Industrial Relations Commission of New South Wales Police Association v NSW Police (No 3) [2005] NSWIRComm 243 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. NOTIFIER Police Association of New South Wales PARTIES: RESPONDENT New South Wales Police FILE NUMBER(S): IRC 3877 of 2004 CORAM: Boland J Industrial Dispute - Police - Notification by Police Association of dispute under section 130 of Industrial Relations Act - Former police officer who had resigned seeking reinstatement or re-employment - Allegations of corruption - Jurisdiction - Whether subject matter of dispute notification constituted an industrial dispute - No relevant inconsistency between the Police Act and the Industrial Relations Act - No bar to Commission exercising jurisdiction re claim for reinstatement or re-employment - Held resignation caused by employer - Constructive dismissal - Held dismissal was unreasonable and unjust - Police officer reinstated on conditions CATCHWORDS: Police - Industrial Dispute - Notification by Police Association of dispute under section 130 of Industrial Relations Act - Former police officer who had resigned seeking reinstatement or re-employment - Allegations of corruption - Jurisdiction - Whether subject matter of dispute notification constituted an industrial dispute - No relevant inconsistency between the Police Act and the Industrial Relations Act - No bar to Commission exercising jurisdiction re claim for reinstatement or re-employment - Held resignation caused by employer - Constructive dismissal - Held dismissal was unreasonable and unjust - Police officer reinstated on conditions Government and Related Employees Appeal Tribunal Act 1980 Industrial Arbitration (Reinstatement Awards) Amendment Act 1978 Industrial Arbitration Act 1940 Industrial Arbitration Amendment Act 1976 Industrial Relations Act 1991 Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations Commission Rules 1996 Police Act 1990 Police Legislation Further Amendment Act 1996 Police Regulations Act 1899 Police Service Act 1990 Public Service Act 1979 Allison v Bega Valley Council (1995) 63 IR 68 Bigg v New South Wales Police Service (1998) 80 IR 434 Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22 Brown v Dunn (1894) 6 R 67 (HL). Burrows v Commissioner of Police, Giardini v Commissioner of Police [2001] NSWIRComm 333 Clarence v Electricity Commission of New South Wales (1990) 20 NSWLR 1 Commissioner of Police and Police Association of New South Wales [2005] NSWIRComm 132 Federated Municipal & Shire Council Employees' Union of Australia, NSW Division v Liverpool City Council (1988) 25 IR 246 Goodwin v Phillips (1908) 7 CLR 1 Hosemans v NSW Police (No 3) [2005] NSWIRComm 161 Hunter District Water Board Appointment Re [1980] AR (NSW) 950 IGA Distribution Pty Ltd v Moses (No 2) (2002) 114 IR 307 Jenkins v The Queen (2004) 79 ALJR 252, (2004) 211 ALR 116, [2004] HCA 57 Jones v Dunkel (1959) 101 CLR 298 Malcolm Lorne Bigg and the New South Wales Police Service [1996] NSWIRComm 207 CASES CITED: McCabe, John Stewart v New South Wales Police Service [1996] NSWIRComm 105 NSWPSPOA v Forestry Commission (1990) 39 IR 46 Orange City Bowling Club Limited v Federated Liquor and Allied Industries Employees' Union of Australia, New South Wales Branch [1979] AR (NSW) 90 Oswald v NSW Police Service (1999) 90 IR 42 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Police Association v NSW Police (2004) 139 IR 94 Police Association v NSW Police (No 2) (2005) 139 IR 103 Public Service Association (NSW) and anor v Industrial Commission (NSW) and anor [1985] 1 NSWLR 627, 11 IR 420 Public Service Association of New South Wales and Public Service Board, re Ristau (No 2) [1979] AR (NSW) 357 Public Service Board (NSW) v Police Association of New South Wales (1985) 20 IR 112 Public Service Board (NSW) v Public Service Association (NSW), Re Steele (1987) 17 IR 286 Regina v Christine Gay Fish and John Gordon Swan (2002) 131 A Crim R 172, [2002] NSWCCA 196, Rose v Hvric (1963) 108 CLR 353 Shop, Distributive & Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 Smith and New South Wales Police Service (No 2) [2004] NSWIRComm 311 Smith v Director-General of School Education (1993) 31 NSWLR 349, 51 IR 204 Walter Silberschneider v MRSA Earthmoving Pty Ltd (1987) 68 WAIG 33, (1988) 30 AILR 65 HEARING DATES: 05/16/2005; 05/17/2005; 05/18/2005; 05/19/2005; 05/20/2005; 05/26/2005 DATE OF JUDGMENT: 07/15/2005 NOTIFIER Mr B G Docking of counsel Solicitor: Mr A Howell Jones Staff & Co LEGAL REPRESENTATIVES: RESPONDENT Mr J H Pearce of counsel Solicitor: Ms M Buchanan New South Wales Police JUDGMENT: - 111 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Boland J Friday 15 July 2005 Matter No IRC 3877 of 2005 POLICE ASSOCIATION OF NEW SOUTH WALES v COMMISSIONER OF POLICE AND NSW POLICE (No 3) Notification under s 130 of the Industrial Relations Act 1996 by the Police Association of New South Wales of a dispute with New South Wales Police re refusal to reinstate Wayne John Walpole JUDGMENT [2005] NSWIRComm 243 INDEX INTRODUCTION JURISDICTION Part 6 of Police Act Section 405 of Industrial Relations Act Section 218 of Police Act Jurisdiction under Industrial Relations Act EVIDENCE BACKGROUND Walpole evidence at Selewski trial WS4's evidence at Selewski trial and at Royal Commission WS11's evidence at Selewski trial and at Royal Commission Potter's evidence at Royal Commission Haxton's evidence at Royal Commission WS14's evidence at Royal Commission Selewski's evidence at Royal Commission Oswald's evidence at Selewski trial and at Royal Commission Walpole's evidence at Royal Commission Section 181B process Walpole proceedings in Industrial Relations Commission - 1997 Suspension of Walpole Section 181D Process Resignation of Walpole Oswald proceedings in Industrial Relations Commission Campaign by Walpole and Association for reinstatement Skinner review and advice Potter CONSIDERATION Whether dismissal harsh, unreasonable or unjust Association's additional grounds FORM OF RELIEF SUMMARY OF FINDINGS ORDERS INTRODUCTION 1 Wayne John Walpole was employed by NSW Police and held the rank of Detective Sergeant. In May 1997 Mr Walpole was given notice under s 181D(3)(a) of the Police Service Act 1990 by the Commissioner of Police that the Commissioner did not have confidence in Mr Walpole in his suitability to continue as a police officer. The notice alleged corrupt conduct stemming back to an incident in 1990 and contained allegations relating to an incident in 1989 where it was alleged that Mr Walpole assaulted an arrestee. In the face of the notice Mr Walpole resigned from his employment because his solicitor had allegedly advised him there was no basis to challenge the merits of any removal and, as such, he felt he had no choice but to tender his resignation. 2 On 1 July 2004 the Police Association of New South Wales ("the Association") notified the existence of an industrial dispute between the Association and New South Wales Police. The dispute was said to be in respect of the refusal of New South Wales Police to reinstate or re-employ Mr Walpole. 3 The Association, on behalf of Mr Walpole, sought a recommendation from the Commission that Mr Walpole be reinstated or re-employed in his employment. The respondent contended that the Commission had no power to make such a recommendation because the Commission was without jurisdiction. In Police Association v NSW Police (2004) 139 IR 94 the Commission considered there was no jurisdictional bar to conciliating the dispute and, if circumstances required it, making a recommendation or giving a direction pursuant to s 134(2) of the Industrial Relations Act 1996: see [12]. The Commission reserved its position in respect of whether it had the power to order reinstatement or re-employment of Mr Walpole: [9]-[11]. 4 Conciliation proved to be unsuccessful and the respondent indicated it wished to press its jurisdictional objection that in the circumstances of this matter the Commission did not have the power to order reinstatement or re-employment. In Police Association v NSW Police (No 2) (2005) 139 IR 103 the Commission held there was no jurisdictional impediment to the Commission hearing and determining this industrial dispute. 5 The respondent appealed the abovementioned decisions and sought a stay of proceedings pending the resolution of the appeal. In Commissioner of Police and Police Association of New South Wales [2005] NSWIRComm 132 the Full Bench declined to stay the proceedings. 6 Following the refusal of the stay, a further attempt was made before the Commission, as presently constituted, to resolve the dispute by conciliation but again this was unsuccessful. The matter proceeded to hearing by way of arbitration, with the Association seeking the reinstatement of Mr Walpole. The arbitration proceedings concluded before me on 14 June 2005 with the filing of written reply submissions by the notifier on additional jurisdictional issues that arose in the course of the arbitration. This decision is about those arbitration proceedings and the outcome. 7 It is convenient to identify the dramatis personae: § Wayne John Walpole, formerly Detective Sergeant of Police who resigned in May 1997 and in respect of whom the Police Association of New South Wales seeks reinstatement. At the time of his resignation Mr Walpole had been served with a notice under s 181D of the Police Service Act alleging conspiracy to pervert the course of justice and perjury. § Peter Remfrey, Secretary of the Police Association. § Steven Francis Oswald, Inspector of Police. Mr Oswald had been dismissed from the Police Service in 1996 for reasons similar to the charges made against Mr Walpole. Mr Oswald was reinstated following a decision of the Full Bench of the Commission in March 1999. § WS4, a corrupt police who "rolled over" and gave evidence adverse to Mr Walpole and Mr Oswald before the Royal Commission into the New South Wales Police Service in 1996. § WS11, a corrupt police who "rolled over" and gave evidence adverse to Mr Walpole and Mr Oswald before the Royal Commission into the New South Wales Police Service in 1996. § WS14, a corrupt police who "rolled over" and gave evidence adverse to Mr Walpole and Mr Oswald before the Royal Commission into the New South Wales Police Service in 1996. § Detective Senior Constable Karen Potter (now Inspector Karen Webb). Ms Potter gave evidence to the Police Royal Commission that was said to implicate Mr Walpole and Mr Oswald in wrongdoing. § Detective Senior Constable Wendy Haxton (nee Hounslow). Ms Haxton gave evidence to the Police Royal Commission that was said to implicate Mr Walpole and Mr Oswald in wrongdoing. Ms Haxton resigned from the Police Service in February 1996. § George John Selewski, a convicted drug dealer with a long criminal record, who was arrested on 10 December 1990 on suspicion of involvement in the illegal manufacture of amphetamines at a property located at Lot 97 Castlereagh Road, Castlereagh. Mr Selewski gave evidence to the Police Royal Commission that was said to implicate Mr Walpole and Mr Oswald in wrongdoing. JURISDICTION 8 It is appropriate at the outset to address the jurisdictional issues raised by the respondent. It was submitted that the Commission is precluded from making an award or order reinstating Mr Walpole to his former position by virtue of various provisions of the Police Act 1990, in particular, ss 63, 89 and 77. The respondent also relied on s 405 of the Industrial Relations Act. It should be noted the respondent had not previously raised these jurisdictional objections and they were not dealt with in my earlier interlocutory judgments. Part 6 of Police Act 9 Section 89 of the Police Act provides: 89 Industrial arbitration or legal proceedings excluded in relation to appointments (1) The appointment of or failure to appoint a person to a vacant non-executive position, or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of the Industrial Relations Act 1996. (2) Subsection (1) applies whether or not any person has been appointed to a vacant non-executive position. (3) No proceedings for an order in the nature of prohibition, certiorari or mandamus, or for a declaration or injunction or for any other relief, lie in respect of the appointment of or failure to appoint a person to a vacant non-executive position, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment. (4) Subsection (3) does not affect the operation of the Government and Related Employees Appeal Tribunal Act 1980. (5) The failure of a non-executive commissioned police officer to be appointed for a further term of office as provided by section 72B is for the purposes of this section taken to be a failure to appoint a person to a vacant non-executive position. 10 Section 82 of the Police Act provides: 82 Vacation of non-executive positions (1) The position of a non-executive officer becomes vacant if the officer: (a) dies, or (a1) completes a term of office and is not appointed for a further term, or (b) is removed from office, or retires or is retired from office, under this or any other Act, or (c) resigns his or her position in writing addressed to the Commissioner. (2) The retirement or resignation of a non-executive officer does not take effect until: (a) the Commissioner accepts the retirement or resignation, or (b) the non-executive officer has given the Commissioner at least 4 weeks' notice in writing of the day on which the officer intends to retire or resign and the officer is not under suspension from office on that day. 11 Section 63 of the Police Act provides: 63 Definitions In this Part: appointment means appointment by way of promotion or transfer or otherwise. non-executive commissioned police officer means a commissioned police officer to whom this Part applies. non-executive officer means a member of NSW Police to whom this Part applies. non-executive position means the position of a member of NSW Police to whom this Part applies. vacant position , in relation to a police officer position, means: (a) a position that is not held by a person, or (b) a position to which a person is temporarily appointed, or (c) a position that is held by a person who is temporarily appointed to another position in accordance with section 66 (1A), or (d) a position that is held by a person who has ceased to be temporarily appointed to another position in accordance with section 66 (1A) if that person has no right of return to the position because of section 66 (1B). 12 Section 77 of the Police Act provides: 77 Appointment of sergeants to be made on merit (1) In deciding to appoint a person to a vacant position of a police officer of the rank of sergeant: (a) the Commissioner may only select a person who has duly applied for appointment to the position, and (b) the Commissioner must, from among the applicants who are eligible for appointment to the vacant position (excluding those who are excluded from selection by subsection (3)), select the applicant who has, in the opinion of the Commissioner, the greatest merit. (2) Despite subsection (1), in deciding to appoint a person to a vacant position of a police officer of the rank of sergeant that has not been advertised in accordance with this Act because it is an eligibility list position, the Commissioner must, from among the persons who are on the relevant eligibility list and who are available for appointment (excluding those who are excluded from selection by subsection (3)), select the person with the greatest merit according to the order of merit in that eligibility list. (2A) The Commissioner must, before appointing a person to a vacant position of a police officer of the rank of sergeant: (a) require the person to provide a statutory declaration, in such form (if any) as may be prescribed by the regulations, that the person has not knowingly engaged in specified misconduct or any other misconduct, and (b) have regard to the statutory declaration so provided. (2B) A person who fails or refuses, or who is unable, to provide a statutory declaration in accordance with a requirement made under subsection (2A) is ineligible for appointment to the position concerned. (2C) The failure, refusal or inability of a person to provide a statutory declaration in accordance with a requirement made under subsection (2A) must not be taken into consideration for a purpose other than the assessment of the person's eligibility to be appointed to the position concerned. (3) A person is excluded from selection for a vacant position if the person has been selected for appointment to another position in NSW Police the maximum salary for which is the same as or greater than the maximum salary for the vacant position. (4) In determining a person's entitlement to be appointed to a position under this section for the purposes of an appeal to GREAT, the fact that the person is excluded from selection for the position by subsection (3) is to be ignored. Note. The effect of subsection (4) is that an applicant for a position will have his or her rights of appeal to GREAT maintained, even if at the time of selection the applicant was excluded from selection because he or she had already been selected for appointment to a position of equal or greater salary. (5) In this section: eligibility list position means a position to which a current eligibility list under section 67A is applicable. relevant eligibility list , in relation to a position, means an eligibility list that is current and applicable to the position under section 67A. 13 The foregoing provisions of the Police Act appear in Part 6 - Non-executive officers of NSW Police. There was no issue that prior to his resignation Mr Walpole was a non-executive officer. 14 The respondent submitted that the award or order sought by the Association involved the appointment of Mr Walpole to a position that became vacant on his resignation in 1997. The respondent's failure to appoint Mr Walpole to such a vacant position was not, by virtue of s 89(1) of the Police Act, an industrial matter and, therefore, it was submitted, could not be regarded as an industrial dispute within the meaning of the Industrial Relations Act, given that an industrial dispute is defined in that Act as being a dispute about an industrial matter. 15 In relation to s 77 of the Police Act and associated provisions in ss 77A, 77B and 78, it was submitted for the respondent that because the terms of these provisions deal with aspects of industrial matters as defined in the Industrial Relations Act, namely, the appointment of sergeants and the withdrawal of selection for appointment, this indicates by way of negative implication that the functions and powers these sections create are to be exercised under the Police Act by the Police Commissioner only, and the jurisdiction otherwise existing in the Commission is displaced: Public Service Association of New South Wales and Anor v Industrial Commission of New South Wales (1985) 1 NSWLR 627; 11 IR 420. 16 In responding to these aspects of the respondent's jurisdictional contentions the Association submitted: (1) Historically and continuing to the present the legislature has made a distinction between promotion and transfer of police officers on the one hand and discipline on the other. It was submitted that the subject of this industrial dispute did not fall within the "promotion and transfer" stream covered by 63 and 89 of the Police Act . (2) The authorities clearly recognise a distinction between a dispute concerning promotion, or failure to promote, an employee, from a dispute concerning an action in dismissing an employee, and the question of reinstatement. (3) Disputes about dismissal, termination and then reinstatement do not fall within s 89 of the Police Act due to the following: (a) The judgment in Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22 (27 April 2005). The purpose of a reinstatement order is to ensure that the employee in question is placed in the status quo ante; (b) Despite the existence of provisions similar to s 89 in public sector employee provisions in other Acts since 1985, the Commission arbitrated dismissal and termination cases involving such employees. See for example NSWPSPOA v Forestry Commission (1990) 39 IR 46; (c) It is unnecessary that a position be vacant in order to reinstate Mr Walpole to his former position. It is only necessary that such a position be available, that is, that it exists whether or not it is vacant: IGA Distribution Pty Ltd v Moses (2002) 114 IR 307 at 315-316. (d) The statutory context within Part 6 of the Police Act itself includes a legislative distinction between "the appointment of or failure to appoint a person to a vacant non-executive position" referred to in s 89(1), as opposed to "dismiss": see s 72F and s 73(3). (e) Part 6 (Unfair dismissals) and Part 9 (Unfair contracts) of Chapter 2 of the Industrial Relations Act do not apply to or in respect of the employment of an "executive officer" under s 44(2A) of the Police Act . In contrast, no such exclusion exists in relation to a non-executive position. (f) Reinstatement cannot be correctly categorised as "the appointment of or failure to appoint a person to a vacant non-executive position". It is a different subject matter: see Public Service Board (NSW) v Public Service Association (NSW); Re Steele (1987) 17 IR 286. (g) Section 218 of the Police Act . (4) Disputes about refusal to employ do not fall within s 89. See 3(c) to 3(g) hereof and Orange City Bowling Club Limited v Federated Liquor and Allied Industries Employees' Union of Australia, New South Wales Branch [1979] AR (NSW) 90, which is authority for the proposition that the meaning of refusal to employ does not require the availability of an immediate job vacancy. 17 The respondent's essential contention in relation to ss 63 and 89 of the Police Act was that the award or order sought by the Association involved the appointment of Mr Walpole to a position that became vacant on his resignation in 1997. The respondent's failure to appoint Mr Walpole to such a vacant position was not, by virtue of s 89(1), an industrial matter and, therefore, it was submitted, could not be regarded as an industrial dispute within the meaning of the Industrial Relations Act, given that an industrial dispute is defined in that Act as being a dispute about an industrial matter. Section 63 is relevant because of its definition of, inter alia, "vacant position" and "appointment". 18 As to s 77, it was submitted that because it deals with aspects of industrial matters as defined in the Industrial Relations Act, namely, the appointment of sergeants and the withdrawal of selection for appointment, this indicates by way of negative implication that the functions and powers it creates are to be exercised under the Police Act by the Police Commissioner only, and the jurisdiction otherwise existing in the Commission is displaced. 19 I am not at all convinced of the validity of these aspects of the respondent's jurisdictional case. Sections 63, 77, 82 (position becomes vacant if officer resigns the position in writing) and 89 are all to be found in Pt 6 of the Act, which is concerned overwhelmingly with the appointment, transfer and promotion of non-executive officers. This contrasts starkly with Pt 9, which is concerned with the management of conduct within NSW Police including the action the Commissioner may take in respect of misconduct or unsatisfactory performance and removal of officers on loss of confidence grounds. What this dispute is about is not the respondent's failure to appoint Mr Walpole to a vacant non-executive position but rather the respondent's failure to, in effect, restore the status quo ante. The respondent referred to s 64(2) of the Police Act, which provides: (2) It does not matter whether the person appointed is or is not already a member of NSW Police. 20 This provision was introduced by the Police Legislation Further Amendment Act 1996 and followed a recommendation from the Royal Commission into the Police Service that the legislation be amended to provide for "lateral recruitment" (See Immediate Measures Report, November 1996 at [9.7]). This allows for the recruitment of officers from other police services, and the recruitment of civilians who, for example, possess special skills that would be an advantage to the Service. Section 64(2) is not directed to the position of Mr Walpole who having asserted he was constructively dismissed now seeks reinstatement or re-employment - relief peculiar to the Commission's unfair dismissal jurisdiction. 21 In my view Pts 6 and 9 of the Police Act constitute two quite separate subject matters; the former is the subject matter of appointment, promotion and transfer and the latter, to use a short hand term, is the subject matter of discipline. Where s 89(1) provides that the appointment of or failure to appoint a person to a vacant non-executive position, or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of the Industrial Relations Act, it is not referring to a refusal to meet a claim to reinstate or re-employ a person to that person's former position. If that were the case any order made pursuant to the provisions of Pt 9 of the Police Act reinstating an officer following his or her removal would be in conflict with s 89. 22 In Public Service Board (NSW) v Public Service Association (NSW); Re Steele (1987) 17 IR 286 one of the contentions of the appellant was that the proposed transfer of an officer from Wollongong to Wagga was to be regarded as an appointment to a vacant position and that in accordance with s 65A of the Public Service Act there was no power to make an award or order in relation to that matter. 23 Section 65A(1) was in similar terms to s 89 of the Police Act and provided: The appointment or failure to appoint a person to a vacant position in the Public Service, or any matter, question or dispute relating thereto, is not an industrial matter for the purposes of the Industrial Arbitration Act 1940. 