as from 20 June 2022 was earning $468 per week working as a casual receptionist; 5. due to her loss of income she and her husband had to sell their home in Hornsby, where her sick mother-in-law had lived in a granny flat and move to Vacy in the Hunter region (although there was some contradictory medical evidence which suggested the move was made partly "to avoid people"), and her mother-in-law has had to move to a nursing home. 1. I do not accept that the Applicant would have been entitled to apply for benefits under the NSWPF's early retirement scheme known as the "Optional Disengagement Scheme" and hence I do not accept that this was an option available to the Commissioner instead of removal, as submitted by the Applicant. The scheme was only introduced on 1 January 2022. By that date the Applicant had breached the Direction and was subject to a process that could result in her removal. The scheme expressly excluded officers who "are subject to a process that may result in their retirement or removal" or "are, or become, the subject of an active investigation or conduct action under Parts 8A or 9 of the Police Act 1990 (NSW)". Further, officers in receipt of any weekly workers compensation benefit payments are excluded, although as at the date of the decision to remove the Applicant, she was no longer in receipt of any workers compensation benefits. 2. Undoubtedly the Applicant's removal from the NSWPF has had a terrible emotional and financial impact on her. However, this is the experience of almost everyone whose livelihood is terminated against their wishes. The question is, was removal from the NSWPF proportionate, in light of her conduct; the matters I have set out in the previous paragraph; and the possible alternatives to removal open to the Respondent? 3. It is with somewhat of a heavy heart that I must conclude that the Applicant's removal from the force was a proportionate measure in all the circumstances. 4. The Applicant in Denshire had argued that it was unduly harsh to be dismissed for misconduct, "a term usually reserved for the most heinous of crimes." [12] Whilst misconduct can obviously be found for less than a 'heinous crime', I accept that it is extremely distressing for a loyal and otherwise law abiding officer to be found to have engaged in misconduct. 5. As Commissioner Muir in Denshire explained, at [54] – [55]: While it may seem hard to be removed in this way, the 181D process is the only one open to the Commissioner, and as set out above, the NSWPF is a hierarchical organisation in which more than most workplaces, a conscious decision not to follow the Commissioner's direction founds a rational basis for removal. It is understandable that the applicant is offended and distressed at being removed via a process that would also be used for a police officer who had committed a serious criminal offence. But as I have observed, the Parliament has given the Commissioner one process to remove police officers. 1. In other workplaces, a conscious decision not to follow a direction would not necessarily found a basis for dismissal. However, as has been explained, it is imperative for the proper functioning of the Police Force and to enable it to carry out its mission to work with the community to reduce violence, crime and fear, as provided for in s 6 of the Police Act, that police officers follow lawful directions, even those with which they disagree. 2. As is apparent from various citations I have given in this decision, there have been a number of unfair dismissal claims brought by sworn officers of the NSWPF arising from their failure to comply with the Direction. While each matter obviously has a different factual matrix, generally speaking each applicant had refused to comply with the Direction out of a fear that vaccination could be harmful to them. It seems the Applicant in this case held similar fears. 3. While such a fear is understandable, what is not understandable, and ultimately is indefensible, is that sworn officers, who are legally obliged to obey any lawful order given to them, including those that will patently put their lives at risk, failed to comply with a direction which only required them to receive two doses of a vaccine where had been approved by the Australian Therapeutic Goods Administration and in relation to which there is no evidence of widespread health risks. It is a public and personal tragedy that officers who, prior to the pandemic, on a regular if not daily basis, risked their lives in the routine performance of their ordinary duties, refused to obey a lawful direction to get vaccinated, given by the Commissioner (and other senior ranking officers) in the interests of work, health and safety, because to comply carried a risk, no matter how small, to their health. According to the evidence of Superintendent Driver, 55 officers were removed for failure to comply with the Direction. 