24 At 17 IR at 287, the Full Bench held: We do not propose to deal at length with the contentions based on s 65A. It suffices to say that we agree with the conclusions of his Honour that the transfer of Mr Steele, although it may result in the filling of a vacancy at Wagga Wagga, cannot be correctly categorised as "the appointment or failure to appoint a person to a vacant position", any matter, question or dispute relating to which is expressly stated by s 65A not to be an "industrial matter" for the purposes of the Industrial Arbitration Act . The transfer of an officer is a different subject matter, as is recognised by s 115 of the Public Sector Act … 25 Similarly, I take the view that although it may result in the filling of a vacancy, an application arising out of an industrial dispute for reinstatement or re-employment of Mr Walpole cannot be correctly classified as "the appointment or failure to appoint a person to a vacant position" as provided by s 89 of the Police Act. It is a different subject matter as is recognised by Pt 9 of the Police Act. 26 Counsel for the Association referred the Commission to Blackadder. There the High Court made it clear that the purpose of a reinstatement order was to ensure that the employee in question was placed in the status quo ante. At [14] McHugh J held: To construe the power "to reinstate" as confined to restoring contractual or other legal rights fails to give full effect to the term "reinstate". To reinstate means to put back in place. In this context, it means that the employment situation, as it existed immediately before the termination, must be restored. It requires restoration of the terms and conditions of the employment in the broadest sense of those terms. It empowers the Commission to do more than restore the contract of employment. So far as practicable, the employee is to be given back his "job" at the same place and with the same duties, remuneration and working conditions as existed before the termination. The Full Court of the Federal Court erred in the present case by holding that "the emphasis on appointing the employee to a 'position' demonstrates that it is the contractual position which is either to be restored in its earlier terms or in equivalent terms." 27 At [33]-[34] Kirby J expressed a similar view: By the Act, and the order, reinstatement of the appellant was meant to be real and practical, not illusory and theoretical. In effect, if the respondent's argument were correct, it would permit the respondent to thumb its nose at the heart and core of the order made, namely that the appellant be "reinstated", that is, according to the word's derivation and ordinary meaning, "put back in place" in his former employment. The Act does not grant the employer the unilateral power to buy its way out of the obligations imposed on it under a valid law of the Parliament. The employer is bound to comply with the order and the Act. Its failure to do so produces statutory consequences to which, by his orders, Madgwick J sought to give effect. I agree with Callinan and Heydon JJ that Moore J in the Full Court of the Federal Court gave the correct analysis of what might happen in the future if the appellant were unable, or unwilling, to perform the work of his former position as a boner in the chilled boning room (or such other work as was later assigned to him). The purpose of a reinstatement order is to ensure that the employee in question is placed in the status quo ante. It is not to anticipate every eventuality that might thereafter arise; nor is it to provide the employee the subject of it with employment for life. What happens in the future, and what follows from what happens, depends on all the circumstances then obtaining. 28 Blackadder serves to reinforce the point that there is a significant difference between a claim for reinstatement or re-employment in a former position, which "requires restoration of the terms and conditions of the employment in the broadest sense of those terms" and a process of appointment to a vacant position that has nothing to do with restoration. 29 Additionally, I note that within Pt 6 of the Police Act is contained a distinction between "the appointment of or failure to appoint a person to a vacant non-executive position" as provided for in s 89(1) and dismissal or removal of an officer. Section 72F provides: 72F Powers of dismissal, removal and suspension not affected Nothing in this Division limits or otherwise affects any power under this Act to dismiss, remove or suspend a non-executive commissioned police officer. 30 Section 73(3) provides: (3) The Commissioner may dismiss any such probationary police officer from NSW Police at any time and without giving any reason. 31 The respondent contended that the claim by the Association to reinstate or re-employ Mr Walpole is not an industrial matter because of the provisions of s 89(1) of the Police Act. That is to say, the claim is, in reality, a claim about the respondent's failure to appoint Mr Walpole to a vacant non-executive position. The claim, however, does not seek that a vacant position be made available to Mr Walpole. In order to be reinstated a vacant position is not necessarily required to be available: IGA Distribution Pty Ltd v Moses (No 2) (2002) 114 IR 307 at 315-317. 32 Finally, the Association submitted that it was open to the Commission, in the alternative, to provide declaratory relief either by making orders under its general dispute powers or pursuant to s 154 of the Industrial Relations Act. The jurisdiction of the Commission to make declaratory orders is limited to the Commission in Court Session: see s 154. The Commission is not sitting as the Commission in Court Session. 33 I find that the provisions of Pt 6 of the Police Act are not a bar to the Commission exercising jurisdiction in respect of the claim for the reinstatement or re-employment of Mr Walpole. Section 405 of Industrial Relations Act 34 Section 405 of the Industrial Relations Act provides as follows: 405 Statutory provisions relating to public sector employees (1) Any award or order of the Commission does not have effect to the extent that it is inconsistent with: (a) a right of appeal under the Government and Related Employees Appeal Tribunal Act 1980 or the Police Service Act 1990, or (b) a function under the Police Service Act 1990 with respect to the discipline, promotion or transfer of a police officer, or with respect to police officers who are hurt on duty. (2) The regulations may provide that an award or order of the Commission has effect despite any right or function referred to in subsection (1). (3) This section does not affect any decision of the Commission under Part 6 of Chapter 2 (Unfair dismissals). 35 Counsel for the Association contended that s 405 was not a bar to the exercise of the Commission's jurisdiction in this matter. On the other hand, counsel for the respondent submitted provisions in almost identical terms to s 405 of the Act have been considered by the Commission in Public Service Board v Police Association (1985) 20 IR 112 and in Re Hunter District Water Board Appointment [1980] AR (NSW) 950. It was submitted the following propositions emerge from those judgments: (1) The inconsistency referred to in s.405 requires some direct collision with or abrogation of the "rights, power, authority, duty or function" specified in the sub-section. Police at 116; Hunter decision at 954; (2) An order or award which specifically directs or prevents a promotion or transfer of a member of the Police Service or a particular outcome in relation to a matter of discipline is an order which is inconsistent with a function of the Police Act with respect to the discipline, promotion or transfer of a police officer … Police at 117; (3) The inconsistency may arise by a necessary implication in the legislation that a matter is done in accordance with specific legislative provision. Police at 116; Hunter at 954. 36 Mr Pearce, for the respondent, submitted the award sought by the Association specifically directs an outcome with respect to the discipline of a police officer and is, accordingly, beyond the jurisdiction of the Commission by operation of s 405(1)(b) of the Act. 37 In considering the terms of s 405, I note, firstly, there does not appear to be any relevant regulations for the purposes of s 405(2). 38 Prior to the Industrial Arbitration Amendment Act No 38 of 1976, the Commission had only limited jurisdiction under the Industrial Arbitration Act 1940 to make an award or order in respect of public servants, teachers and police: see Public Service Association of New South Wales v Industrial Relations Commission of New South Wales (1985) 1 NSWLR 627; 11 IR 420 at 421-422. The 1976 Amendment Act removed from s 20(1) of the Industrial Arbitration Act most of the restrictions relating to police and the other classes of public sector employees, except s 20(1D) provided that: Nothing in this Act authorises the making of an award that: … (d) is inconsistent with any right, power, authority, duty or function conferred or imposed by or under the provisions of the Police Regulation Act , 1899, with respect to the discipline, promotion or transfer of a member of the police force; … 39 The 1976 amendments were made following an inquiry and Report by the then President of the Commission, Sir Alexander Beattie, entitled "Access to New South Wales Industrial Tribunals by Public Servants, Teachers in Government Schools and Police". The President's recommendations in relation to the amendments to the Police Regulations Act 1899 included the following: 19.2 Having given careful consideration to the various submissions summarised in sections 16, 17 and 18 of this report, I have reached the conclusion that, having regard to the interests of members of the police force of New South Wales, it is in the public interest that the Industrial Arbitration Act be amended to extend the powers of a conciliation committee (and consequentially, by force of s 30 of that Act, the powers of the Industrial Relations Commission of New South Wales) to make an award affecting the members of such police force (other than the Commissioner of Police, the Deputy Commissioner of Police, the Senior Assistant Commissioner of Police and Assistant Commissioners of Police) by authorising an award to be made for the purposes set out in paras (b) and (e) of s 20(1) of the said Act, subject to the provisos: (i) that no award shall be made affecting or relating to the discipline, promotion or transfer of members of the force or affecting or relating to any decision of the Commissioner of Police in respect of which an appeal lies to the Crown Employees Appeal Board under s 6(1) of the Police Regulation (Appeals) Act, 1923, as amended, or any statute passed in substitution for or amendment of the same; and (ii) that no award shall be made derogating from the provisions contained in ss 6, 6A, 9, 10, 10A, 12A, 12B, 12C, 12F, 12G and 18 of the Police Regulation Act, 1899, as amended or from the provisions of the Police Regulation (Superannuation) Act, 1906, as amended or any statutes passed in substitution for or in relation to those Act. 19.3 Just as the Public Service Board (par. 10.16) and the Director-General of Eduction (par 13.3 et seq.) expressed to the inquiry their apprehension that their capacity to carry out the responsibilities imposed upon them by statute would be impaired if the employees with whom they were concerned were granted further access to industrial arbitration, so did the Commissioner of Police, but I am satisfied that, while there are undoubtedly some special considerations applying to members of the police force, the Commissioner's apprehensions have no more foundation that those of the Board and the Director-General." … 19.11 It is common ground that questions concerning the discipline of members of the police force should be reserved to the Commissioner of Police except in so far as decisions of the Commissioner may be reviewed by the Crown Employees Appeal Board. Reference has been made in par 15.10 to the provisions of Section IX Discipline, of the Police Rules made under s 12 of the Police Regulation Act, and it is my understanding of the common ground between the Commissioner and the Police Association that they agree that no industrial tribunal should be empowered to derogate by award from any of the provisions contained in section IX. The rules include other provisions elsewhere than in Section IX which plainly are also concerned with discipline. I will not attempt to nominate al of them but mention, as examples, rule 1(c) in Section IV, Conditions of Service, dealing with the making of false, misleading or incorrect statements, the destroying or mutilating of official documents, etc., and rule 1(m) in the same section, dealing with liability to punish or dismissal for any one of a number of acts or omissions. The common ground for concerning the exclusion of disciplinary matters extends, as I understand it, both to the formulation of rules concerning discipline and to the implementation of rules by the Commissioner. … 19.13 Again it was common ground, that, subject to one question concerning appeals by commissioned officers against refusal of promotion, no amendment should be made to the Police Regulation (Appeals) Act concerning the appeals which lie by members of the police force to the Crown Employees Appeal Board or the powers of the Board to deal with those appeals and, further, that jurisdiction should not be conferred on the industrial tribunals to make an award affecting or relating to any decision of the Commissioner of Police in respect of which an appeal lies to the Board, as to which see par. 15.9 ante. 40 The Industrial Arbitration Act was further amended in 1978 by the Industrial Arbitration (Reinstatement Awards) Amendment Act No 99 of 1978, which inserted a new s 20A granting the Commission significantly wider powers in relation to the reinstatement of dismissed employees. In introducing the Bill, the Premier (Mr Wran) addressed the problem posed by an overlap of remedies between the Government and Related Employees Appeal Tribunal Act ("GREAT Act") and the powers conferred on the tribunals constituted by the Industrial Arbitration Act, including the Commission (see New South Wales Parliamentary Debates (Legislative Assembly) 20 February 1980, 4547 at 4551): As to the problem of duel ( sic ) access, the Government has decided that there should be an option in disciplinary cases so that a person may elect to forego a right of appeal to GREAT and let his union pursue the matter on his behalf through the Industrial Commission of New South Wales. This was particularly sought by a few of the unions, but the essential point is that the decision in each case will be made by the individuals involved. In effect, the arrangement is an extension of that in the Industrial Arbitration (Reinstatement Awards) Act 1978 which was limited to dismissal. As I said earlier, these are important Bills. They restate appeal rights generally for Government employees, they are acceptable to the parties and the Government believes that the new system will be a significant improvement over the existing system. 41 Section 20(1D) was amended by the 1978 Amendment Act to provide an exception for the operation of s 20A, so that the provisions of s 20(1D) allowed for the making of an award by the Commission directing the reinstatement of a public servant, teacher or police officer in accordance with the provisions of s 20A. So the position was that as a consequence of the 1978 Amendment Act the previous provision, which rendered nugatory any award made that was inconsistent with any function, etc., conferred or imposed by or under the provisions of the Police Regulation Act with respect to the discipline, etc., of a member of the police force, was modified to give the Commission the power to reinstate an officer that had been dismissed as part of any disciplinary process. 42 Importantly, this exception to the exclusion of the Commission's power to make an award or order inconsistent with, inter alia, a function with respect to the discipline, etc., of a police officer continued in the form of s 405(3) of the Industrial Relations Act. 43 The immediate legislative predecessor of s 405 was s 349 of the Industrial Relations Act 1991: (1) [ No jurisdiction to make certain awards ] The Commission has no jurisdiction to make an award or order that: (a) is inconsistent with any right of appeal under the Government and Related Employee Appeals Tribunal Act 1980 or the Police Regulation (Appeals) Act 1923; or (b) is inconsistent with any function conferred or imposed by or under the provisions of the Police Service Act 1990 with respect to the discipline, promotion or transfer of a police officer, or with respect to police officers who are hurt on duty. (2) [ Non-application of section ] This section does not apply to the jurisdiction of the Commission under Part 8 of Chapter 3 (Unfair Dismissals). 44 It may be noted that s 405 does not contain the expression "no jurisdiction" as was the case in the predecessor provision but merely provides that "Any award or order of the Commission does not have effect to the extent that it is inconsistent with …" 45 The position, then, putting aside momentarily the provisions of Divisions 1B-1D of Part 9 of the Police Act, is that notwithstanding an award or order of the Commission is rendered ineffective if it is inconsistent with a function under the Police Act with respect to discipline, etc., of a police officer, s 405 of the Industrial Relations Act does not affect any decision of the Commission under Pt 6 of Ch 2 of that Act. In other words, s 405 does not preclude the making of an order under s 89 of the Industrial Relations Act reinstating a police officer. The use of the term "decision" in s 405(3) has to be taken, in my opinion, as encompassing an order, otherwise s 405(3) would be meaningless. That a decision may encompass an order is confirmed by the definition of "decision" in the Industrial Relations Commission Rules 1996. "Decision" is defined as including "an award, order, direction, contract determination or ruling." I refer also to s 171 of the Industrial Relations Act, which provides: 171 Power to impose conditions A power of the Commission to make an award, order or other decision includes a power to make the decision subject to such conditions (including exemptions) as the Commission specifies when making the decision ( my emphasis ). 46 Where the provisions of Divisions 1B-1D of Pt 9 of the Police Act have application, it seems to me that notwithstanding the provisions of s 405 of the Industrial Relations Act and s 218 of the Police Act that the provisions of Divisions 1B-1D will operate to the extent of any inconsistency. Whereas s 405 allows for the application of the Act's unfair dismissal provisions, the later statutory provisions, i.e., Pt 9 of the Police Act, limit the operation of those provisions in certain ways. For example, see s 181G of the Police Act. I consider it must necessarily be implied that the general provision of s 405(3) has to be read as being inconsistent with the relevant special provisions in Divisions 1B-1D of Pt 9 of the Police Act but otherwise s 405(3) continues to apply: Goodwin v Phillips (1908) 7 CLR 1 at 14. 47 On another view of the two statutes, of course, and it is probably the view to be preferred, no inconsistency arises because they are easily reconcilable; they stand together. Section 218 of Police Act 48 As for the operation of s 218 of the Police Act, it provides: Industrial Relations Act 1996 not affected (1) The Industrial Relations Act 1996 is not affected by anything in this Act. (2) Subsection (1) does not limit section 44 or 89 or any provision of the Industrial Relations Act 1996. 49 In Re Steele the Full Bench of the Commission considered an appeal from Bauer J who held that the Commission had jurisdiction to make orders pursuant to the provisions of the Industrial Arbitration Act concerning the transfer of officers employed under the provisions of the Public Service Act 1979. The Public Service Board contended that it was inconsistent with that Act to make any award or order that affected the Board or department head when acting pursuant to s 112 or s 115(2), notwithstanding the provisions of s 8 of the Act. 50 Sections 112 and 115 dealt with the power of a department head to transfer an officer and, upon refusal, the power of the Board to dismiss the officer. Section 8 provided: Unless otherwise expressly provided, nothing in this Act affects the Industrial Arbitration Act 1940. 51 The Full Bench referred to the judgment in the Court of Appeal in Public Service Association (NSW) and anor v Industrial Commission (NSW) and anor [1985] 1 NSWLR 627; 11 IR 420 where the Court of Appeal considered the interaction between ss 113 and 114 of the Public Service Act and s 8 of that Act. Sections 113 and 114 dealt with the department head's powers in relation to Excess Staff and Excessive Salaries. The Chief Justice, after making reference to the relevant sections and to the High Court's decision in Rose v Hvric (1963) 108 CLR 353, stated: I have not thought it necessary to do more than summarise the content of the award sought. It is common ground that it is inconsistent in a number of important respects with ss 113 and 114. What, then, is the significance of this inconsistency? In a sense, once the operation of s 8 and ss 113 and 114 are subjected to the tests laid down in Rose v Hvric , the mere statement of the question at issue between the parties points inevitably to its answer. Sections 113 and 114 contain no explicit statement either that they are subject to an award made by the Commission or that they will apply irrespective of an award. They purport to be, and are, enactments of procedures affecting the rights of public servants in their conditions of service in situations of excess staff or excessive salaries. They are positive and affirmative in their form, but inevitably, they contain a negative implication precluding the making of an award inconsistent in operation, or in contradiction, of the enactments in these two sections. Once the assertion by the Association is recognised for what it is - a claim that the Commission has by s 8, a jurisdiction entitling it to override the terms of ss 113 and 114 - its claim must fail. The Commission's jurisdiction in this area is withdrawn in respect of the matters provided for in those sections. At the same time there remains jurisdiction to flesh out or complement the scheme provided always that any such award is not inconsistent in operation with, or contradictory of, the specific provisions of these two sections. In this regard there is no justifiable basis for concluding that the legislature has indicated an intention to preclude the Commission from entering this field at all. Just as in Rose v Hvric (supra) the general sentencing power in the Justices Act could be exercised without contradicting the express sentencing power in the Licensing Act, so, in the present case, there is ample room for the Commission to make an award that 'supplements or operates in tandem with' ss 113 and 114. I agree with the Commission's conclusion in these terms. 52 The Full Bench in Re Steele concluded (at 298) that whilst there was power under the Industrial Arbitration Act to deal with transfers of officers employed under the Public Service Act by way of order or award including a declaratory order, that power was affected by the specific provisions of ss 112 and 115. Accordingly, the Commission was not at large to make any order or award that it may have deemed appropriate in relation to transfer based on considerations such as the need for or the fairness involved in a particular transfer, or its view as to the genuineness or adequacy of the reasons for refusal of a transfer. However, the Full Bench held that where steps purported to be taken or proposed under ss 112 and 115(2) fell outside those sections because extraneous considerations were incorrectly taken into account or the actions of the Board or the department head may have been vitiated for other reasons, an order or award could be made that deferred or prevented a transfer. The Full Bench also held an award or order could be made dealing with ancillary matters such as travelling allowances. 53 Section 218 of the Police Act would appear to be expressed in stronger terms than s 8 of the Public Service Act in the sense that not only is the Industrial Relations Act said to be unaffected by anything in the Police Act but s 218(2) provides that s 218(1) does not limit any provision of the Industrial Relations Act. This would suggest that nothing in the Police Act, except perhaps ss 44 and 89, affected the Industrial Relations Act. 54 But even if the approach in Public Service Association (NSW) v Industrial Commission; re Redundancy and in Re Steele, were applicable in respect of the operation of s 218 it does not seem to me that Part 9 of the Police Act is inconsistent in any way with Pt 6 of Ch 2 of the Industrial Relations Act. As I earlier noted, it is more likely the two statutes can stand together. Jurisdiction under Industrial Relations Act 55 The more significant point here, however, is that where Divisions 1B-1D of Pt 9 of the Police Act have no work to do, it is apparent from s 405(3) of the Industrial Relations Act and s 218 of the Police Act that the Commission's jurisdiction under Pt 6 of Ch 2 of the Industrial Relations Act is unimpaired in respect of the dismissal of police officers. See also s 83(1) of the Industrial Relations Act, which provides that Pt 6 of Ch 2 applies to the dismissal of any public sector employee, which is defined to include a police officer. 56 In my opinion, this means where no order has been made under s 181D of the Police Act, removing an officer from NSW Police, or the order is a nullity, an officer is entitled to pursue relief under Pt 6 of Ch 2 of the Industrial Relations Act. The need to access the provisions of Pt 6 of Ch 2 may arise where, for instance, an officer has been constructively dismissed and no order was made under s 181D or where the removal order or the notice under s 181D(3)(a) was a nullity. The claim by the Association on behalf of Mr Walpole is a classic example; it is claimed that although no removal order was made, Mr Walpole was constructively dismissed because he was left with no option by the Commissioner of Police but to resign. Moreover, it was submitted the notice served on Mr Walpole under s 181D(3)(a) was a nullity. 57 Relief is not available to Mr Walpole under Division 1C of Pt 9 of the Police Act. Further, the Association has not sought relief through the processes available under Pt 6 of Ch 2 of the Industrial Relations Act. One option the Association has relied upon for relief, however, is s 136(1)(d) of the Industrial Relations Act, which provides: The Commission may, in arbitration proceedings, do any one or more of the following: … (d) make any other kind of order it is authorised to make (including an order made on an interim basis). 58 Pursuant to s 89 of the Industrial Relations Act, which is contained in Pt 6 of Ch 2, the Commission is authorised to make orders for reinstatement or re-employment where it is found the dismissal of the employee was harsh, unreasonable or unjust. The question, though, is whether using the vehicle provided by s 136(1)(d) can be said to be a "decision of the Commission under Part 6 of Chapter 2": s 405(3). 59 As I earlier found, a "decision" includes an order. But is an order reinstating or re-employing an employee, the making of which relies on the vehicle provided by s 136(1)(d), an order under Pt 6 of Ch 2 or an order under s 136(1)(d)? I take the view that an order referred to under s 136(1)(d) would be an order made pursuant to the relevant express power. So that if the Commission, pursuant to s 136(1)(d), was to make an order for the conduct of a secret ballot, the order would be an order under s 172 of the Act. Section 136(1)(d) is merely facilitative; it directs the Commission to the relevant express power in the statute under which the order may be made. Similarly, in arbitration proceedings, any order reinstating an employee (other than a dispute order under Pt 2 of Ch 3) would be an order under s 89 of the Act or, in other words, a "decision of the Commission under Part 6 of Chapter 2". 60 This approach to s 136(1)(d) is, I consider, the correct approach. If it not be correct it would, for the reasons I will shortly explain, create a lacuna in the scheme of legislation protecting the rights of police officers, because the Commission would be deprived of any coercive power to order the reinstatement of a police officer in circumstances of constructive dismissal described earlier. 61 Returning to s 405 of the Industrial Relations Act, I do not consider there is any doubt that the Commission would have the power to make a recommendation or give a direction to reinstate or re-employ a person pursuant to s 136(1)(a). Section 405 is only concerned with inconsistent awards and orders. Recommendations and directions are not orders or awards and so no inconsistency can arise. Of course, recommendations and directions are not enforceable and their acceptance relies to a large extent on the parties' common sense and goodwill and the perception they have as to whether the Commission, in making the recommendation or direction, has given adequate consideration to the merits of their case. Section 218 of the Police Act reinforces the conclusion that no bar exists to the making of a recommendation or direction under s 136(1)(a). 62 In relation to s 405(1), there is no right of appeal for Mr Walpole under the Government and Related Employees Appeal Tribunal Act or the Police Act, so that provision has no application. In relation to s 405(2), it renders nugatory any award or order of the Commission that is inconsistent with a function under the Police Act with respect to the discipline, promotion or transfer of a police officer, or with respect to police officers who are hurt on duty subject, of course, to s 405(3) the meaning and effect of which I have sought to explain. 63 It seems to me that any order made under Pt 2 of Ch 3 pursuant to s 136(1)(c), or an award made under Pt 1 of Ch 2 pursuant to s 136(1)(b), reinstating or re-employing Mr Walpole, would be inconsistent with a function with respect to discipline under the Police Act. "Function" is defined in the Dictionary to the Industrial Relations Act as including a "power, authority or duty." 64 It is transparently clear that the Commissioner of Police has the power to remove a police officer if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct: s 181D. It would be too narrow an interpretation of the term "discipline" to confine it to measures taken by the Commissioner short of removal. The history of the predecessor provisions of Pt 9 of the Police Act indicates that the Commissioner has always had the power, subject to appeal, to dismiss an officer as a disciplinary measure. The restructuring of the disciplinary provisions in the Police Service Act and the introduction of Divisions 1B-1D of Pt 9 in the latter half of the nineties did not alter the fact that as the ultimate disciplinary sanction, the Commissioner could remove a police officer subject, now, to review by the Industrial Relations Commission. Moreover, the use of the phrase "with respect to" in s 405(2) suggests that the term "discipline" should not be read down. As Kirby P observed in Clarence v Electricity Commission of New South Wales (1990) 20 NSWLR 1 at 4, the phrase "in respect of" was one of the widest connection. The same may be said of "with respect to". 65 In Public Service Board (NSW) v Police Association of New South Wales (1985) 20 IR 112, the Full Bench of the Commission in Court Session considered the meaning of "inconsistent" in s 20(1D)(d) of the Industrial Arbitration Act, the predecessor provision to s 405(2) of the Industrial Relations Act. At 116 the Full Bench held: Section 20(1D) refers to "inconsistency". This, in our view, requires some direct collision with or abrogation of the "right, power, authority, duty or function" specified in the subsection. This may arise from conflict between the terms of a proposed award and specific provisions of the Police Regulation Act . In other cases, for example, a case concerning transfer of a member of the police force where there appears to be no specific legislative provision, the conflict would arise from the terms of the proposed award and the possible abrogation or collision involved. We do not consider that an indirect or consequential effect would, in general, be sufficient to amount to inconsistency. If the existence of some consequential effect, however indirect, were to be the test the more general powers of the Commission, Conciliation Committees and Commissioners could be very much inhibited by the exceptions made by s 20(1D). 66 Any award or order reinstating or re-employing a police officer derogates from the power of the Commissioner to remove a police officer. Such an order or award would be directly inconsistent with a function under the Police Act with respect to discipline. I note that it is not the exercise of the function with respect to discipline where the inconsistency may arise but rather the function (or power) itself. 67 To summarise my findings in relation to the operation of the Industrial Relations Act: (1) There is no relevant inconsistency between the Police Act and the Industrial Relations Act that would render ineffective an order made under s 89 of the Industrial Relations Act and pursuant to the provisions of s 136(1)(d) of that Act. (2) Nothing in s 405 of the Industrial Relations Act prevents the making of a recommendation or direction under s 136(1)(a) of the Industrial Relations Act in respect of the reinstatement or re-employment of a police officer. (3) Any award made under Pt 1 of Ch 2 of the Industrial Relations Act and pursuant to s 136(1)(b) of that Act and any order made under Pt 2 of Ch 2 and pursuant to s 136(1)(c) reinstating or re-employing a police officer to his or her former position would be rendered ineffective by the provisions of s 405(2) of the Industrial Relations Act. EVIDENCE 68 The evidence in the proceedings included the following: (a) The transcript of proceedings before Fisher P on 20 February 1997 in matter No IRC 5195 of 1996 where senior counsel for the respondent admitted an embarrassing error had been made in framing the allegations against Mr Walpole in the notice under s 181B and that, therefore, the respondent would not be proceeding against Mr Walpole. The transcript and terms of settlement show that a settlement was reached whereby Mr Walpole was reinstated without loss of benefits. (b) An affidavit of Peter Remfrey, Secretary of the Association, which detailed the efforts made by Mr Remfrey and the Association on behalf of Mr Walpole to have him reinstated. Attachments to the affidavit included: extensive material documenting the history of the Walpole matter and the representations made on behalf of Mr Walpole by the Association to the various Commissioners of Police and Police Ministers; a copy of the decision of the Full Bench in Oswald v New South Wales Police Service given on 11 March 1999; a report by Detective Superintendent K J Seddon dated August 2000 reviewing the circumstances surrounding the resignation of Mr Walpole (Mr Seddon recommended reinstatement); the Review and Advice of Mr Peter Skinner of counsel dated 30 July 2002 regarding the resignation of Mr Walpole, recommending against his reinstatement. (c) A further affidavit by Mr Remfrey regarding the operation of the Police Rejoinee Program whereby officers who have previously left the Service are inducted back into the Service. It was Mr Remfrey's evidence that it was not uncommon for the NSW Police to accept rejoinees who had left the Service in excess of ten years previously. (d) Statement of Naguib Kaldas, Detective Superintendent. Mr Kaldas had known Mr Walpole for more than 14 years and had no reason to question his honesty and integrity. Mr Kaldas said "Mr Walpole was an excellent criminal investigator and an asset generally to the NSW Police." (e) Affidavit of Wayne John Walpole. (f) Transcript of proceedings in Stephen Francis Oswald v New South Wales Police Service before Fisher P in matter No IRC 5114 of 1997, March, April, May 1997. (g) Criminal history of George John Selewski. (h) Action taken by NSW Police against WS4, WS11 and WS14 in relation to their corrupt activities. (i) Statement of Stephen Francis Oswald that was exhibit "D" in the proceedings before Fisher P in the proceedings in 1997 and colour photographs taken by Mr Oswald of the entrance to Lot 97 Castlereagh Road, Castlereagh and the surrounding area, including West Wilchard Road. (j) Extracts from the transcript of the Police Royal Commission of 2 February 1995 and 8 March 1995 regarding the Commissioner's comments on the non-application of the rules in Jones v Dunkel and Brown v Dunn. (k) Black and white copy of a photograph of the gate to Lot 97 Castlereagh Road that was exhibit "O" in the proceedings previously mentioned before Fisher P in the Oswald matter showing the gate upright. (l) Map showing area where Lot 97 Castlereagh Road was located and West Wilchard Road, which was 400 metres from the entrance to Lot 97. (m) Statement of Mr John Ferguson, retired Senior Sergeant of Police. Mr Ferguson was commander of the Regional Special Weapons and Operations Squad from 1988 to 1993 and leader of the Armed Hold-up Unit, Major Crime Squad, North West Region between 1988 and 1997. Mr Ferguson said he was involved with Mr Walpole in many high-risk incidents and regarded Mr Walpole as an asset to the Police Service. He said Mr Walpole was a person of the highest integrity. Attached to Mr Ferguson's affidavit was a statement relating to the capture and arrest of Ross Graham Denney at Mudgee on 17 May 1989. (n) Statement of Erris James Shiels, a former Detective Sergeant with the Armed Hold-up Squad and member of the Special Weapons and Operations Squad. Mr Shiels worked with Mr Walpole between 1987 and 1993 and found him to be "a person of good character and of the highest integrity." (o) Statement of Trevor John Cheers, formerly a Detective Inspector with NSW Police. Mr Cheers worked directly with Mr Walpole for a number of years and stated that Mr Walpole was a "model of professionalism and integrity". Mr Cheers said Mr Walpole was "one of the most competent and professional officers I have had the opportunity to work with in my many years with NSW Police." Attached to Mr Cheers statement was a statutory declaration regarding the arrest of Mr Denney at Mudgee in May 1989. Mr Cheers said in his statutory declaration that after the arrest of Denney and back at the police station: I first saw the injury that was sustained to Denney's face. The injury was a small cut above his eye. Mr Cheers said Mr Denney was given first aid and taken to Mudgee Hospital. No allegation of assault was made and Mr Denney was later returned to a police cell. Mr Cheers said the allegation by WS14 that Mr Walpole caused Mr Denney's injury was "utterly untrue". (p) Bundle of documents that included: (i) Exhibits and other materials from proceedings before Fisher P in the Oswald matter, which included the transcript of evidence of WS4, WS11, WS14, Mr Selewski, Detective Senior Constable Potter and Ms Haxton in the Police Royal Commission. (ii) Bundle of documents concerning Detective Senior Constable Karen Potter including an Internal Affairs file. (iii) Letter dated 23 February 1996 confirming the resignation of Wendy Hounslow (Haxton) from the Police Service effective from 22 February 1996. (iv) Advice from Mr P S Hastings QC to Assistant Commissioner Schuberg, Commander, Professional Responsibility dated 26 July 1996 indicating that it was appropriate, having regard to material from the Police Royal Commission regarding the Selewski arrest, to issue a notice under s 181B of the Police Service Act on Mr Walpole. Further, that it was appropriate to take the alleged assault of Mr Denney into account. (v) Advice from Mr Hastings QC to Acting Commissioner Taylor dated 28 August 1996 in respect of the representations by Mr Walpole following service of the notice on him under s 181B. Mr Hastings advised that dismissal of Mr Walpole, nevertheless, was appropriate. (vi) Various memoranda, letters and reports relating to Mr Walpole from files held by the respondent. (q) Affidavit of Inspector Ann Sullivan detailing the attempts made by the respondent to summons WS4, WS11, WS14 and Ms Hounslow to give evidence in the proceedings. (r) Additional transcript of evidence given by various persons in the Police Royal Commission in June 1996 tendered by the respondent. 69 Mr Pearce of counsel for the respondent contended that because of the period of time that had elapsed since Mr Walpole was served with a notice under s 181B, it was disadvantaged in defending the claim for reinstatement: Smith and New South Wales Police Service (No 2) [2004] NSWIRComm 311. This was one of the bases upon which the respondent contended it should be entitled to tender the transcript of evidence in the Police Royal Commission proceedings of Mr Selewski, WS4, WS11, WS14, Detective Senior Constable Potter and, I presume, Ms Haxton, as to the truth of what was said in that Royal Commission evidence, although it was submitted that there was no onus on the respondent to make out the allegations in the notices served on Mr Walpole under s 181B or s 181D because Mr Walpole had resigned. 70 Another basis upon which it was submitted the transcript should be received into evidence was that if the matter had proceeded to hearing in 1997 following the service of the notice on Mr Walpole under s 181B, the Royal Commission transcript would necessarily have been part of the evidence but without any need to call the witnesses: s 181B(1); Bigg v New South Wales Police Service (1998) 80 IR 434; Oswald v NSW Police Service (1999) 90 IR 42. A further basis was that fairness dictated the Commission receiving the transcript. 71 It was submitted that the Commission should receive the transcript of that evidence for all purposes, including as evidence of the truth of what was stated in it, notwithstanding that it was not the respondent's intention to call those persons who gave the evidence in the Police Royal Commission to testify as to the truth of their evidence given that there was no onus on the respondent such as that determined in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 because Mr Walpole had resigned. 72 Mr Pearce indicated that the only purpose in calling a number of the witnesses who gave evidence in the Police Royal Commission was to make them available for cross-examination by the Association. It may be noted not all of the witnesses could be called. Despite efforts by the respondent to find Mr Selewski in order to serve upon him a summons to attend and give evidence, Mr Selewski could not be found. I would observe, in this respect that the effort made by the respondent to find Mr Selewski seemed to me to be lacking in resolve, especially when it was known that Mr Selewski's record of attendance at court proceedings under summons was notoriously bad and when the effort to find him was initiated only some 21 days prior to when the substantive hearing in this matter was due to commence. 73 In the proceedings, the Commission ruled that the transcript would be received into the evidence in these proceedings but not as to the truth of what was said. In this respect the Commission stated: Counsel for the Respondent requests transcript of the evidence of several witnesses in the proceedings before the 1996 Royal Commission on the basis that the Commission should receive the evidence as being the truth of what was said by the witnesses. In my opinion counsel for the applicant has pointed to insurmountable hurdles to the Commission to allow into evidence the transcript of the Royal Commission on the basis that the evidence in those transcripts is evidence of the truth of what was said. Even if I was to allow it in to accommodate Mr Pearce's submissions that his client is prejudiced by the passage of time and the unavailability of certain witnesses and I should treat the matter as though Section 181 B of the Police Service Act applied, a submission that I am unable to accept in the absence of the witnesses in these proceedings, testing as to the truth of their evidence in the Royal Commission proceedings; the weight I would afford such evidence would be so slight as to be of negligible assistance to the Commission. My ruling is that I allow the transcript to be tendered into evidence in these proceedings on the basis that the transcript shows that evidence was taken in the Royal Commission but not on the basis that the evidence is evidence of the truth of what was said. Counsel may make use of the transcript as they see fit; that if the transcript is not evidence of the truth I could not see how it could be much use to either side. 74 As a consequence of this ruling, counsel for the respondent decided that he would not cross-examine Mr Walpole or Inspector Oswald in relation to their evidence in the Police Royal Commission, nor would he call those witnesses that were available who have given evidence in the Royal Commission adverse to Mr Walpole. 75 As to the contention that the Commission should approach the matter having regard to how s 181B applied, it may be noted that the reason the matter did not proceed to hearing and determination in 1997 was because the notice was wrong; it contained allegations that were factually incorrect as I will later explain, and senior counsel for the Acting Commissioner at the time accepted that he could not proceed on the basis of the flawed notice. Mr Walpole was consequently reinstated, although almost immediately suspended and some months later served with a notice under s 181D of the Police Service Act. How and why this occurred I will also explain shortly. 76 Counsel for the respondent faced some difficulty in convincing the Commission it should proceed on the basis of having regard to how s 181B applied when, because of the respondent's own failure to correctly frame the charges against Mr Walpole in the s 181B notice, it was forced to drop the charges and reinstate Mr Walpole. Moreover, the respondent could have, nevertheless, continued to rely on s 181B despite changes to the legislation that occurred in December 1996 when s 181B was replaced with s 181D. Part 11, Provisions consequent on enactment of Police Legislation Further Amendment Act 1996, of the Police Act provided: 39 Continued operation of section 181B (Dismissal of police officers - information arising out of Police Royal Commission) (1) Any action that had been commenced under section 181B but had not been completed before the repeal of that section may be completed, and an application may be made under Part 6 of Chapter 2 of the Industrial Relations Act 1996 in respect of any such action, as if that section had not been repealed. (2) Any application under Part 6 of Chapter 2 of the Industrial Relations Act 1996 in respect of action under section 181B, being an application made before or after the repeal of that section, may be dealt with under that Act as if section 181B had not been repealed. 77 As to the claimed disadvantage because of the passage of time the facts of this case are readily distinguishable from those in Smith and New South Wales Police Service (No 2). Further, I do not consider the delay can be sheeted home entirely to Mr Walpole or the Association. The reason I say this will become clearer once I have traversed in some detail the background to this dispute but it is sufficient for the moment to observe that after he resigned Mr Walpole began a campaign to achieve reinstatement that carried on throughout 1997 and 1998. Once the Association was full appraised of Mr Walpole's case it took up the campaign on his behalf, making repeated representations to the Commissioner of Police and the Minister for Police but without success. 78 It was not, therefore, a case of Mr Walpole or his Association, sitting on their hands since Mr Walpole's resignation. Moreover, as I understood counsel for the respondent he was in a position to call a number of witnesses who gave evidence in the Police Royal Commission adverse to Mr Walpole and perhaps, with more rigorous endeavours on the part of the respondent, Mr Selewski could have been found and summoned to give evidence in these proceedings. In other words, it would have been open to the respondent to present the transcript of evidence in the Royal Commission and to call at least most of the relevant witnesses to testify as to the truth of that evidence and allow those witnesses to be cross examined on their evidence. 79 Mr Pearce contended that there was no onus on the respondent to make out the charges against Mr Walpole because he resigned. It was palpably clear, however, that the Association's case was that Mr Walpole was constructively dismissed or there was a refusal to employ him because the respondent considered the charges of conspiracy to pervert the course of justice and perjury against Mr Walpole were charges of substance. In those circumstances, given the possibility the Commission might uphold the Association's case of constructive dismissal, it was always on the cards that an onus might arise requiring the respondent to make out the charges against Mr Walpole. That onus could not be discharged by merely relying on the transcript of evidence from the proceedings in the Police Royal Commission especially as, it will later be explained, the cross examination of witnesses in those proceedings did not, and was not meant to, determine the guilt or innocence of individual persons and could not be regarded, for the purpose of these proceedings, as a substitute for the cross examination of witnesses by counsel for the Association. 80 As to considerations of fairness, it could hardly be regarded as fair to allow the transcript of evidence in the Police Royal Commission to be received as evidence in these proceedings for all purposes, including as to its truth, and deprive the Association of the opportunity of cross-examination. This is especially so given the character of some of the persons who gave evidence in the Police Royal Commission. BACKGROUND 81 As I earlier noted, Mr Walpole held the rank of Detective Sergeant at the time of his resignation. There is no issue that he was an employee for the purposes of the Industrial Relations Act. Mr Walpole entered New South Wales Police as a trainee on 19 January 1981 and was attested as a Probationary Constable on 6 April 1981. His appointment as a Constable was confirmed on 6 April 1983. Mr Walpole was appointed to the rank of Senior Constable on 6 April 1990 and promoted to the position of Sergeant on 26 April 1994. At the time of his resignation Mr Walpole had been a member of the Police for 16 years. When he asserts he was forced to resign in 1997 he was a Senior Investigator with Taskforce Gap, which had been formed to investigate the murder of John Newman, a Member of the Legislative Assembly of New South Wales. 82 During his career Mr Walpole served as a member of the Special Weapons and Operations Squad ("SWOS") and later as field supervisor in the State Protection Group. He received a number of commendations for outstanding police work. A profile of Mr Walpole's career, which included a summary of complaints that had been made against him, showed that either the complaints were not sustained or no further action was required. 