4. I understand that some officers were genuinely affronted by what they regarded as an unreasonable imposition on them, and/or were genuinely concerned about the short- or long-term health implications of receiving the vaccination. However, the fact is, police officers are not ordinary employees. They are obliged to comply with a lawfully given order or direction, including one that puts them in harms' way: see Benic v State of New South Wales [2010] NSWSC 1039 at [20] (Garling J). 5. I understand why, in the circumstances, the Commissioner can no longer have confidence in the Applicant, and she must be removed from the Police Force. As Commissioner Webster observed in Southcott at [59], the Commissioner must have confidence that police officers will comply with her directions "even when the Police Officer does not agree with them for whatever reason." 6. In the circumstances, alternatives to removal were not an option and the Applicant's removal was not harsh within the meaning of s 181E of the Police Act. 7. In arriving at this view I am conscious that the Applicant, at least for some period after the issue of the Direction, was genuinely of the view that the Direction simply meant that, in the absence of an exemption, she would be forced to take leave (other than sick leave) she had accrued. However, as I have already explained, it ought to have been clear to the Applicant by 25 September 2021 at the latest, that the Commissioner was requiring her to be double vaccinated and she could not avoid this requirement by simply going on leave. Superintendent Driver gave evidence that some officers who did not comply with the Direction by the due date, subsequently received the vaccination and instead of being removed were "given a non-reviewable action outcome" [13] pursuant to s 173 of the Police Act. This was a course which was available to, but not taken by, the Applicant. The Interests of the Applicant and the Public Interest 1. Pursuant to s 181F(3) of the Police Act I must have regard, in making my decision, to the interests of the Applicant and the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force and the fact that the Respondent made the order pursuant to s 181D(1)). 2. I have had regard to these two interests in the foregoing consideration. In summary: 1. the public interest in this case, especially as it is defined in s 181F(3) of the Police Act, strongly supports the Commissioner's Order; 2. in particular, the hierarchical nature of the NSWPF and the rational and protective basis for the Direction, indicates that the public interest is best served by the Commissioner's Order; 3. while the removal of an experienced officer is extremely regrettable, the need to maintain discipline within the Police Force is paramount; and 4. while I have considerable sympathy for the Applicant and the predicament she found herself in after many years of loyal service, the fact is, the outcome is one she had the power to prevent. 1. I note that my view in respect of the weighing of the public interest with that of the Applicant's, largely mirrors the views expressed by Commissioner Muir in Denshire at [61] – [63] and in Roberts at [64] – [66]. 2. The Applicant has not discharged her onus to demonstrate that the Commissioner's Order was harsh, unreasonable or unjust. Orders 1. The application is dismissed. Janet McDonald Commissioner ********** Endnotes 1. Tcpt, 26 June 2023, p 17(16)-(19). 2. Tcpt, 26 June 2023, p 27(40)-(41). 3. Tcpt, 26.6.23, p 74(34) – 76(26). 4. Tcpt, 27 June 2023, p 87(36)-(38). 5. Tcpt, 27 June 2023, p 85 (15) – (16). 6. Tcpt, 27 June 2023, p 155(48)-(50). 7. Tcpt, 27 June 2023, p 155(25)-(30). 8. Tcpt, 27 June 2023, p 82(35) - (36). 9. Tcpt, 27 June 2023, p 82(36) - (39). 10. Tcpt, 27 June 2023, p 83(3). 11. Tcpt 27 June 2023, p 116 (13) - (15), (36) - (38). 12. Denshire at [53]. 13. Tcpt, 26 June 2023, p 67(12). Amendments 03 November 2023 - 1. Inserted the word 'at' in paragraph [2] after 'As' in the second sentence. 2. Inserted closing quotation marks at the end of quote in paragraph [40]. 3. Corrected 'here' to 'where' in paragraph [48](2). 4. Amended so paragraph [100] reads "in her" as opposed to "her in". 5. Removed typo at the beginning of paragraph [124]. 6. Corrected 'evidence' to 'evidenced' in paragraph [144]. 7. Corrected 'where' to 'were' in paragraph [165]. 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: 03 November 2023