83 In December 1990, Mr Walpole was attached to the Armed Hold-Up Unit of the North West Region Major Crime Squad, holding the rank of Detective Senior Constable. On 10 December 1990, Mr Walpole had finished his day's work but was recalled to duty to provide specialist support (being a part time member of SWOS) to the Drug Unit of the North West Region Major Crime Squad. The support was required for an operation in which George John Selewski, a convicted drug dealer with a long criminal record, was suspected of involvement in the illegal manufacture of amphetamines at a property located at Lot 97 Castlereagh Road, Castlereagh. The operation took place, a search warrant was executed and two men, not including Mr Selewski who was not present, were arrested. Walpole evidence at Selewski trial 84 On 9 May 1994 Mr Walpole gave evidence in the trial of Mr Selewski and others in the District Court. He told the Court he had been involved in the operation on 10 December 1990. He said he went to 97 Castlereagh Road at about 9.30 pm in company with Detective Senior Constable Stephen Francis Oswald (now Inspector Oswald). Mr Walpole said the place smelt of chemicals but he did not enter the house on the property when the search warrant was executed. He said he stayed in the driveway "at the car". 85 Some time after the house was entered Mr Walpole said he and Mr Oswald were required to accompany a Detective Karen Leanne Potter (later Inspector Webb) and another officer (in separate vehicles) to a house in Racecourse Road, Clarendon, approximately 20 kilometres from the Castlereagh premises. I shall refer to the other officer as WS11 in order to maintain the anonymity accorded to that officer when he gave evidence to the Royal Commission into the Police Service ("Police Royal Commission") in 1996. WS11 had "rolled over" and was in the process of admitting criminal activities to the Royal Commission, including activities associated with the arrest of Mr Selewski. 86 The Clarendon property was a target of the same operation associated with the Castlereagh property. Mr Walpole and Mr Oswald arrived at the Clarendon property in a separate vehicle to the other officers. A quantity of cannabis plants was found and an arrest was made. Mr Walpole said he did not enter the Clarendon house because he was feeling ill. 87 Mr Walpole then gave evidence that between 10.30 pm and 11.00 pm he and Mr Oswald went back to the vicinity of the Castlereagh property and parked their vehicle in West Wilchard Road, which the evidence in these proceedings shows was 400 metres from the driveway entrance to the Castlereagh property. He said that another officer, who I shall refer to as WS4, who also "rolled over" and gave evidence of his criminal activities to the Police Royal Commission, joined him and Mr Oswald in the police vehicle. 88 Mr Walpole stated that a Commodore drove along the road and turned into the driveway of 97 Castlereagh Road, that he then drove into the driveway behind it and WS4 and Mr Oswald got out of the car and approached the driver who Mr Walpole later learned was Mr Selewski. Mr Walpole said that the Commodore stopped at the gate to the property because it was shut. Mr Walpole said he stayed in the car and did not hear the conversation with Mr Selewski and did not take part in any subsequent interviews with Mr Selewski. 89 In cross examination, it was put to Mr Walpole that Mr Selewski was arrested within half a kilometre of the Clarendon property, that he was taken by police to the Clarendon property and then taken to the Castlereagh property. Mr Walpole denied this was the case. 90 Mr Walpole was called to give evidence in the Police Royal Commission in June 1996. This followed allegations made by a number of police officers who had "rolled over" and admitted involvement in a number of criminal offences including fabricating evidence against Mr Selewski. In order to understand what occurred it is necessary to consider what was said in evidence by these officers and others at the Selewski trial and at the Royal Commission. WS4's evidence at Selewski trial and at Royal Commission 91 At the Selewski trial WS4 said that he entered the Castlereagh premises and remained there until about 10.50 pm when he left to join Messrs Walpole and Oswald in West Wilchard Road to await Mr Selewski's expected return. His evidence was that at 11.10 pm he saw Selewski's vehicle turn into the driveway at Lot 97 before stopping at the gate, which was locked. WS4 said Walpole drove the police vehicle quickly onto Castlereagh Road and stopped behind Selewski's vehicle. He said he and Mr Oswald got out of the car whilst Mr Walpole stayed with the vehicle. 92 WS4 appeared before the Royal Commission in January and February 1996 when allegations of criminal conduct were put to him. Subsequently he rolled over and in June 1996 gave a different version of events in relation to the Selewski arrest to that given by him at the trial. At the Royal Commission WS4 said he left the Castlereagh property heading for the Clarendon property with a female police officer (Detective Wendy Jean Haxton - nee Hounslow). He was driving a police vehicle in convoy with another vehicle driven by WS11 who was accompanied by another female police officer (Detective Potter). 93 On the way to Clarendon Mr Selewski was spotted driving his silver Holden Commodore and the police officers decided to effect an arrest. WS4 said the only other persons present at the time he and WS11 arrested Mr Selewski were Detective Potter and another policewoman he could not remember (Detective Haxton). WS4 answered in the affirmative to the question "Detective Karen Potter was physically present at the time Mr Selewski was arrested on the roadway?" Further, WS4 agreed that to the extent Detective Potter was present, she had relevant evidence to give about the fact of Mr Selewski's arrest. WS4 said neither Oswald nor Walpole were present at the time Mr Selewski was arrested on a dirt road somewhere between the Clarendon and Castlereagh properties. WS4 said he drove Mr Selewski's car back to the gate of the Castlereagh property and said he was not "100 per cent sure whether they [Oswald and Walpole] knew he [Selewski] was arrested". Neither the Commissioner nor counsel assisting the Commission questioned WS4 any further about the involvement of Detectives Oswald or Walpole in relation to the arrest of Mr Selewski. In particular, he was not asked how Mr Oswald's version of events (that he and WS4 got out of a police vehicle driven by Mr Walpole and arrested Mr Selewski) could be reconciled with his own account and he was not asked about Mr Walpole's evidence at the Selewski trial that he remained in the vehicle and took no part in any arrest of Mr Selewski at the gate. 94 The reason given by WS4 for lying about the time and place of arrest at Selewski's trial was in order to "make the case a bit stronger". WS11's evidence at Selewski trial and at Royal Commission 95 WS11 gave evidence at the Selewski trial. He told the Court he was part of the original entry team on the Castlereagh property and then decided to visit the Clarendon property. He said he left Lot 97 with Detectives Potter, Oswald and Walpole for that purpose but in separate vehicles. A person was arrested and WS11 and Detective Potter stayed at the Clarendon premises whereas Detectives Oswald and Walpole left after about 10-15 minutes. WS11 denied that Mr Selewski had been arrested by the time WS11 came to Clarendon and sat outside in a police car accompanied by Detective Potter. 96 In the Royal Commission WS11 changed the version he gave at the trial and corroborated WS4's version of the arrest of Selewski on a road between the two properties and confirmed he was present at the time. WS11 was not asked whether Detectives Walpole and Oswald were implicated in any conspiracy to give false evidence in relation to the Selewski arrest. WS11 was not present at the gate to Lot 97 when Mr Walpole said that WS4 and Mr Oswald arrested Mr Selewski. Potter's evidence at Royal Commission 97 Detective Senior Constable Karen Potter gave evidence to the Police Royal Commission. Detective Potter was involved in the Castlereagh and Clarendon operations. Her task was to search any women. Detective Potter said that at the Castlereagh property she did not enter the premises and stayed outside. She said she smelt a strong pungent odour. Detective Potter accompanied WS11 to the Clarendon property. On the way, Detective Potter said "at some point [on a dirt road that seemed to be in the middle of nowhere] we must have turned around and gone back to a location where there was a car". This was the point where Mr Selewski insisted he was arrested and, after rolling over, where WS4 and WS11 said the arrest took place. Detective Potter said there were a number of police present. She said WS11 got out of the car and spoke to WS4 then returned shortly after. Detective Potter said she did not get out of the car, did not ask, and was not advised by, any person about what was occurring. 98 Detective Potter said she and WS11 then travelled to Clarendon. She said when they pulled into the driveway Detectives Oswald and Walpole were in a vehicle behind them. Detective Potter made no mention of Detectives Oswald and Walpole being at the scene on the dirt road when WS11 got out of the car to speak with WS4. Detective Potter was not aware that Mr Selewski had been arrested on the dirt road. 99 When asked what Detectives Oswald and Walpole did at the Clarendon property, Detective Potter said, "Well, it's my belief that, because there was only one person there, there was no need for them to stay. I mean, that's just my belief in the matter. I think they were there in case there was more than one person in the house." 100 Ms Potter's evidence was largely consistent with that she gave at Mr Selewski's trial. Her notes were in evidence at the trial but they made no reference to the vehicle that was stopped on the dirt road. At the Police Royal Commission, Ms Potter revealed she had not completed those notes prior to going on leave two days after the evening in question but, upon return from leave, had copied the notes made by WS11. She had also prepared her statement of evidence by reference to that made by WS11. Detective Potter could not explain why she may have left a blank page in her duty book for 10 December 1990 and not 11 December or why her duty book entry suggested she actually took part in the execution of the search warrant at the Castlereagh property when that was not the case. Haxton's evidence at Royal Commission 101 Ms Haxton also gave evidence to the Police Royal Commission. She recalled that after leaving the Castlereagh property to go somewhere else [she could not recall where] she was in a police vehicle that stopped on a dirt road "in the middle of nowhere". She recalled a car being intercepted and a person being apprehended. The person was placed in the car with her. Ms Haxton vaguely recalled going to another house and waiting in the car with the person who had been apprehended. 102 Ms Haxton had prepared notes of her involvement in the arrest of Mr Selewski and at the Police Royal Commission gave evidence they had been `written out of the brief' and later shredded. It would appear that WS11 had wanted Ms Haxton to agree to a statement about the location of the arrest of Mr Selewski that was inconsistent with her notes. She refused and WS11 asked her for the notes. Instead of giving them to him she shredded the notes in his presence and he seemed "satisfied" with that. Neither Mr Oswald nor Mr Walpole was implicated in the note shredding by either Ms Haxton or WS11. WS14's evidence at Royal Commission 103 WS14 was another corrupt police officer that rolled over. He was involved in the Castlereagh operation and his evidence to the Police Royal Commission was that the story that Selewski was arrested at the gate of Lot 97 was false and that the arrest took place on a dirt road between the Castlereagh property and the Clarendon property and "some miles" away from Lot 97. WS14 said that the reason the story about the arrest at the gate was concocted was so that the "prosecution could proceed showing a close association between Mr Selewski and the amphetamine manufacturing plant." Selewski's evidence at Royal Commission 104 Mr Selewski gave evidence to the Police Royal Commission in June 1996. His evidence was consistent with that he gave at his trial. Mr Selewski said he was arrested a short distance from the Clarendon property by WS4 and WS11 and not at the gate of Lot 97. He said that following his arrest he was taken in a police car to the Clarendon property accompanied by Detective "Ann Potter" who asked him a number of questions and took notes. He said that at the Clarendon property Detective Potter left the car and went inside the house and another police officer took her place. Mr Selewski said that after about 10-15 minutes he was placed in another police car and driven back to the Castlereagh property. Mr Selewski said someone driving his son's car, a silver Commodore, followed the police car. Mr Selewski said that the gate at Lot 97 had been knocked down, the vehicle he was in did not pause at the gate and "Drove straight down the driveway to the back of the house." 105 Mr Selewski made no mention of either Mr Oswald or Mr Walpole and, indeed, he was asked no questions about those two officers. Oswald's evidence at Selewski trial and at Royal Commission 106 As I have already stated, on the night of 10 December 1990 Mr Walpole was accompanied by Mr Oswald. Mr Oswald gave evidence at Mr Selewski's trial that was consistent with the evidence of Mr Walpole. Mr Oswald said in his evidence at the trial that after following Mr Selewski's car into the driveway of Lot 97 he got out of the car with WS4. WS4 had a conversation with Mr Selewski and elicited his name, address and date of birth. WS4 searched Mr Selewski and found two keys in his pocket. One of the keys was used to open the padlock on the gate. Mr Oswald said he then drove the silver Commodore onto the premises of Lot 97. I note that in his evidence to the Police Royal Commission, WS4 said that when he got to the gate it was padlocked. 107 Mr Oswald largely repeated his trial evidence before the Police Royal Commission except that he said that at the gate Mr Walpole also got out of the car. Walpole's evidence at Royal Commission 108 Mr Walpole's evidence at the Police Royal Commission was given on 13 June 1996 and followed that of Oswald, Potter, Haxton, Selewski and WS11. Mr Walpole's evidence was consistent with that he gave at the Selewski trial. It was put to Mr Walpole that West Wilchard Street, where he said he and Mr Oswald took up their observation, was one kilometre from the entrance to Lot 97 on Castlereagh Road. That is not the case. As I earlier mentioned the evidence in these proceedings, which I accept, was that the distance was 400 metres. 109 Mr Walpole was asked questions about his failure to complete entries in his duty book in relation to 10 December 1990 and he indicated it was on oversight on his part. It was also put to Mr Walpole that the evidence he gave in the Selewski trial was false. It would appear that the basis of that proposition was that Mr Walpole's account of events on 10 December 1990 sat "somewhat uncomfortably with the account of other witnesses". Section 181B process 110 On 23 July 1996 Mr Walpole was placed on restricted duties as a result of his evidence to the Police Royal Commission. Mr Oswald was suspended from duty on 15 July 1996. 111 On 26 July 1996 Assistant Commissioner Schuberg received advice from Mr P S Hastings QC regarding Mr Walpole's involvement in the Selewski arrest. Relying on evidence given by the corrupt police officers, Mr Selewski, Ms Haxton and Detective Potter, Mr Hastings stated: The result is that Walpole clearly has: (a) participated in a conspiracy to pervert the course of justice by fabricating evidence against Selewski; (b) given false evidence in court proceedings; (c) persisted with a false version of the facts in his evidence to the Royal Commission. 112 Mr Hastings recommended that it was appropriate "to issue a Notice under Section 181B of the Police Service Act." 113 In the same letter Mr Hastings referred to the "Denney matter". In this regard, he stated: At page 21277 of the Royal Commission transcript [WS14] gave evidence that Walpole had assaulted a man named Denney during a drug operation at Mudgee on 17 May 1989 by striking him with a rifle butt to the face, causing a laceration and fracture of the cheek bone. There was no other evidence on this topic and Walpole was not questioned about it at the Commission. On its own the uncorroborated evidence of [WS14], an admitted liar and criminal with little credibility, would be insufficient basis for the Commissioner to form the opinion required by s 181B of the Act in respect of this incident. However, given the other information regarding the Selewski matter, it is appropriate to take it into account. It will be necessary to return to the Denney matter shortly but I fail to understand the basis upon which Mr Hastings could suggest that the Acting Commissioner could take into account a matter completely separate to the Selewski matter and in respect of which there was the barest of allegations by an "admitted liar". 114 On 8 August 1996 Mr Walpole was served with a notice under s 181B of the Police Service Act by Acting Commissioner N A Taylor. Section 181B provided: 181B. Dismissal of police officers - information arising out of Police Royal Commission (1) The Commissioner may, by order in writing, dismiss a police officer from the Police Service if the Commissioner has formed the opinion, based on information arising out of the Police Royal Commission, that the officer: (a) has engaged in corrupt conduct (or any other conduct constituting an indictable offence), and (b) is no longer a fit and proper person to hold a position into the Police Service. (2) The dismissal takes effect when the order is made. (3) Before deciding whether to dismiss a police officer under this section, the Commissioner must: (a) give the officer a notice setting out the grounds on which the Commissioner has formed the opinion referred to in subsection (1), and (b) give the officer an opportunity to make a written submission to the Commissioner within 21 days of receiving the notice, and (c) take into consideration any such submission received within that period. (4) Section 182 (Appeal to GREAT against disciplinary decision of Commissioner) does not apply to or in respect of the decision by the Commissioner to dismiss a police officer under this section. (5) Without limiting the generality of section 218 ( Industrial Relations Act 1991 not affected), nothing in this section affects Part 8 (Unfair dismissals) of Chapter 3 of the Industrial Relations Act 1991. 115 The grounds relied upon in the notice were as follows: 1 Evidence in the Royal Commission that you conspired with other officers to pervert the course of justice in relation to the arrest of George Selewski in December 1990 in that you agreed to falsely state that you and [WS4] apprehended Selewski outside premises at lot 97 Castlereagh Road Castlereagh on 10 December 1990 knowing that statement to be false. 2 Evidence in the Royal Commission that you committed perjury in your evidence at the trial of George Selewski and others in that you gave evidence that you and [WS4] apprehended Selewski outside premises at lot 97 Castlereagh Road Castlereagh on 10 December 1990 knowing such evidence to be false. 3 Evidence that you committed perjury in your evidence before the Royal Commission into the NSW Police Service on 13 June 1996 in that you gave evidence that you and [WS4] apprehended Selewski outside premises at lot 97 Castlereagh Road Castlereagh on 10 December 1990 knowing such evidence to be false. PARTICULARS Evidence of [WS4] (transcript pages 26640 to 26658); Evidence of George Selewski (transcript pages 26678 to 26704); Evidence of [WS11] (transcript pages 26887 to 26925); Evidence of Constable Karen Leanne Potter (transcript pages 26887 to 26925); Evidence of Wendy Jean Hounslow (transcript pages 26870 to 26880); Evidence of Sergeant Wayne John Walpole (transcript pages 26955 to 26971). 116 It will be noted that the notice contained no reference to the Denney matter nor does it refer to the evidence of WS14 which, as I will show later, Mr Hastings stated in his advice constituted "the primary evidence of Walpole's misconduct". I also note a notice similar to that served on Mr Walpole was served on Mr Oswald. 117 On 27 August 1996 Mr Walpole's solicitors, Oates & Smith, made a response to the s 181B notice denying any wrongdoing. In the submission it was contended: § The Acting Commissioner had accepted the uncorroborated evidence of corrupt criminals, in particular WS4. § Mr Walpole had an unblemished record. § Mr Walpole had been denied procedural fairness because he had not been allowed in the Royal Commission proceedings to test the evidence against him. 118 Attached to the solicitor's submission was a further 8-page submission prepared by Mr Walpole. In it he gave his version of events on 10 December 1990. The main points made in the submission were as follows: · There was no evidence or information given in the Royal Commission to show Mr Walpole was aware of any wrongdoing on the night of 10 December 1990. · WS11 could not remember Mr Walpole being involved in the operation let alone involved in any conspiracy. · WS11 stated Mr Walpole was not present at the arrest of Mr Selewski on the dirt road. · WS4 said the same as WS 11 and added further that he did not know whether Mr Oswald or Mr Walpole knew of the conspiracy. · Ms Haxton said she was at the first arrest and whilst she named the police who were present did not name Mr Walpole. · WS14 did not identify Mr Walpole as having any involvement. · Mr Walpole drove a police car in behind a silver Commodore at the gate to the Castlereagh property. No person disputed that fact. · No person gave evidence that they had discussed with Mr Walpole anything regarding the alleged arrest location. 119 On 28 August 1996 Mr Hastings wrote a memo to the Acting Commissioner, Mr Taylor, regarding Mr Walpole's submission in reply to the notice. The analysis of Mr Walpole's submission was quite limited and at least in one respect wrong where it asserted Walpole and Oswald were parked approximately one kilometre from the driveway to Lot 97. The assertion by Mr Hastings that Mr Walpole was entitled to cross-examine in the Royal Commission proceedings is not the whole story. There were quite limited rights in this respect and the Royal Commissioner made it clear that the usual rules applying to jury trials did not apply, including the rules in Jones v Dunkel (1959) 101 CLR 298 and Brown v Dunn (1894) 6 R 67 (HL). 120 In any event, Mr Hastings recommended that the "dismissal of Walpole under s 181B is appropriate". That this position was accepted by the Acting Commissioner is evident in the fact that in a letter dated 29 August 1996, one day after the date of Mr Hastings' letter, the Acting Commissioner advised Mr Walpole's solicitors as follows: I refer to your letter of 27 August 1996. I have taken into account everything that you have put on behalf of your client. Having done so, I have decided that I will dismiss your client as from today. 121 Mr Oswald was also removed from the Police Service on 29 August 1996. Walpole proceedings in Industrial Relations Commission - 1997 122 In September 1996 Mr Walpole commenced proceedings in the Industrial Relations Commission seeking relief on the ground that his removal was harsh, unjust and unreasonable. On 20 February 1997 the matter came before Fisher P. Senior counsel for the Commissioner, Mr Michael Finnane, discovered, or he was advised, that the notice under s 181B was defective in that it was alleged Mr Walpole and WS4 arrested Mr Selewski when there was no such evidence in any proceedings that that was the case. Mr Finnane took the view that as the charges against Mr Walpole were incorrectly laid the matter should not proceed. Consequently, the parties agreed on terms of settlement reinstating Mr Walpole from 29 August 1996 with full entitlements. Suspension of Walpole 123 On 21 February 1997 Mr Walpole attempted to return to work but was told he could not do so and was advised he would be contacted shortly. In a letter dated 25 February 1997 Mr Walpole was advised as follows: As a result of the decision of the Industrial Relations Commission in respect to an appeal against your dismissal from the NSW Police Service, action has been taken to reinstate you to the Service, effective as from 29 August 1996. However, pending a full review of the determination of the Industrial Relations Commission and evidence before the Royal Commission, in that you were implicated in corruption, assaults and indictable offences, you are hereby suspended with pay until further notice. During this time consideration is to be given to possible disciplinary action being taken against you, pursuant to s 181D of the Police Service Act. 124 The letter to Mr Walpole reflected an increasing, and one must say somewhat depressing, trend towards error on the part of the Police Service in respect of Mr Walpole. The reason why he had been reinstated was because senior counsel for the Acting Commissioner of Police was forced to concede the charges against Mr Walpole had been incorrectly laid by the Acting Commissioner, not because of any determination by the Commission. There was nothing to review about any determination by the Commission because no determination had been made. Moreover, the reference to "assaults" (and I note the wrong use of the plural) was undoubtedly a reference to the Denney matter in respect of which Mr Walpole had been given no notice. 125 The reference in the letter to s 181D rather than s 181B derives from the fact that in December 1996 the Police Service Act was amended by the Police Legislation Further Amendment Act 1996 to repeal s 181B and to insert Division 1B incorporating provisions in s 181D for the summary removal of police officers in whom the Commissioner of Police did not have confidence. In relation to the new provisions, the Minister's Second Reading speech stated as follows: Last year the Government acted promptly to ensure that the corrupt officers being exposed by the Royal Commission could be quickly expelled from the Police Service. It did this by introducing the summary dismissal provisions of section 181B. That provision has served its purpose and a number of officers have been dismissed under it. However, it takes little insight to realise that any officer whose integrity is called into serious doubt by the ongoing probing of the royal commission will be required to show cause why the commissioner should continue to have confidence in him. Recourse to the summary dismissal provisions will therefore not be necessary and section 181B can be repealed. 126 However, at the same time the legislation removed any industrial rights police officers had enjoyed to challenge their removal and instead s 181D provided only limited rights of review based on administrative law principles as follows: (6) The Supreme Court has jurisdiction to review a decision or order of the Commissioner to remove a police officer under this section. Any such review is to be conducted in accordance with the administrative law principles applicable to the review of decisions that turn on the opinion of a decision-maker. (7) Except as provided by subsection (6): (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes GREAT and the Industrial Relations Commission. 127 Thus, at the time Mr Walpole received the letter from the Police Service suspending him on 25 February 1997, s 181B had been repealed and s 181D applied. Section 181D Process 128 On 20 and 24 April 1997 respectively, the Commander of Internal Affairs, M J Brammer, and the Executive Director of Human Resources, Assistant Commissioner C J Nixon, offered their view, presumably to Commissioner Ryan, in respect of Mr Walpole. 129 Commander Brammer stated: Given the Sergeant's record and the most serious allegations raised at the Royal Commission, which are corroborated by other officers, he has no future in the Police Service. His credibility as an operational officer is negligible. There are no mitigating considerations that precludes him from consideration for dismissal, even despite the observations of Inspector Hagan. Given the horrendous behaviour of police at the North West Region Crime Squad, particularly those involved in the incidents at the Royal Commission with the Sergeant, the balance of probability is that the Sergeant behaved according to the allegations. Recommend the loss of confidence process be initiated. 130 Assistant Commissioner Nixon wrote: The evidence before the Commission is sufficient to undermine the credibility of this officer to continue as a police officer. His history of complaints during his career form a pattern similar to that of other disgraced officers. Strongly supported. 131 What information these two officers were provided with is not entirely clear but according to a report by Detective Superintendent Seddon, who carried out a review in August 2000 into the circumstances surrounding the resignation of Mr Walpole, the information provided consisted merely of "20 internal memorandums most of which repeat themselves and all relying upon the same basically flawed information supplied by apparently inattentive counsel engaged to represent the Service." I note that Mr Seddon was highly critical of the review and dismissal process in his 57-page report in which he recommended the reinstatement of Mr Walpole with no loss of benefits. Mr Seddon's recommendation appears, however, to have been eclipsed by the later Review and Advice of Mr Skinner of counsel in July 2002 who disagreed with Mr Seddon's conclusions and expressed the opinion there was "a sound substantive basis for Acting Commissioner Taylor to dismiss Mr Walpole in August 1996 under s 181B of the Act, and for Commissioner Ryan to not have confidence in his suitability to continue as a police officer in May 1997 under s 181D of the Act." 132 Returning to the statements of M J Brammer and Assistant Commissioner Nixon, both refer to his record, which is in evidence in these proceedings. It contains four commendations and records that no complaint has ever been substantiated against Mr Walpole. How they came to an adverse view about Mr Walpole based on his record is impossible to understand. 133 It would appear that neither of these two officers read the evidence in the Royal Commission but, nevertheless, both were able to arrive at the view that it provided a basis for Mr Walpole's removal. The reference to Mr Brammer to the corroboration of "other officers" must refer to the evidence of WS4, WS11, WS14, Detective Potter and Ms Haxton. The first three were self-confessed perjurers who had engaged in corrupt and criminal activity during their police career. The evidence of Detective Potter and Ms Haxton that could be said to implicate Mr Walpole in any conspiracy is at best oblique and at worst provides no basis at all. 134 Moreover, both Commander Brammer and Assistant Commissioner Nixon appear to have relied on a document entitled "Issues Raised At The Royal Commission". The document is almost wholly wrong. It stated that Mr Walpole had given evidence in the Royal Commission that he and WS4 apprehended Mr Selewski outside the Castlereagh property and that he took part in the arrest. The evidence was that it was Mr Oswald and WS4 who effected the arrest. 135 On or about 1 May 1997, Mr Walpole received a notice under s 181D(3)(a) of the Police Service Act signed by the new Commissioner of Police, P J Ryan. Incredibly, the new notice repeated the same errors in the earlier notice under s 181B that led Mr Finnane QC to abandon the charges. Additionally, however, a further ground had been inserted into the notice as follows: Evidence given at the Royal Commission that you assaulted Ross Graham Denney, a person arrested during an operation at Mudgee on 17 May 1989, by striking him with the butt of a shotgun to the head, causing a laceration and a fractured cheekbone. 136 It is unnecessary to digress into the detail of the Denney charge because the respondent on these proceedings placed no reliance on it and understandably so because there was no proper basis upon which the allegation relating to Denney should have been made. A clear inference is available that it was simply thrown in by the Commissioner for good measure without any proper consideration as to its merits based on very limited advice by Mr Hastings, advice that could not have satisfied the Commissioner that there was substance to the allegation. Mr P Skinner of counsel acknowledged in his Review and Advice to the Commissioner of Police dated 30 July 2002 regarding the Walpole matter, it would have been unfair to Mr Walpole to hold the Denney matter against him. I consider that to have been an understatement. Resignation of Walpole 137 In relation to the serving upon him of the second notice, Mr Walpole said in his evidence: I was again forced by the NSW Police to consider some form of legal challenge to the Commissioner's decision to remove me from the NSW Police. After having been served with the second Show Cause Notice, I sought advice from the Association and my then solicitors, Oates & Smith. I was informed that, due to a change in the legislation, the only form of review available at that time was a form of judicial review on the process followed by the Commissioner. I was advised that the Supreme Court of New South Wales didn't look at the merits of the decision and that I couldn't go back to the Industrial Relations Commission for a merits review. There had been a change to the legislation since my first removal by the Acting Commissioner. I was advised by my then solicitors that if it came to challenging the Commissioner's decision to remove me in the Supreme Court, I would not have any grounds to challenge the decision on process, and that I simply "didn't have anywhere to go". From the fact that I was served with a second Show Cause Notice with a duplication of allegations contained in the first Show Cause Notice, it was apparent to me that the Commissioner would again remove me from the NSW Police no matter what happened or what I said. The Commissioner appeared to me to ignore the settlement reached by the then Acting Commissioner and the NSW Police in the Industrial Relations Commission when my case was previously before Justice Fisher. I had no reason to believe that if I were to again make to the Commissioner the detailed submissions that I had initially supplied in relation to the first Show Cause Notice … that I would not be removed. The combination of the circumstances in paragraphs 35, 36 and 37 of this affidavit led me to the belief that I was left with no alternative other than to tender my resignation from the NSW Police. I didn't see I had any other choice other than wait to be removed. On or about 26 May 1997, I attended the North West Crime Squad Command in Parramatta to complete the resignation letter. I went and typed it up and then handed it to then Commander Howe. I never received any response to my letter of resignation. The first I knew about the acceptance of my resignation was when the NSW Police stopped paying me. 138 In cross examination on this issue Mr Walpole stated: I resigned because I believed Commissioner Ryan was going to dismiss me, and I had well founded rights to believe that. It wasn't as if I was a police officer like anyone else at work on that day when I received the 181 D notice, there was a bit of history there. I had already previously been suspended, been issued with a 181 B, responded to a 181 B, it was unsuccessful. I then come to the Industrial Court, and I was reinstated and then I went to work the next day, was given no reason and then not allowed to attend the work which this Commission allowed me to go back to. And it wasn't until a few months later then I received a notice. So if I had been a normal officer that hadn't that history I may well have responded to a 181 D. But I was believed I was going to be dismissed by the Commissioner. 139 In his resignation letter, dated 26 May 1997, Mr Walpole stated: It is with great sadness that I find myself in the position where I feel I have no alternative other than to tender my resignation from the New South Wales Police Service. I was reinstated into the Police Service after the Service conceded at the Industrial Court that, certain allegations against me were untrue. I have received enormous support from senior members of the service and senior members of the judiciary in relation to my matter, however after receiving a notice under Section 181d (sic) raising the same issues as in the failed 181b (sic) and in the absence of being able to return to the Industrial Court, I, in accordance with Service policy give four weeks notice. My last day of service being Tuesday the 24th of June, 1997. I take this opportunity to wish the Commissioner and the Service, a successful future. Oswald proceedings in Industrial Relations Commission 140 The application for relief by Mr Oswald took a different course. His claim came before Fisher P who, on 10 July 1997, dismissed Mr Oswald's application under s 84 of the Industrial Relations Act. That decision was appealed and in Oswald v New South Wales Police Service (1999) 90 IR 42, a decision given on 11 March 1999, the Full Bench of the Commission upheld the appeal and reinstated Mr Oswald from the date he was dismissed with no loss of benefits. Mr Oswald now holds the substantive rank of Inspector in the NSW Police. 141 In upholding the appeal the Full Bench stated: In this case, the competing evidence given before the Police Royal Commission by the appellant and Mr Walpole, on the one hand, and by Mr Selewski, WS4 and WS11, on the other, gave rise to a need for the Acting Commissioner to consider which version of events was to be preferred. The evidence given by Ms Haxton and Ms Potter was also relevant. Of necessity, that consideration would arise in a context where WS4 and WS11, admittedly corrupt police officers, had `rolled over' before the Police Royal Commission thereby admitting they had earlier perjured themselves at the criminal trial. The relevant circumstances, on our approach, requiring the Acting Commissioner's consideration appeared then to include: (1) The appellant was a police officer of seemingly unblemished reputation, other than in relation to the arrest of Mr Selewski. Prior to dismissal he had had some 15 years' service in the Police Service, the last 9 years as a Detective Senior Constable and Detective Sergeant with the Armed Hold Up Unit of the Major Crime Squad North West. Prior to the night of the arrest of Mr Selewski, he had had no involvement with the police operation which had led to that arrest. It was being conducted by the Drug Unit. After the conclusion of his daily duties on the evening in question, the appellant had been recalled to duty from his home to assist in the operation. Even after their `rollovers', both WS4 and WS11 gave evidence that the appellant had not been involved in any discussions or arrangements with them as to the alterations which they had allegedly made in their statements and evidence as to the circumstances of the arrest. The appellant was not identified by any witness as having been present when the earlier arrest was made. (We observe that while other evidence WS4 and WS11 had given had been accepted by the Acting Commissioner, this evidence apparently was not accepted as being true.) (2) WS4 and WS11 altered their stories to corroborate Mr Selewski's version of events after they had been confronted with evidence of their perjury in relation to other matters about which they had given evidence before the Police Royal Commission. Both the appellant and Mr Walpole always adhered to their original accounts. Ms Potter adhered to her account of events, as did Ms Haxton. Neither gave evidence that the appellant had been present when Mr Selewski was arrested on the road. Ms Haxton had not given evidence at the criminal trial about the circumstances of the arrest but revealed in the Police Royal Commission how her notes were shredded before the trial. At the Police Royal Commission, Ms Potter persisted with her account that she had not alighted from the police vehicle when Mr Selewski had apparently been arrested on the road, had not seen him being arrested, had not participated in the arrest or spoken to him. She did reveal she had copied her notes and statement from those prepared by WS11. (3) On all versions of the arrest, however, it was apparent that it had taken place at night, in a rural area, and on an unlit road. (4) At least three possibilities arose from the evidence which emerged from the Police Royal Commission. Firstly, that the appellant and Mr Walpole had perjured themselves at Mr Selewski's criminal trial and had adhered to their false story because to do otherwise would have revealed their perjury before the Police Royal Commission (This was the conclusion reached by Fisher P). Secondly, that WS4 and WS11 had initially not lied at Mr Selewski's trial or at the Police Royal Commission but, after rolling over, had altered their evidence to support Mr Selewski's version of events. They had then perjured themselves in the evidence which they gave before the Police Royal Commission, so assisting Mr Selewski to achieve acquittal from a criminal charge otherwise properly made out against him; thereby, and wrongly, the appellant and Mr Walpole became implicated in their corrupt activities. Thirdly, that the actual circumstances were such that, unbeknownst to the appellant and Mr Walpole, WS4 and WS11 had already arrested Mr Selewski elsewhere on the night in question, but had so arranged matters with Ms Haxton and Ms Potter that the appellant and Mr Walpole, honestly but wrongly, believed he had been arrested in the way in which they had given evidence at the trial and before the Police Royal Commission. Thus, while WS4 and WS11 had acted to improve the case against Selewski, the appellant and Mr Walpole had not. In Bigg (No 2) the Full Bench observed (at pp 459-460) that in proceedings brought in relation to alleged unfair dismissals under s181B: - In coming to an opinion under s181B, the Police Commissioner would have to observe and, if doubt were raised in proceedings under s246 of the 1991 Act, demonstrate that he had met the obligation to act in a manner which allowed no allegation of an uninformed decision to be founded. Failure to do so would allow the Industrial Relations Commission to intervene, if it took the view that the dismissal was harsh, unreasonable and unjust. - Were the material in the written submission forwarded by the police officer in response to the s181B notice to demonstrate factual and legal explanations which would call the opinion formed by the Police Commissioner into doubt when fairly considered, or were the officer to call other evidence before the Industrial Relations Commission which called the opinion formed into such doubt, then such circumstances would allow the Industrial Relations Commission to intervene, if it took the view that the dismissal was harsh, unreasonable and unjust. These issues arise squarely in this case, particularly in relation to the question of reinstatement. We observe that the fact a police officer has been dismissed under s181B does not of itself preclude the possibility the police officer will later be reinstated, including, in an appropriate case, as the result of an order of reinstatement made by the Commission in proceedings such as these. Here, we think it undoubted that the conclusion the appellant's dismissal was harsh, unreasonable and unjust must follow from the inadequate approach adopted by the Acting Commissioner in the s181B process to the consideration of the information arising from the Police Royal Commission. We so find. That approach clearly led, in our view, to a relevantly uninformed decision calling for explanation by the respondent to resolve doubt. That explanation was not given. Fisher P accepted the submissions advanced by the respondent below that the evidence given before the Police Royal Commission by Selewski, WS4 and WS11 after they had `rolled over' should be preferred to the version of events consistently put forward by the appellant in statements, at the criminal trial, before the Police Royal Commission and in the proceedings below. In coming to that view, Fisher P, like the Acting Commissioner, made no reference to nor appeared to take any account of the corroborative evidence which Mr Walpole had given at the criminal trial, before the Police Royal Commission and in these proceedings where, we note, he was not required for cross-examination by the respondent. In adopting that approach, we consider Fisher P fell into error. Proper account should have been taken not only of the corroborating evidence given by Mr Walpole but also of the fact he was not required by the respondent for cross-examination. This was relevant also to the findings made by Fisher P in connection with the matter of the appellant's alleged perjury. We have no doubt his Honour was correct in observing that a police officer who revises and improves evidence in order to make a case against a suspected criminal basically irrefutable commits perjury; we concur that such conduct will not be condoned by the Commission. Nevertheless, in so far as such a finding was made against the appellant without apparent consideration of the corroborating evidence of Mr Walpole, his Honour clearly erred. We interpose to observe that we do not overlook that, while presumably unknown to Fisher P, it was announced at the hearing of the appeal that Mr Walpole, who like the appellant had come to the attention of the Police Royal Commission in connection with the Selewski matter and had been dismissed under s181B, had his own s 84 claim settled by reinstatement. The conclusion that the appellant had perjured himself at the Selewski trial by participating in a cover up as to the proper circumstances of the arrest can only have arisen from an acceptance by the Acting Commissioner that Selewski, WS4, WS11, Ms Potter and Ms Haxton were all telling the truth as to the real circumstances of the arrest but were lying as to the appellant's involvement. In our view, that approach challenges credibility and we reject it. Campaign by Walpole and Association for reinstatement 142 In the period he had been suspended and following his resignation, Mr Walpole had gained employment with a firm engaged in the business of making and supplying fresh and frozen baked products. Mr Walpole had commenced as a casual driver but at the time he gave evidence in these proceedings he had risen to the position of State Sales Manager, a senior role in the company. I note the Mr Walpole's salary in his private sector employment is greater than that he would receive as a Detective Sergeant. 143 Following his resignation, and in the belief a "merit review" was not available to him because of the terms of s 181D of the Police Service Act, Mr Walpole began a prolonged campaign to achieve reinstatement in the Police Service. This involved writing letters to the Police Commissioner, the Minister for Police, the Attorney General and Mr Walpole's local Member of Parliament pleading his case. 144 Mr Walpole maintained his letter writing campaign throughout 1998 and into 1999. Mr Walpole deposed that: In March 1999, I received a telephone call from Mr Stephen Oswald ( Oswald ). He informed me that he had been successful in an appeal to the Full Bench of the Industrial Relations Commission and that he was to be reinstated to the NSW Police shortly thereafter. I immediately rang my former solicitor, Mr Oates of Oates & Smith to discuss my situation. Shortly after I had spoken to Mr Oates, I received a telephone call from a fellow at the Association by the name of Mr Peter Remfrey. I had not met or spoken to Mr Remfrey before hand. He asked me to come in to "have a chat" about my matter. I went and saw him a couple of days thereafter and from that point on, the Association and Mr Remfrey have campaigned on my behalf to have me reinstated. We have continued to seek some form of independent merit review of my forced resignation in 1997. 145 Mr Remfrey gave evidence in the proceedings. Mr Remfrey has been employed by the Police Association for approximately 22 years. He was appointed Secretary of the Association in 1997 and remains in that position. In his affidavit he deposed: After the decision in the Oswald matter was delivered, I discussed Mr Oswald's situation with one of the solicitors the Association regularly instructs, Mr Eric Oates of Oates & Smith. As a result of the discussion I had with Mr Oates I decided I would meet Mr Walpole. I met Walpole for the first time some time in early 1999 and requested that he meet with me to discuss his matter. I was satisfied that he was genuine in his desire to seek justice and to return to active policing. Mr Walpole informed me of various attempts he had made to try and have the Commissioner of Police, the Minister for Police, the Ombudsman's office, and even the Attorney General of NSW review the circumstances of his matter in order that he may be reinstated. I subsequently met with Walpole and his wife, also a member of the Association on 1 July 1999. I asked him to provide names from those police and others that supported his version of events. I wrote to those whom he nominated in July 1999 and sought statements in the form of statutory declarations. All those nominated indicated without hesitation that they were prepared to and ultimately did provide sworn statements supporting Mr Walpole. It was apparent to me at that time, having discussed the matter with Walpole, reviewed the decision of the Full Bench in Oswald, having made enquiries of my own and from having reviewed the relevant transcripts of the Royal Commission into the New South Wales Police Service conducted by the Hon. James Wood in 1996, and receiving the statutory declarations that Walpole had suffered what I considered to be a terrible injustice. I formed the view that Walpole deserved the opportunity to have his case reviewed on merit and that the Association should support him. 146 Mr Remfrey described his quite remarkable efforts on behalf of Mr Walpole, especially with the Minister for Police and the Commissioner for Police. Having had discussions with the Commissioner in April 2000 Mr Remfrey stated: Around 16 May 2000 I received a reply from the Commissioner of Police in relation to the matter, indicating that the submission was going to be referred to then Superintendent Ken Seddon for review … I subsequently met Mr Seddon on a number of occasions and provided him with access to any material the Association held that would assist him in his review. This included Royal Commission transcripts. In approximately September of 2000 Seddon provided me a copy of the report … The report was overwhelmingly in favour of Mr. Walpole and recommended his reinstatement. I thought at that time that we would now be able to have Walpole to be returned to his position. However this was not the case. I contacted the Court and Legal Services branch to discuss Mr Walpole's matter following the Seddon Report and was informed by Mr Redfern that the Commissioner was in the process of obtaining further advice from Counsel. I contacted Mr. Redfern in relation to the matter on several occasions over the coming months to enquire what was happening in relation to Mr. Walpole's matter. On 26 December 2000 I received a letter from Mr. Redfern informing me that Counsel's advice had been obtained, that I was not to be informed of "the nature or content of that advice" the advice of counsel would not be provided to me. The letter informed me that the advice was to be provided to the Commissioner of Police that day … I then received a letter from the Commissioner of Police dated 19 January 2001 refusing reinstatement of Walpole and refusing to participate in a proposed private arbitration …This was despite the fact that the Seddon Report was comprehensive and examined all the relevant factual material closely. On 24 January 2001 I wrote to the Commissioner requesting a copy of the advice … 147 Mr Remfrey continued with his efforts on behalf of Mr Walpole, including approaches to the Police Integrity Commission and the Ombudsman's Office. Further, Mr Remfrey stated: Following the appointment of the current Commissioner of Police, Mr. Ken Moroney, to the position of Commissioner, in approximately April 2002, I took the opportunity to seek a further review of the Walpole matter. In early May 2002 I received a letter of reply from Mr. Michael Holmes, then the General Manager of Court and Legal Services, indicating that Counsel was going to be instructed to undertake a "legal review" of the circumstances surrounding Walpole's forced resignation … I discussed the matter briefly with Mr. Edmund Lynch of Court and Legal Services and with Walpole. As a result of concerns expressed by Walpole, I forwarded a letter to Mr. Holmes on 20 May 2002. Both Walpole and I had real concerns about the nature of the "legal review" that was sought … A copy of the reply I received from Mr. Holmes, dated 22 May 2002, is also attached at … I was in regular contact with Court and Legal Services in relation to the Walpole matter at that time. A copy of correspondence from Mr. Lynch of that office dated 17 July 2002 is included in the documents … On 19 August 2002 I received a telephone call from Commissioner Moroney, indicating that he had received Counsel's advice and that he would not consider reinstating Mr. Walpole. I requested a copy of that advice and I recall the Commissioner agreed that it would be provided . On 20 August 2002 I received a letter from Mr. Holmes indicating that Mr. Skinner's advice had been provided to the Commissioner and that NSW Police considered that Walpole "did not have any rights for redress against the Commissioner or the NSW Police". A copy of that letter is attached … On 23 August 2002 I wrote to Commissioner Moroney requesting a copy of the advice of Mr. Skinner. On 2 September 2002 I received a reply from Mr. Holmes, refusing a copy of the advice. After receipt of Mr. Holmes' letter of 2 September I contacted the Commissioner's office and again requested the advice. On 3 September 2002 I received a further letter from Mr. Holmes, enclosing a copy of the advice and indicating that "no further review would be undertaken". Copies of this correspondence and the advice are attached … I provided a copy of the advice to Walpole for his consideration shortly thereafter. The review conducted and the conclusions reached by Mr. Skinner were in my view not only inadequate but entirely unsustainable. In a further effort to have the matter be the subject of a proper hearing and review before an independent, private arbitrator, I again wrote to the Minister of Police (on 7 January 2003) requesting an opportunity for Walpole's matter to be heard by a private arbitrator. A copy of this letter and the analysis of it by Walpole is attached … At a deputation with the Commissioner of Police on 2 April 2003 I again raised the Walpole matter and sought to have the appointment of an independent arbitrator to deal with the matter on a confidential basis, and without the matter being considered a "precedent" to be used for other persons. As I have always maintained in my lobbying with the various Commissioner's of Police and Police Minister's, Walpole's circumstances are unjust and unique. They warrant some special dispensation. The Commissioner again refused to have the matter reopened. A copy of a letter dated 28 March 2003 confirming that the request in our letter of 7 January had been referred to the Commissioner of Police and that our requests for an independent arbitrator to hear the matter were again refused. A copy of this letter is attached … There was nowhere else the Association could turn and so on 1 July 2004, the Association filed a dispute with the Industrial Registrar giving rise to these proceedings. 148 The reason why the Seddon recommendation of reinstatement was not implemented would appear to have arisen from the circumstances described by Mr Remfrey in his answers in cross-examination: [T]he tragedy, again, for Mr Walpole was that Mr Seddon and the Commissioner had a falling out some time late in 2000. Had the Commissioner been in a position to read the Seddon report prior to the Olympics in that year, I have no doubt Mr Walpole would be back in the police today, but unfortunately events conspired against Mr Walpole, yet again, and by the time the Commissioner had read Mr Seddon's report or had received it, he no longer had any confidence in Mr Seddon, and I think at the conclusion at 2000 took steps to terminate his secondment. Skinner review and advice 149 I have already referred to the review and advice of Mr Skinner of counsel in July 2002. Mr Skinner was instructed to: conduct a legal review generally of the matters that led to former Detective Sergeant Wayne John Walpole leaving the NSW Police Service in May 1997, and of the subsequent events and actions concerning Mr Walpole; and my advice is sought in relation to representations made to the Police Service by the Police Association on behalf of Mr Walpole. 150 Mr Skinner, as I earlier noted, expressed the opinion there was "a sound substantive basis for Acting Commissioner Taylor to dismiss Mr Walpole in August 1996 under s 181B of the Act, and for Commissioner Ryan to not have confidence in his suitability to continue as a police officer in May 1997 under s 181D of the Act." In reaching this conclusion, Mr Skinner reviewed the evidence in the Selewski trial and the evidence in the Police Royal Commission. Mr Skinner stated: In my opinion, Mr Walpole did not give truthful evidence on his oath to the Royal Commission and neither did he give truthful evidence in Selewski's trial. It does not fit with that of any other relevant witnesses, including on a crucial point, Oswald. 151 Mr Skinner comes to this conclusion on the basis, it would appear, that Mr Walpole's case had been reviewed no less than 12 times but only Mr Seddon had supported Mr Walpole's reinstatement. It was an overstatement by Mr Skinner to grace what were in most instances quite inadequate considerations of Mr Walpole's resignation with the title "review". Further though, and more fundamentally, that Mr Walpole's evidence conflicted with the versions given by all other witnesses in the Royal Commission except for Oswald, although Mr Skinner said there was a crucial point of difference even between Mr Walpole and Mr Oswald that being that Oswald had said in his evidence that he, Mr Walpole and WS4 got out of the car at the gate whereas Mr Walpole said he did not leave the vehicle. 152 In relation to this issue, Inspector Oswald gave evidence in these proceedings. Inspector Oswald stated: The Association's lawyers have drawn to my attention that in the course of the Royal Commission proceedings, at page 26931 lines 32 I said, "…myself and Mr Walpole and WS4 got out of the car and approached a man who I now know to be George Selewski." I have been asked for the purposes of preparing this statement to consider whether it was possible I was mistaken in my belief that Mr Walpole got out of the car. Whilst I believe that I was attempting to tell the truth to the best of my knowledge and belief, I concede that I might have made a mistake. It is entirely possible that I was simply incorrect in what I stated on that occasion. However, I did not perjure myself before the Royal Commission. I did not knowingly give false evidence. A number of reasons exist why I concede the possibility of a mistake. I have no independent recollection of Mr Walpole getting out of the car at the time of Selewski's arrest or of having seen Mr Walpole outside of the vehicle at the time of the arrest. At that time I was focused on making the arrest and what Mr Selewski was doing. I was not paying particular attention to what was going on with respect to the other two police officers. I can say, from my training and experience as a member of NSW Police including as a SWOS member, that it would be surprising if all three of us did get out of the vehicle at that time to affect (sic) the arrest. It would be surprising because with three officers present at the time of the arrest there would be no one to pursue the offender if he were to flea (sic) down the side. There was no briefing about how we would handle the incident that I can recall. Mr Walpole and I were both part-time members of SWOS at the time and were well aware of general procedures for events of this kind. This response of an officer remaining in the vehicle would be consistent with the instinctive response expected as a result of the relevant training. 153 In his advice Mr Skinner went on to state: [H]e [Walpole] has always been unequivocal about the proposition that Selewski drove the silver Commodore up to the gate of the Castlereagh property, and that at that time he was with Oswald and [WS4] in the police vehicle nearby. This clearly conflicts with the version of all other witnesses than Oswald … It is clear to me that however one looks at it, and revisit, deconstruct or revise his evidence in the trial and the Royal Commission as he might, Mr Walpole's evidence of the events of the night of 10 December 1990 as to the two fundamental points of Selewski driving the Commodore long after he was in police custody, and [WS4] being with Walpole and Oswald awaiting the arrival of the Commodore, cannot stand up against the fact of Mr Selewski's earlier arrest and the circumstances of same and subsequent events as given by all other police officers involved except Mr Oswald. … [T]he only reasonable inference in the circumstances, in my opinion, is that he knowingly gave false evidence in the trial of Selewski and to the Royal Commission. 154 I am not entirely certain what Mr Skinner meant by his reference "to revisit, deconstruct or revise his evidence" but Mr Walpole's testimony about what occurred on 10 December 1990 was the same in the Selewski trial, the Police Royal Commission and in the proceedings before me. 155 In his advice, despite the obvious parallels, Mr Skinner made no relevant reference to the Full Bench decision in Oswald other than to say: Further, in my opinion he [Walpole] did not give such false evidence unwittingly, as some kind of dupe of the other corrupt officers, as Superintendent Seddon thought was a possibility, and the Full Bench of the Industrial Relations Commission of NSW also considered a possibility in relation to Oswald. 156 I consider that Mr Skinner did not give proper and sufficient weight to the Full Bench decision in Oswald. Potter 157 One of the bases upon which counsel for the Association relied for its application to have Mr Walpole reinstated was his unequal treatment compared to Detective Karen Potter, who I noted earlier is now Inspector Karen Webb. 158 In July 1996, a s 181B notice was being prepared to be served on Senior Constable Potter. In a letter to Mr Michael Finnane QC, Mr G W Crooke QC, senior counsel assisting the Police Royal Commission, noted that no "assistance" (eg, resignations) had been received from Detectives Walpole, Oswald and Potter. Mr Crooke consequently provided copies of relevant exhibits and transcript references in the Royal Commission proceedings. 159 At some time in 1997 Commander Brammer wrote to regional commanders concerning the lack of action taken in respect of officers who had received an adverse mention during the course of the Police Royal Commission. The memorandum indicated that Commander Brammer had written to each of the officers and invited them to provide a response to the relevant adverse mention. 160 Commander Brammer wrote to Detective Senior Constable Potter in about September 1997. He referred Senior Constable Potter to the adverse mention against her in the Police Royal Commission and invited her to respond. The adverse mention related to her evidence given on 13 June to the Royal Commission regarding her involvement in the Selewski arrest. 161 On 7 October Senior Constable Potter's solicitors, Walter Madden Jenkins, wrote to Commander Brammer in response to the Commander's earlier letter to the officer and stated: In accordance with our advice given to our client, she does not wish to make any comment about her evidence. In relation to the evidence of Mr George Selewski, our client would ask you to consider the evidence of Ms Haxton wherein she has said that she was the officer who spoke to Mr Selewski and she was the officer who took notes. Clearly, Mr Selewski's evidence concerning Ms Potter is in conflict with the evidence of Ms Haxton and other officers. Mr Selewski's evidence is totally uncorroborated and is contrary to evidence given by other police. In relation to the evidence given by WS4, our client denies any misconduct whatsoever. Given the fact that WS4 is a self confessed perjurer, drug dealer and thoroughly corrupt officer, he is a person devoid of credit and no confidence should be placed in anything he said in evidence. Senior Constable Potter's solicitors asked that no further action be taken against their client. 162 On 19 June 1998 Commander Brammer wrote to the Acting Local Area Commander for Lake Illawarra advising that no further action was to be taken against Senior Constable Potter in relation to her Royal Commission evidence. This followed a memorandum on 17 June 1998 from the Commander, Probity Assessment Unit of Internal Affairs, A M Champion, which stated the following: COMMENT I have interrogated the intelligence systems containing information of the Royal Commission and perused the material relevant to the officer [Senior Constable Potter]. I have perused advice provided by Walter Madden Jenkins, solicitors acting on behalf of Senior Constable Potter concerning her involvement with the Royal Commission. The following observations are made: · Senior Constable Potter has categorically denied the allegations made against her at the Royal Commission into the Police Service. · Allegations were provided by officers who have been identified as having no credit. Evidence given by them has been shown to be inaccurate, if not perjured. · The substance of the allegations are in conflict, are contradictory and uncorroborated. · The officer has continued to perform her duties since the time the allegations were made, taking into account the emotional and physical strain placed upon her. · There have not been any complaints recorded against this officer prior to or since this issue which was the substantive matter before the Royal Commission. RECOMMENDATION That no further action be taken in respect of this issue raised at the Royal Commission into the Police Service concerning Detective Senior Constable Potter. 163 In relation to the evidence concerning Senior Constable Potter at the Police Royal Commission: · Senior Constable Potter stated when she was travelling in the police vehicle from the Castlereagh property to the Clarendon property with WS11, and the vehicle turned around and stopped where police had already stopped a vehicle, that she did not get out of the police vehicle and she was not aware of what occurred at that time, did not ask and was not advised by any fellow officer present. WS4, however, stated that Senior Constable Potter was physically present at the time Mr Selewski was arrested on the roadway and that to the extent Detective Potter was present, she had relevant evidence to give about the fact of Mr Selewski's arrest. · At the trial of Selewski Senior Constable Potter's statement did not make mention of Mr Selewski having been arrested on the dirt road on the basis she said, at the Royal Commission, she was not aware he had been arrested. Senior Constable Potter agreed she made her statement based on the statement of WS11, which put the place of arrest at the gate to the Castlereagh property. · Mr Selewski stated that after his arrest he was placed in a police car with "Anne Potter". Mr Selewski said Ms Potter identified herself to him using her first and last names. Mr Selewski said she asked him several questions and that Ms Potter made notes. Ms Potter denied being in the vehicle with Mr Selewski. Ms Haxton said she was the female police officer in the vehicle with Mr Selewski. · Senior Constable Potter could not explain why her duty book entry suggested she actually took part in the execution of the search warrant at the Castlereagh property when in fact she did not. She suggested she may also have used WS11's duty book to complete her own. She agreed she may have left a blank page in her duty book for 10 December 1990 but could not explain why she would have done this. Senior Constable Potter denied anyone intended or attempted to write her out of the evidence brief. 164 I note Mr Skinner, in his Review and Advice, considered that "the evidence of Potter was unsatisfactory and she did not appear to be telling the whole truth to the Commissioner". CONSIDERATION 165 Mr Docking of counsel for the Association contended there were four bases upon which the Commission could exercise its jurisdiction in this dispute: (1) That there had been no acceptance by the Commissioner of Police of Mr Walpole's resignation in accordance with the provisions of s 82(2)(a) of the Police Act. However , if it be the proper inference of fact that the Commissioner accepted the resignation of Mr Walpole, such acceptance constituted a termination or dismissal of employment and/or a termination or dismissal from a non-executive position. (2) Mr Walpole was constructively dismissed. (3) Even if it could be said Mr Walpole's resignation was untainted by duress, the Commission still has jurisdiction to order reinstatement: Michaelis Bayley Trading Company and New South Wales Sales Representatives and Commercial Travellers' Guild Re Dismissal [1979] AR (NSW) 392. (4) There is a refusal to employ Mr Walpole. The Commission has jurisdiction to order employment: Police Association v NSW Police (No 2) [2005] NSWIRComm 70 at [37]-[39]. 166 I do not propose to spend time considering each of the foregoing alternatives except to observe that, in respect of the first alternative, I consider the inference to be drawn from the facts is that the Commissioner did accept Mr Walpole's resignation. In respect of the fourth alternative, I have some reservations about whether an order directing the Commissioner of Police to employ Mr Walpole, as distinct from reinstate or re-employ, might be precluded by s 89 of the Police Act. It is arguable that an order directing employment would be tantamount to a direction to the Commissioner to appoint Mr Walpole to a vacant non-executive position. In relation to the third alternative, based on the authority of Michaelis Bayley, Macken J in that case held: On appeal, Mr Shaw of counsel, who appeared for the Guild, contended that the learned conciliation commissioner was in error in declining to exercise his jurisdiction, having regard to the judgment of the Commission in Court Session, of 7 March in Orange City Bowling Club Limited v Federated Liquor and Allied Industries Employee's Union of Australian, New South Wales Branch . He argued that, even had Mr Gale freely resigned from his employment, it was within the jurisdiction of the conciliation commissioner to hear the reinstatement application. Mr Gallagher, who appeared for the employer, conceded that the commissioner was in error in holding that he lacked jurisdiction to determine the reinstatement claim, given the judgment in the Orange City Bowling Club Limited Case . ... There can be no doubt that the conciliation commissioner had jurisdiction to decide the merits of the termination of employment. Not only did such jurisdiction exist had the resignation been untainted by duress, but, as a matter of fact, the employee did not resign; he was dismissed. Just as it is a fundamental requirement for an employment contract to be entered into by the genuine consent of both parties to the contract - a consent untainted by any hint of pressure or threat - so too, it must be terminated, by a resignation equally untainted by any such threat. Where a contract is terminated otherwise it amounts to constructive dismissal (references omitted). 167 It seems to me that the Commission does not have the power under Pt 6 of Ch 2 of the Industrial Relations Act to order the reinstatement of an employee who freely resigns from his or her employment. Those provisions are concerned with the dismissal of an employee. Dismissal may be regarded as being "the termination of services by the employer without the employee's consent". However, where an employee resigns but in doing so does not freely consent to the termination, then the circumstances may amount to a dismissal by the employer as a constructive dismissal: see Smith v Director-General of School Education (1993) 31 NSWLR 349 at 365-366; 51 IR 204 at 219. Given my findings in relation to the jurisdictional issues, I consider s 405 of the Industrial Relations Act and/or s 89 of the Police Act precludes me from making any order or award directing the Commissioner of Police to employ Mr Walpole other than an order made under s 89 of the Act pursuant to s 136(1)(d) or a recommendation or direction under s 136(1)(a) of the Act. 168 I take the view that Mr Walpole was dismissed from his employment. The evidence supports the conclusion that had the employer not taken the action it did, Mr Walpole would have undoubtedly remained in the employment relationship. In Walter Silberschneider v MRSA Earthmoving Pty Ltd (1988) 30 AILR 65; (1987) 68 WAIG 33 the Full Bench of the Industrial Relations Commission of Western Australia stated: As pointed out in David Jones Ltd v Australian Workers' Union re Levette [1978] AR 206, resignation in the face of an unpalatable alternative is not a true resignation. A contract can only be terminated by resignation where there is genuine consent, untainted by any hint of pressure of threat. 169 In my opinion, Mr Walpole resigned in the face of an unpalatable alternative and the decision to resign was not made freely or in the absence of undue pressure. It is clear from Allison v Bega Valley Council (1995) 63 IR 68 at 76 that constructive dismissal is not limited to circumstances where the choice is a threat of dismissal or resignation. In Allison the appellant was concerned at the threat of police action and the consequent impact that it would have on him and his family. It was this concern that was a factor that motivated him to tender a letter of resignation as well as the employer's indication that it wanted him to resign. 170 In Allison the Full Bench observed that the inquiry into the circumstances of a termination of employment involved an analysis of what occurred. At 72 the Full Bench indicated that the appropriate inquiry was: Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation? The Full Bench stated that a consideration of these matters must be made on a case-by-case basis. 171 In considering the question in this case of whether the employer was the real and effective initiator of the termination of Mr Walpole's employment, it is relevant to consider the following matters: (1) On 23 July 1996 Mr Walpole was placed on restricted duties as a result of the evidence given at the Police Royal Commission. (2) On 8 August 1996 Mr Walpole was served with a show cause notice under s 181B of the Police Service Act. The notice stated that the Acting Commissioner had formed the opinion that Mr Walpole had engaged in corrupt conduct or other conduct constituting an indictable offence and that he was no longer a fit and proper person to hold a position in the NSW Police Service. The notice cited a number of grounds alleging conspiracy to pervert the course of justice and perjury. The notice was factually wrong. (3) On 8 August 1996 Mr Walpole was suspended from duty. (4) On 27 August 1996, Oates & Smith sent to the Acting Commissioner a response to the notice attaching an 8-page submission from Mr Walpole explaining what occurred on 10 December 1990 and emphatically denying Mr Walpole's involvement in any wrongful activity. (5) On 28 August 1996 Mr Hastings QC provided a two and a half page advice that the dismissal of Mr Walpole was appropriate. I agree with counsel for the Association that the advice made no adequate analysis of the competing contentions and in particular of the inconsistencies in the information of WS4 and Selewski. For instance, WS4 said in his Royal Commission evidence that when he got back to the Castlereagh property with Mr Selewski the gate was locked, he got keys from Mr Selewski and found one that operated the gate. Whilst he was at the gate WS4 said Oswald and Walpole arrived but he was not "100 per cent sure" whether they knew Mr Selewski had been arrested. Mr Selewski's evidence was that gate at Lot 97 had been knocked down, the vehicle he was in did not pause at the gate and "Drove straight down the driveway to the back of the house." The advice also made the incorrect allegation that it was highly implausible police had time to see the Holden Commodore approach the gate and then drive approximately 1 km to that location before Selewski had time to unlock the gate. Like the Royal Commissioner and Counsel Assisting, Mr Hastings was mistaken about the distance. (6) On 29 August 1996, the Acting Commissioner removed Walpole from the NSW Police by signing a two and a half line letter. It is difficult to believe, given the time frame, the Acting Commissioner gave any adequate, independent consideration at all to the submissions made by Mr Walpole in response to the s 181B notice and, instead, that he relied solely on counsel's inadequate advice. In my opinion, the Commissioner was required to apply his own mind to the issues raised by Mr Walpole: Hosemans v NSW Police (No 3) [2005] NSWIRComm 161. There was no evidence that he in fact did so. (7) On 17 September 1996, proceedings were commenced alleging that the removal of Walpole from the NSW Police was harsh, unjust and unreasonable. (8) On 24 October 1996, in advice to Assistant Commissioner Schuberg, Mr Hastings referred to proceedings before the Industrial Relations Commission involving eight pending applications by former officers dismissed pursuant to s 181B, including Mr Oswald. Mr Hastings referred to the fact solicitors representing the dismissed officers had indicated that they would obtain instructions from their clients to make proposals to settle matters. Mr Hastings stated, "It is expected that the proposals will either amount to an offer to resign or a demand for reinstatement." Mr Hastings advised that the requests for reinstatement should be rejected but that in relation to former officers who wished to resign it was necessary to give serious consideration to the proposals. Mr Hastings stated that he agreed with the Commissioner and Assistant Commissioner Schuberg: … that the primary consideration in relation to officers who are the subject to adverse evidence before the Royal Commission is to ensure that the Police Service is rid of them … Accordingly, as a general proposition it seems that whenever an officer threatened with summary dismissal offers to resign, it is desirable and appropriate that the resignation be accepted." It is apparent from these comments that the position of the Acting Commissioner, supported by his counsel, was that if in the face of a notice advising an officer that he or she was no longer a fit and proper person to hold a position in the NSW Police Service and that the Acting Commissioner was considering the officer's removal (i.e, Mr Walpole was "threatened with summary dismissal"), if that officer tendered a resignation it should be accepted. (9) On 20 February 1997, Mr Michael Finnane QC settled the matter relating to Mr Walpole and he was reinstated without loss of benefits. Mr Finnane admitted, "… an error was made I suppose in failing to have regard to that matter when considering the representations made by Mr Walpole" and that "He traversed those issues and it is an oversight. It is a very embarrassing thing that these matters were overlooked. The justice of the situation really has to be that he has to be reinstated." (10) Mr Walpole said in his evidence, "That evening [the evening of 20 February 1997] I went to the Albion Hotel in Parramatta, together with a large number of police and family to celebrate. I was approached by a colleague from the Armed Hold Up Unit, Detective Senior Sergeant Cheers, and informed that I would not be permitted to return to work." (11) On 21 February 1997, Mr Finnane recommended that Mr Walpole should not be permitted to perform police duties and that action should be taken to suspend him with pay until further notice. He further suggested priority for s 181D consideration. Action was taken on that date to suspend Mr Walpole. (12) Mr Walpole said that on 21 February 1997, "… I attempted to return to work. After I arrived at work, I was told that I could not return to work and that I should go home. I was told that someone would contact me in the near future". (13) Between 21 February 1997 and May 1997, Mr Walpole was suspended with pay. (14) On 20 April 1997 Commander Brammer and Assistant Commissioner C J Nixon signed off on inadequate and incorrect "reviews", recommending that the process under s 181D of the Police Service Act proceed against Mr Walpole. (15) On 6 May 1997, Mr Walpole was served with notice under s 181D signed by Commissioner of Police, P J Ryan, and attached papers. According to the Commissioner, the s 181D notice was, "… encompassing the same issues as raised in the s 181B, however with additional information" and, indeed, the notice repeated the errors associated with the previous notice under s 181B and added the allegation relating to the Denney matter, a matter that had no proper foundation. (16) In relation to the notice under s 181D, Mr E J Shiels, a character witness for Mr Walpole and a former serving police officer said in his evidence that "It was certainly something that was believed and perceived by police at that time that, if you received one of those notices from the Commissioner of Police, you were actually dismissed". (17) After receiving the notice Mr Walpole sought advice from his solicitors and from the Association. He was advised that due to a change in the legislation the only form of review available at the time was a form of judicial review on the process followed by the Commissioner. He was advised that the Supreme Court did not look at the merits of the decision and that he could not go back to the Industrial Relations Commission for a merits review. Further, that if it came to challenging in the Supreme Court the Commissioner's decision to remove him he would not have grounds to challenge the decision on process and that he "didn't have anywhere to go". Mr Remfrey said in his evidence in the proceedings in cross-examination: … the view of all the lawyers was that the appeal mechanism was left open to members following the decision to change from the 181B legislation to the 181D legislation was wholly inadequate. There was no right of appeal on merit. It was administrative law only as we understood it. All of the lawyers had basically taken the view that that was not worth pursuing. There was no case, to my knowledge, taken by any member or police officer who was dismissed under section 181D, of going down the administrative law route, and I would have assumed that Mr Walpole got exactly the same advice that most of the lawyers - or all of the lawyers for us had been indicating at the time. (18) Mr Walpole said that he was led to the belief in May 1997 that "I was left with no alternative other than to tender my resignation from the NSW Police. I didn't see I had any other choice other than wait to be removed". (19) In his resignation letter of 26 May 1997 Mr Walpole said, "… I feel I have no alternative other than to tender my resignation …" (20) The Police Service Act was amended again in June 1997 to restore the jurisdiction of the Industrial Relations Commission to review the removal of a police officer. This meant that it was only between December 1996 and June 1997 that a review by the Commission was not available. It was into this period when no merit review was available that Mr Walpole fell. 172 It is readily apparent from the foregoing summary of events leading to Mr Walpole's resignation why he might have chosen to resign given the unrelenting pursuit of him by his employer over a 12 months' period, the threat of summary dismissal in the s 181D notice, the advice he received that he "didn't have anywhere to go", his expectation that dismissal was inevitable and the stigma attached to removal, particularly in the aftermath of the Police Royal Commission. In my opinion, there was significant and direct pressure on Mr Walpole that leads me to the view that his act of resignation was not a considered and voluntary act. It is important, nonetheless, to consider the specific reasons given by Mr Walpole for tendering his resignation. The respondent contended the reasons were disingenuous. 173 Mr Walpole held the belief that after he was reinstated in February 1997 and immediately suspended, his employer deliberately waited until the legislation was amended to limit his opportunity to pursue relief through the Industrial Relations Commission. Mr Walpole believed, wrongly, that the Police Legislation Further Amendment Act, which narrowed the process of review in accordance with administrative law principles and gave exclusive jurisdiction to the Supreme Court, came into force after he was issued with the notice under s 181D. That Amendment Act, however, commenced operation in December 1996. Mr Walpole also said he was: … disgusted that I received a notice under 181D when the Police Service, with all its resources would have denied fair justice and reasonably think that would have been expected of the Police Service, that was to issue me a 181B the very next day after Mr Finnane realised that someone made errors. 174 That Mr Walpole had a mistaken belief about the Commissioner's motives in waiting some time before the s 181D notice was served on him in May 1997 does not make his reliance on that belief disingenuous. Counsel for the respondent submitted, however, that Mr Walpole made no mention of the three months' delay and his attitude to it in his letter of resignation or in subsequent correspondence and it was "very lightly touched in an unexplained way in his affidavit in these proceedings." Mr Walpole did not mention most of his complaints in his letter of resignation, but he did, in fact refer to his belief in his correspondence to Commissioner Ryan in April 1998, to the Minister for Police in May 1998 and again in August 1998 that as a consequence of the changes to the legislation he had lost what he considered to be his appeal rights. Mr Walpole also made it clear in his oral evidence in these proceedings that he held the belief that the issuing of the s 181D notice was a deliberate tactic on the part of his employer to take advantage of changed legislation that limited the scope of any review. 175 That Mr Walpole might have made the mistake he did in believing his employer waited three months for the legislation to change before serving him with a fresh notice is understandable. As to the removal of Mr Walpole prior to December 1996, he was entitled to a review by the Industrial Relations Commission. Those review proceedings were scheduled to be heard in February 1997, that is three months after the legislation had changed, but nevertheless, under the transitional provisions, the previous legislative regime continued to apply to Mr Walpole. A settlement was reached and Mr Walpole was reinstated. He was immediately suspended from duty and in the normal course it would be expected that shortly thereafter a new notice would be served but it was delayed until May 1997. When the notice under s 181D was served on him, Mr Walpole learned that the legislation had changed and he was advised there was no opportunity for a merit-based review. It was open to him to draw the conclusion that between the time he was suspended and the time he was served with a new notice, the legislation changed. And that given his, no doubt, jaundiced view of his employer's conduct by this time, he formed the view that the long delay between suspension and the service upon him of a new notice was in order for his employer to take advantage of the new legislation. He was clearly mistaken in forming that view but there is nothing in the evidence that would lead me to the conclusion that Mr Walpole's reliance on the delay and the improper motives he attributed to his employer was disingenuous. 176 Mr Pearce of counsel for the respondent contended that Mr Walpole was fully cognisant of the repetition of the errors in the notice he received pursuant to s 181D in May 1997. Given that awareness, and the fact that he contended Mr Walpole well understood the basis upon his the Commissioner did not proceed against him in February 1997, Mr Pearce submitted that Mr Walpole would also have understood there were good prospects of successfully defending the notice in the Supreme Court but that Mr Walpole did not even provide a response to the notice and instead resigned. 177 Mr Walpole denied that at the time he understood the implications of the repeated errors in the notice. I am not entirely convinced about this. In his resignation letter Mr Walpole referred to "receiving a notice under Section 181d (sic) raising the same issues as in the failed s 181b (sic) …" This demonstrates an awareness of the factual mistakes in the new notice and it seems to me that any lawyer advising Mr Walpole in this respect would have understood that the errors provided good grounds for judicial review. It is apparent, however, that Mr Walpole was utterly convinced that his employer was intent on removing him from the Police Service and that he did not wish to risk the prospect that he might be removed without any opportunity for the merits of his case to be reviewed. If he had responded to the notice he was inviting the possibility - in his mind, probability - that he would be removed. Even if Mr Walpole had sought a review of the notice because of the errors it contained, and even if he were successful, it would have been a simple matter for the Commissioner to re-issue a new s 181D notice with the correct allegations and the prospect of removal would have been a legitimate consideration for Mr Walpole. 178 In reality, it is not surprising that Mr Walpole believed there was nothing to be gained from responding to the notice or challenging the factual errors in the notice because, in all likelihood, given the single minded pursuit of Mr Walpole by his employer, a new notice containing the correct allegations would have been served upon him and there was no reason for him to believe that the Commissioner would have taken a different view of the evidence at Selewski's trial and the Police Royal Commission evidence. 179 Mr Pearce referred to the fact that personal and family reasons were very significant reasons for Mr Walpole taking the decision to resign. That has to be seen in the context of Mr Walpole's concern at the stress his family had experienced as a consequence of the attempts to remove him from the Police Service. By May 1997 Mr Walpole said, in a statutory declaration prepared in August 1999 as part of a submission to the Police Minister: …my family had been through hell. My wife Deirdre, who is a serving police officer, had only given birth to our third child 2 weeks before I was dismissed by NEIL TAYLOR, my father had major heart surgery and I knew only too well the difficulties in obtaining employment as a result of being dismissed. I had no alternative other than to resign and I tendered my resignation on the 24 May 1997. Any person reading my resignation can see that it was not by choice. 180 There is little doubt that a significant factor influencing Mr Walpole to resign was the stress being caused to his family. But it was not the only factor and in combination with the advice he had received that he had nowhere to go, his belief that the Commissioner was intent on removing him from the Police Service regardless of his pleas of innocence and the stigma attached to removal from the Service, it is completely plausible that Mr Walpole felt he had no choice but to resign. 181 Having been served with the notice under s 181D Mr Walpole was under the threat of dismissal. The notice advised him that the Commissioner was considering his removal because he had lost confidence in him. Mr Walpole had already pleaded at length his innocence in response to the notice under s 181B but to no avail. He received a two and a half line letter two days later dismissing him. By the time he received the notice under s 181D in May 1997, nothing had changed that would have led to Mr Walpole expecting different treatment. In fact, the Denney allegations had been added to the notice. The Commissioner was intent on removing Mr Walpole; he had the support of Commander Brammer and Assistant Commissioner Nixon as well as the advice of senior counsel, notwithstanding that all of this was flawed. 182 Mr Walpole had received advice that there was no longer the opportunity of having his dismissal reviewed on the merits; indeed, he was told he "didn't have anywhere to go". He believed his employer had delayed serving him with a new notice until the legislation had changed limiting his opportunity for review. The belief was wrong but it was not disingenuous. Mr Walpole did not want his police record after sixteen years, stained with removal. He was concerned that dismissal would make it difficult to find other employment. He was concerned that any attempt by him to resist the push to have him removed would cause further stress on his family, a consequence he was anxious to avoid. 183 It is undoubtedly the position that Mr Walpole's employer was the real and effective initiator of the termination of his employment. Faced with the real threat of removal from the Police Service and the consequences of that removal Mr Walpole considered that he had no choice but to resign, something he would not otherwise have contemplated. 184 I find that Mr Walpole was constructively dismissed from his employment with the NSW Police Service on 24 May 1997. Whether dismissal harsh, unreasonable or unjust 185 The next issue to be considered is whether the constructive dismissal of Mr Walpole was harsh, unreasonable or unjust. In this respect it is to be kept in mind that what triggered Mr Walpole's resignation was the notice served on him by Commissioner Ryan in May 1997 pursuant to s 181D of the Police Service Act alleging conspiracy to pervert the course of justice and perjury in relation to the Selewski arrest and the alleged assault on Mr Denney in May 1989. The notice, in so far as it referred to the circumstances of the Selewski arrest, was almost wholly wrong, alleging as it did that it was Mr Walpole's evidence in the Royal Commission that it was he and WS4 that apprehended Mr Selewski and that Mr Walpole took part in the arrest. 186 The allegations, if properly framed, against Mr Walpole and which the Commissioner of Police continues to rely upon in refusing to reinstate Mr Walpole, would have read something like this: (1) Evidence in the Royal Commission that you conspired with other officers to pervert the course of justice in relation to the arrest of George Selewski in December 1990 in that you agreed to falsely state that Detective Oswald* and [WS4] apprehended Selewski outside premises at lot 97 Castlereagh Road Castlereagh on 10 December 1990 knowing that statement to be false. (2) Evidence in the Royal Commission that you committed perjury in your evidence at the trial of George Selewski and others in that you gave evidence that Detective Oswald* and [WS4] apprehended Selewski outside premises at lot 97 Castlereagh Road Castlereagh on 10 December 1990 knowing such evidence to be false. (3) Evidence that you committed perjury in your evidence before the Royal Commission into the NSW Police Service on 13 June 1996 in that you gave evidence that Detective Oswald* and [WS4] apprehended Selewski outside premises at lot 97 Castlereagh Road Castlereagh on 10 December 1990 knowing such evidence to be false. * The words "Detective Oswald" have been inserted in lieu of "you". 187 It may be noted, as I mentioned earlier, that the Commissioner no longer relies on the Denney allegations. 188 Evidence that was admitted in these proceedings as to its truth in relation to the Selewski incident, which also bears on the conflict between on the one hand Mr Walpole's evidence corroborated by the evidence of Mr Oswald, and on the other hand the evidence of others, may be summarised as follows: (1) There was no evidence that Oswald and Walpole had any conversation or made any arrangement with WS4, WS11 or WS14 or any other police officer that might be construed as conspiring to pervert the course of justice. (2) There was no evidence to specifically indicate that Mr Walpole or Inspector Oswald knew of the "first arrest" of Selewski near Lot 5 Racecourse Road Clarendon; there was no evidence that Oswald and Walpole were at the scene when the "first arrest" of Selewski occurred. (3) There were four persons who gave evidence in the Royal Commission about what happened at the gate to Lot 97 Castlereagh Road: Selewski, WS4, Oswald and Walpole. Of these four persons WS4 admitted in the Royal Commission proceedings to: telling lies; obtaining heroin; supplying heroin; committing perjury and receiving corrupt payments. Selewski has a very substantial criminal history including break, enter and steal, larceny, possession of prohibited drugs, conspiracy to manufacture prohibited drugs, supplying prohibited drugs, knowingly giving false testimony, and numerous driving and traffic offences. (4) The Full Bench in Oswald ruled upon the conflict of evidence in favour of Mr Oswald. Nothing new in relation to the Selewski incident has been put to the Commission as presently constituted that was not considered by the Full Bench in Oswald . (5) The evidence about how Mr Selewski got from Clarendon to the Castlereagh property after the "first arrest" was decidedly vague. Mr Selewski did not say who drove the police car or his son's Holden Commodore. WS4 said he drove Selewski's car back to the gate but he did not know whether he commenced the return journey in the police vehicle or in Mr Selewski's vehicle. Mr Walpole and Mr Oswald did not know how Mr Selewski got from one location to another. (6) There were inconsistencies in the evidence of WS4 and Mr Selewski. Mr Selewski said that upon arriving at Lot 97 he "drove straight down the driveway to around the back of the house". WS4 said they stopped at the gate and unlocked the padlock using a key found on Mr Selewski. The version given by WS4 is consistent with that given by Mr Oswald and Mr Walpole. Mr Selewski said the gate had been knocked down or "ripped off its hinges". WS4 said that on the first entry to the Castlereagh property for the purpose of executing the search warrant it was found the gate was padlocked and so entry was gained by pulling a star spike fence post out of the ground. A photograph tendered into evidence showed that the gate was still on its hinges. (7) A further inconsistency arises between Mr Selewski's version that he drove straight down the driveway and WS4's story that when he and Selewski arrived at the gate to Lot 97, Mr Oswald and Mr Walpole also arrived at the gate. WS4 could not recall whether the arrival of Mr Oswald and Mr Walpole was the result of a radio call. This is in the context that WS4 agreed that he had been involved in observing the Castlereagh property from West Wilchard Road "at some stage that evening". (8) In relation to West Wilchard Road, it was asserted in the Police Royal Commission proceedings that the Road was a kilometre from the entrance to Lot 97 on Castlereagh Road with the accusation being made against Mr Walpole that he and Mr Oswald could not have observed Mr Selewski arriving at the gate to Lot 97. The evidence in these proceedings, which I accept as being correct, is that the West Wilchard Road is only 400 metres from the entrance to Lot 97 and there was no evidence that the entrance could not be observed from the Road. (9) WS4's evidence in the Police Royal Commission was that he was not sure where he cautioned Mr Selewski but considered it could have been at the gate. This is an example of a further inconsistency with Mr Selewski's evidence and raises the question of why, having already stated Selewski was arrested near Clarendon, WS4 considered that it was possible he cautioned Mr Selewski at the gate to Lot 97. (10) WS4's evidence in the Royal Commission was that he found a bottle of chemical in Mr Selewski's car at the Castlereagh property. Mr Oswald said it was he who found the chemical in the back seat. Mr Selewski denied there were any chemicals in his vehicle thereby giving rise to a further inconsistency between the evidence of Mr Selewski and WS4. (11) Mr Walpole's version of events of 10 December 1990 and his denial of any conspiracy to pervert the course of justice or perjury. (12) Mr Oswald's version of events corroborating that of Mr Walpole. In the respect, Mr Skinner in his Review and Advice, suggested there was a crucial point of difference between the evidence of Walpole and Oswald given at the Police Royal Commission and that was that Mr Walpole said he stayed in the police car at the gate whereas Mr Oswald said that Mr Walpole got out of the car. I consider Mr Skinner put the significance of the difference too highly, especially when one considers the quite substantial differences between the versions of Mr Selewski and WS4 about what occurred at the gate, yet those differences appear to have been overlooked in preferring the evidence of a criminal and corrupt police officer over the evidence of Mr Oswald and Mr Walpole, evidence which in all major respects was ad idem . In any event, Mr Oswald in his evidence in these proceedings stated he may have been mistaken about Mr Oswald getting out of the vehicle and explained why that might have been so, but that he did not perjure himself. Mr Oswald remained adamant he did not get out of the police vehicle at the gate. 189 The position then, in relation the evidence about what occurred on 10 December 1990, is that two police officers with previously good records and each with many years of service were assigned to assist the Drug Unit with a police operation. They had no prior involvement in the operation. There was no evidence of any discussion or arrangement between Oswald and Walpole and the corrupt police officers that would suggest that they were engaged in any conspiracy to pervert the course of justice. There was no evidence either of them were at the scene of Selewski's "first arrest" or had any knowledge of the "first arrest". It was not the case that the position that Oswald and Walpole had taken up in West Wilchard Road was one kilometre from the entrance to Lot 97; it was only 400 metres and there was no evidence to suggest a vehicle going into the entrance was unable to be seen from West Wilchard Road. 190 The evidence of Oswald and Walpole as to what occurred at the gate to Lot 97 has to be weighed up against the evidence of WS4 and Mr Selewski; one a corrupt police officer who had committed perjury and fabricated evidence and the other a criminal who, amongst other serious offences, had been convicted of knowingly giving false evidence. There were significant inconsistencies in the evidence of WS4 and Mr Selewski as to what occurred at the gate. There were no significant inconsistencies in the evidence of Oswald and Walpole. Their evidence has remained consistent since the Selewski trial, throughout the Royal Commission proceedings and in these current proceedings. 191 There was evidence from five witnesses in the Police Royal Commission that the arrest of Selewski was effected near Clarendon. These witnesses were WS4, WS11, WS14, Ms Haxton and Mr Selewski himself. I have already commented on the characters of Mr Selewski and WS4. WS11 was also a corrupt officer, thief, drug supplier and perjurer. WS14 was a perjurer, fabricator of evidence, drug supplier, and importer of illicit drugs, thief and corrupt police officer. Ms Haxton gave evidence of stopping on a dirt road and apprehending a male person but she never identified that male person as Selewski and in fact said in her evidence in the Royal Commission, "I don't know if it was one of the offenders or a suspect, but he ended up in the car that I was in or I ended up in the car …" Intriguingly, Mr Selewski said the female officer he was in a police car with was Ms Potter. 192 Ms Potter gave evidence at the Royal Commission that she was with WS11 when they stopped on a dirt road between the Castlereagh property and Clarendon and WS11 got out of the car but had no idea what events took place. Ms Potter's evidence on the whole was quite unsatisfactory and even if it were received in these proceedings as evidence of the truth I would not have given it much weight at all. 193 It is apparent from the material in the Police Royal Commission that WS4, WS11 and WS14 may be regarded as accomplices. In Jenkins v The Queen (2004) 79 ALJR 252; [2004] HCA 57 the High Court (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) said at [29]-[30]: 29 Where a warning in the terms proposed in Davies is given, the trial judge will have to explain to the jury what is meant by corroboration (not necessarily using that precise term), and direct their attention to evidence that is capable of being regarded as corroborating the accomplice. For this reason, among others, an accomplice warning is not always welcomed by defence counsel. It frequently means that the prosecution argument will be reinforced by a recitation by the trial judge of all the evidence that is capable of corroborating the accomplice. That, no doubt, is one reason why the Commonwealth and New South Wales Evidence Acts, in their provisions relating to judicial warnings about unreliable evidence, attach significance to whether there is a request for such a warning. 30 In the practical application of the rule, it must be observed that what is involved is a warning about the danger of "convicting upon the evidence" of the accomplice, unless it is corroborated. This is not a mere incantation. It must be related to a forensic contest, and its operation in a particular case must be explained to the jury by reference to the evidence and the issues. Those issues will be determined partly by the conduct of trial counsel, and might not emerge in final form until the closing addresses. The rule exists for a reason. That reason is related to the potential unreliability of accomplices, an unreliability thought to be so well known in the experience of courts that judges are required, not merely to point it out to jurors, but to tell them that it would be dangerous to convict upon the evidence of an accomplice unless it is corroborated. The principal source of unreliability, although it may be compounded by the circumstances of a particular case, is what is regarded as the natural tendency of an accomplice to minimise the accomplice's role in a criminal episode, and to exaggerate the role of others, including the accused. Accomplices are regarded by the law as a notoriously unreliable class of witness, having a special lack of objectivity. The warning to the jury is for the protection of the accused … 194 Even if I had accepted the transcript of the Royal Commission proceedings as evidence of the truth, in my opinion, the evidence of WS14, WS11 and WS4 would have to be regarded as completely unreliable and so would the evidence of Mr Selewski in relation to the "first arrest". I note in his Review and Advice that Mr Skinner stated that Mr Walpole could not come up with any explanation for the inconsistency of his evidence with that of other witnesses. With respect, there was no obligation upon him to do so and no adverse inference can be drawn from the fact that he was unable to do so. The Full Bench, however, in Oswald sketched two scenarios that might explain the inconsistency: Secondly, that WS4 and WS11 had initially not lied at Mr Selewski's trial or at the Police Royal Commission but, after rolling over, had altered their evidence to support Mr Selewski's version of events. They had then perjured themselves in the evidence which they gave before the Police Royal Commission, so assisting Mr Selewski to achieve acquittal from a criminal charge otherwise properly made out against him; thereby, and wrongly, the appellant and Mr Walpole became implicated in their corrupt activities. Thirdly, that the actual circumstances were such that, unbeknownst to the appellant and Mr Walpole, WS4 and WS11 had already arrested Mr Selewski elsewhere on the night in question, but had so arranged matters with Ms Haxton and Ms Potter that the appellant and Mr Walpole, honestly but wrongly, believed he had been arrested in the way in which they had given evidence at the trial and before the Police Royal Commission. Thus, while WS4 and WS11 had acted to improve the case against Selewski, the appellant and Mr Walpole had not. 195 Mr Skinner made no reference to these possibilities notwithstanding that they are just as plausible as the story put together by WS4, WS11 and WS14 and which was, in effect, accepted by Mr Skinner in preference to the evidence of Oswald and Walpole. In relation to WS14, I should add that the advice of Mr Hastings of senior counsel to Assistant Commissioner Schuberg on 26 July 1996 where he recommended a notice under s 181B be served on Mr Walpole, was that: The primary evidence of Walpole's misconduct came from [WS14]. His evidence was specifically supported by [WS11] and [WS4]. In addition Senior Constable Karen Potter, who denied any complicity in the misconduct of the other police, gave general evidence supportive of the versions of [WS14], [WS11] and [WS4] concerning the circumstances of Selewski's arrest. Similarly, Wendy Jean Hounslow, formerly known as Senior Constable Haxton, gave evidence generally supportive of the versions of [WS14, [WS11] and [WS4], concerning the arrest of Selewski without specifically implicating Walpole. The offender, Selewski, also gave evidence consistent with that of [WS14], [WS11] and [WS4]. 196 WS14 did not provide the primary evidence against Mr Walpole and indeed the notice did not even refer to WS14's evidence. In his evidence to the Police Royal Commission WS14 said he was not a party to the arrest of Mr Selewski but that he had been the officer responsible for the brief of evidence and had knowingly included evidence that was false, including changing the location of the arrest of Mr Selewski. When asked who was involved in the fabrication of the evidence he said he did not know. 197 In a statutory declaration made on 4 August 1999 Mr Walpole sets out the reasons that he and WS14 were never friendly. Mr Walpole had "spoken up" against WS14's intended transfer to the Armed Hold-up Unit, which did not go ahead and, further, Mr Walpole was promoted above WS14. Mr Walpole considered WS14 to be lazy and unreliable. 198 WS14 was the officer who made the allegations against Mr Walpole in relation to the Denney matter, allegations that, on the evidence in these proceedings, had no reasonable foundation. If WS14 was prepared to make those allegations against Mr Walpole and had Mr Walpole been involved in any conspiracy in relation to the Selewski arrest, it seems, as Mr Seddon suggested in his Report "reasonable to assume that [WS14] would not have hesitated to give him [Walpole] up to the Royal Commissioner." 199 Mr Docking of counsel for the Association submitted that it was not open to the respondent to rely on allegations of perjury by Mr Walpole as a basis to refuse reinstatement or re-employment. Mr Docking referred to the rule of law that where there is a charge of perjury against a defendant that in order to prove the falsity of the statements the subject of the perjury, it is necessary for the Crown to lead evidence as to that fact from two witnesses or from one witness whose evidence was corroborated: see Regina v Christine Gay Fish and John Gordon Swan [2002] NSWCCA 196; (2002) 131 A Crim R 172 at [39]-[40]. In these proceedings, there is no evidence as to the truth, let alone what is required in relation to a charge of perjury, against Mr Walpole. 200 I should make some relevant observations about the evidence given in the Police Royal Commission. In Malcolm Lorne Bigg and the New South Wales Police Service [1996] NSWIRComm 207, Fisher P stated at 8: Some discussion was had about Mr Bigg's opportunity for cross examination. Before the Police Royal Commission some cross examination did take place, limited by the purposes of the Police Royal Commission itself which is not as such concerned with individual guilt or innocence. Cross examination designed to refute criticism made before the Royal Commission would not necessarily be correlative with cross examination designed to defend issues relating to employment and dismissal. It seems clear that Mr Bigg cannot be assumed to have had a significant opportunity to cross examine for the purposes of issues arising in proceedings under Part 8 (Unfair dismissals) of Chapter 3 of the Industrial Relations Act 1991. 201 His Honour's observations in Bigg apply with equal force here. It is evident from a reading of the Royal Commission transcripts that the questioning of witnesses was completely inadequate for the purpose of determining the guilt or innocence of someone such as Mr Walpole in respect of allegations of perjury or conspiracy to pervert the course of justice. But, of course, the process was more inquisitorial than adversarial and, as Fisher P, observed not designed to determine the guilt or innocence of individuals. 202 In his affidavit in these proceedings Mr Walpole deposed: I am aware that the Royal Commissioner effectively did not permit cross-examination of witnesses at the Royal Commission. This meant, even as a person who was going to be the subject of adverse comment in the Royal Commission, that I was never given an opportunity to test or challenge the evidence of other witnesses such as Selewski or perjured and corrupt police officers. That evidence was essentially unchallenged. 203 Further, as I noted earlier, there were quite limited rights in the Police Royal Commission to cross examine and the Royal Commissioner made it clear that the usual rules applying to jury trials did not apply, including the rules in Jones v Dunkel (1959) 101 CLR 298 and Brown v Dunn (1894) 6 R 67 (HL). 204 For the reasons I earlier explained when discussing the evidence, none of those who gave evidence in the Police Royal Commission adverse to Mr Walpole were called by the respondent in these proceedings and made available for cross-examination. In the absence of any opportunity to have properly tested by cross-examination the evidence against Mr Walpole, for this reason alone and quite apart from its general unreliability as earlier discussed, very little weight can be attached to the adverse Royal Commission evidence. 205 When one distils the respondent's reasons for constructively dismissing Mr Walpole and subsequently refusing to reinstate or re-employ him, in so far as those reasons rely on the evidence in the Police Royal Commission, they depend largely on the evidence relating to the "first arrest" of Mr Selewski taking place on a dirt road in darkness near Clarendon. And that this evidence, being contrary to the evidence of Mr Oswald and Mr Walpole, who said that they were not aware of this "first arrest" and who gave evidence of Mr Selewski being apprehended at Lot 97 Castlereagh Road, meant in the respondent's view that Mr Walpole was involved in a conspiracy with corrupt officers and perjured himself at the Selewski trial and at the Police Royal Commission. 206 In none of the reviews into Mr Walpole's case since the Full Bench gave its decision in Oswald in March 1999, other than that carried out by Superintendent Seddon, was any proper consideration given to the alternative scenarios posited by the Full Bench in that case. Either of those scenarios is plausible and both illustrate the innocence of Mr Walpole if either scenario was, in fact, what occurred. 207 In any event, for the reasons I have given in this decision, there is no proper basis for accepting the versions of the corrupt officers, Mr Selewski, Ms Haxton or Ms Potter in preference to the evidence of Oswald and Walpole in relation to the "first arrest". Nor is there any proper basis for accepting the versions of either Selewski or WS4 in preference to the evidence of Oswald and Walpole in relation to what occurred at the gate to Lot 97. 208 It follows that Acting Commissioner Taylor had no proper basis, including no proper evidentiary basis, for issuing a notice under s 181B upon Mr Walpole in August 1996 and Commissioner Ryan had no proper basis for issuing the notice under s 181D in May 1997 (even if the notices had contained properly framed allegations), thereby causing Mr Walpole's resignation. 209 Accordingly, the charges against Mr Walpole are not capable of being made out and I, therefore, find that the constructive dismissal of Mr Walpole was unreasonable and unjust. Association's additional grounds 210 The Association relied on additional grounds to prove the dismissal of Mr Walpole was harsh, unreasonable and unjust. These were procedural unfairness and the inconsistent treatment of Mr Walpole compared to Detective Senior Constable Potter and a Senior Constable Hinshelwood, who was re-employed by the respondent despite a conviction of making a false statement to the Police Royal Commission. The Association also relies on Mr Walpole's character and his record. 211 As to procedural unfairness, I do not propose to address this at any length because I am completely satisfied that the dismissal of Mr Walpole was substantively unfair. What I would say, however, is that within the respondent and its advisers a mindset appears to have developed that Walpole must have been guilty of conspiring to pervert the course of justice and perjury because a number of corrupt police officers rolled over in the Police Royal Commission and gave evidence, corroborated by a career criminal, that supported that conclusion. That mindset seems to have prevailed over proper regard for the need for due process in the case of Mr Walpole. 212 It seems to have been the belief that because these officers rolled over they must have, henceforth, been truthful and there was no need to drill down any further by considering, objectively, the corroboration that existed between Mr Walpole and Mr Oswald, or the significant inconsistencies between the versions given by WS4 and Selewski, or the absence of any evidence of an arrangement or discussion between any of the corrupt officers and Walpole that might suggest a conspiracy, or the absence of any evidence that Mr Walpole knew of the "first arrest", or the unsatisfactory nature of the evidence given by Ms Potter, or that there might be some other explanation for what occurred on 10 December 1990 as posited by the Full Bench in Oswald. 213 Once this mindset took hold, the process that led to Mr Walpole's resignation was guided accordingly and left little room for objectivity; it was biased against the interests of Mr Walpole because it is apparent that the individual interests of Mr Walpole were subordinated to the principal objective of getting rid of, and being seen to get rid of, corrupt officers. Moreover, the process involved serious flaws. For example, Commander Brammer and Assistant Commissioner Nixon based their recommendations to proceed with the removal process on factually wrong allegations. 214 In relation to the Association's submissions regarding unequal treatment, it is open to the Commission to come to the conclusion that this provides the basis for a finding of unjust treatment: Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333 at [188]; Federated Municipal & Shire Council Employees' Union of Australia, NSW Division v Liverpool City Council (1988) 25 IR 246 at 249; Pastrycooks (No 3) at 98. I am unable to understand on the evidence in these proceedings how it came to be that Mr Walpole was pursued with such single mindedness but Ms Potter was never served with a notice under s 181B or s 181D. If Mr Walpole's evidence in the Police Royal Commission was such as to attract the threat of removal there is no basis I can see to differentiate Ms Potter in that respect. Of course, I am not suggesting Ms Potter should have been served with a notice, as Mr Walpole should not have been, but the unequal treatment of the two officers reinforces my conclusion that the dismissal of Mr Walpole was unjust. 215 In McCabe, John Stewart v New South Wales Police Service [1996] NSWIRComm 105 the Full Bench of the Commission said it was relevant and material, amongst other things, that many police officers, including senior ones, had expressed favourable opinions about an officer's attitude, conduct and performance of duties when considering whether a dismissal was unfair. In this respect, the evidence was that: (a) Walpole was a career police officer with 16 years' experience that included commendations; (b) Walpole was an officer of seemingly unblemished reputation whose Internal Affairs record was good; (c) Walpole was one of few officers who witnessed corruption and previously had reported two officers to internal security; (d) Line Commanders said his work performance was highly satisfactory; (e) Superintendent Kaldas had no reason to question his honesty or integrity; (f) Retired Detective Inspector Cheers stated that Mr Walpole was a "model of professionalism and integrity". Mr Cheers said Mr Walpole was "one of the most competent and professional officers I have had the opportunity to work with in my many years with NSW Police"; (g) Inspector Oswald never had any reason to question his honesty or integrity; (h) Retired Senior Sergeant Ferguson stated that Mr Walpole was a person of the highest integrity and the allegations of perjury would be entirely out of character; (i) Retired Detective Sergeant Shiels found Mr Walpole to be a person of good character and of the highest integrity; (j) After leaving the NSW Police, in just over two years, Walpole went from a casual driver to number three in charge of a company with over 100 employees. He was recommended by his employer as one of those rare "must have employees". 216 In Shop, Distributive & Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 at 2 the Full Bench of the Commission in Court Session held that evidence of good character should be received as tending to prove that the employee should be believed on her oath and that an inference of dishonesty should less readily be inferred against the employee. It is clearly the case here that Mr Walpole is a person of good character and his evidence should be believed. There was no evidence to the contrary. FORM OF RELIEF 217 In its submissions in February 2005 on jurisdictional objections the Association stated: In arbitrating an industrial dispute that is listed for substantive hearing in the two weeks commencing on 16 May 2005, the Police Association of NSW ("the Association") will ask this Commission under the Industrial Relations Act 1996 (" IR Act 1996") to make a recommendation (s 136(1)(a)), make an award (s 136(1)(b)), make a dispute order to reinstate or re-employ the employee whose dismissal resulted in the industrial dispute (ss 136(1)(c) and 137(b)), or make any other kind of order that the Commission is authorised to make (s 136(1)(d)). The ultimate means of resolving this dispute will depend on what the Commission considers appropriate after hearing the substantive merits. 218 In these proceedings the Association proposed the making of a reinstatement award pursuant to s 136(1)(b) of the Industrial Relations Act. I have found there is no jurisdiction to make such an award but it is pertinent to take notice of the nature of the relief sought in that proposed award: 2 Substantive Reinstatement and Conditions of Reinstatement 21. The Commissioner of police and NSW Police shall reinstate Wayne John Walpole in its employ in his former position of Detective Sergeant operating from a Western Sydney Branch on and from 1 July 2004. 2.2 The service of Mr Walpole shall be continuous for all purposes of his employment and shall be deemed not to have been broken or interrupted by reason of his forced resignation on 26 May 1997. 2.3 Mr Walpole shall not be entitled to payment of wages lost by him by reason of his forced resignation during the period 1 July 2004 to [ insert ] 219 Mr Walpole has been absent from NSW Police for eight years now. He may have lost skills and his knowledge of current policing policies and procedures would obviously be lacking. He would not, in my opinion, be immediately capable of being deployed in a front line role of the type he filled at the time he was dismissed. 220 Any hesitation I might have about the reinstatement of Mr Walpole is overcome by a number of other considerations. Firstly, as Dey J observed in Public Service Association of New South Wales and Public Service Board; re Ristau (No 2) [1979] AR (NSW) 357 at 373, "To uphold the dismissal when the basis of that action was not established, would be to endorse his having been treated unfairly." Mr Walpole was treated unfairly; there was no basis for the dismissal. Secondly, I have considered the practicality of Mr Walpole's reinstatement. He may not be as physically fit as he should be for the role of a police officer but he has indicated a commitment to overcoming that problem. Further, his loss of skills and knowledge can be overcome with appropriate training and supervision and the provision of information. That this can be done is evident from the rejoinee program where officers with more than 10 years' absence have successfully rejoined. Until Mr Walpole regains the necessary skills and knowledge, as I have said, he should not be deployed in a front line role. That does not mean to say NSW Police cannot take immediate advantage of Mr Walpole's investigative skills gained over a long period as a detective. 221 Thirdly, to provide a form of relief short of reinstatement would be an unjust outcome given that Mr Oswald was reinstated and now holds the rank of Inspector. I note so too does Ms Webb. 222 Fourthly, this has been a most unusual case. Never have I witnessed such dogged pursuit of reinstatement by a person who considered he had been wronged and with such strong support from his union and, in particular, Mr Remfrey. This was in circumstances where Mr Walpole has achieved a senior managerial position in the private sector that provides a salary greater than that which he will receive as a Detective Sergeant. It reveals an extraordinary dedication to a particular vocation in life - that of police officer. 223 Fifthly, the primary form of relief under Part 6 of Ch 2 of the Industrial Relations Act is reinstatement. It is only appropriate to consider other forms of relief if reinstatement is not practicable. In this case I consider reinstatement is practicable and any inconvenience the respondent might experience is outweighed by the need to ensure justice is done. 224 I, therefore, propose to order the reinstatement of Mr Walpole on certain conditions as authorised by s 89(8) of the Industrial Relations Act. SUMMARY OF FINDINGS 225 My findings in this matter may be summarised as follows: (1) There is no relevant inconsistency between the Police Act and the Industrial Relations Act that would render ineffective an order made under s 89 of the Industrial Relations Act and pursuant to the provisions of s 136(1)(d) of that Act. (2) Nothing in s 405 of the Industrial Relations Act prevents the making of a recommendation or direction under s 136(1)(a) of the Industrial Relations Act in respect of the reinstatement or re-employment of a police officer. (3) Any award made under Pt 1 of Ch 2 of the Industrial Relations Act and pursuant to s 136(1)(b) of that Act and any order made under Pt 2 of Ch 2 and pursuant to s 136(1)(c) reinstating or re-employing a police officer to his or her former position would be rendered ineffective by the provisions of s 405(2) of the Industrial Relations Act. (4) The provisions of Pt 6 of the Police Act are not a bar to the Commission exercising jurisdiction in respect of the claim for the reinstatement or re-employment of Mr Walpole. (5) Mr Walpole was constructively dismissed from his employment with the NSW Police Service on 24 May 1997. (6) The constructive dismissal of Mr Walpole was unreasonable and unjust. (7) Mr Walpole should be reinstated on certain conditions. ORDERS 226 I make the following orders: 1 The Commissioner of Police and NSW Police shall reinstate Wayne John Walpole in its employ in the role of detective with the rank of sergeant on a date to be agreed or a date that coincides with the expiration of the period of notice required to be given by Mr Walpole under his existing contract of employment, whichever is the sooner. 2 The Commissioner of Police and NSW Police will confer with the Association for the purpose of putting in place training and other arrangements that will enable Mr Walpole to resume, as soon as practicable, a role similar to that which he had immediately prior to his suspension in February 1997 or some other agreed role. 3 The service of Mr Walpole shall be continuous for all purposes of his employment and shall be deemed not to have been broken or interrupted by reason of his constructive dismissal on 26 May 1997. 4 Mr Walpole shall not be entitled to payment of wages lost by him by reason of his constructive dismissal. 5 Liberty to apply on reasonable notice if any dispute, difficulty or question arises in relation to the foregoing orders. ____________________________________ AMENDMENTS HISTORY: 27/07/2005 - Minor typographical error. - Paragraph(s) 63 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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