Industrial Relations Commission of New South Wales CITATION : Police Association v NSW Police [2004] NSWIRComm 256 NOTIFIER Police Association of New South Wales PARTIES : RESPONDENT New South Wales Police FILE NUMBER: IRC 3877 of 2004 CORAM: Boland J CATCHWORDS : Industrial Dispute - Notification of dispute under section 130 of Industrial Relations Act - Police officer given notice under s 181D(3)(a) of Police Service Act 1990 and subsequently resigned - Allegations of corruption - Jurisdiction - Whether subject matter of dispute notification constituted an industrial dispute - Whether relevant provisions of Police Service Act prevailed over provisions in ch 3 Pt 1 of Industrial Relations Act - Whether provisions of ch 2 Pt 6 of Industrial Relations Act constituted an exclusive code for dealing with dismissals - Whether Commission should exercise its discretion to deal with matter - s 130 dispute to proceed to conciliation LEGISLATION CITED : Industrial Relations Act 1996 Police Service Act 1990 s 181D(6) and (7) Oswald v New South Wales Police Service (1999) 90 IR 42 CASES CITED : Taudevin v Egis Consulting Australia Pty Limited (2000) 97 IR 165 Woolstar Pty Limited v Federated Storemen and Packers Union of Australia (New South Wales Branch) (1992) 45 IR 39 Younan-Sedrak v State of New South Wales (Department of Public Works and Services) [1999] NSWIRComm 371 HEARING DATES: 08/23/2003 DATE OF JUDGMENT: 09/01/2004 NOTIFIER Mr S Crawshaw SC with Mr B Docking of counsel Solicitor: Mr A Howell Jones Staff & Co LEGAL REPRESENTATIVES: RESPONDENT Mr P Skinner of counsel Solicitor: Mr E Lynch New South Wales Police JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BOLAND J Wednesday 1 September 2004 Matter No IRC 3877 of 2004 Re 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 Walpole DECISION [2004] NSWIRComm 256 1 Wayne John Walpole was employed by NSW Police as a 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 grounds relied upon to remove Mr Walpole concerned allegations of corrupt conduct stemming back to an incident in 1990 and 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 he had been advised 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. The Police Association of New South Wales ("the Association"), on behalf of Mr Walpole, sought a recommendation from the Commission that Mr Walpole be reinstated in his employment. 2 The background to the matter is set out in the dispute notification: 1 Mr Walpole entered New South Wales Police (then the Police Service of New South Wales) as a trainee on 19 January, 1981 and was attested as a Probationary Constable on 6 April, 1981. Mr Walpole's 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. 2 In December, 1990, Mr Walpole was attached to the Armed Hold-Up Unit of the North West Region Major Crime Squad. On 10 December, 1990, Mr Walpole had finished his day's work but was recalled to duty to provide specialist back-up to the Drug Unit of the North West Region Major Crime Squad. During that operation, Mr George John Selewski was arrested. 3 On 9 May, 1994, Mr Walpole gave evidence at Mr Selewski's trial. 4 On 13 June, 1996 Mr Walpole gave evidence before the Police Royal Commission. 5 Mr Walpole's evidence on both occasions was that on 10 December, 1990, Detective Senior Constable Young, Detective Sergeant Oswald and Mr Walpole had been waiting in a police vehicle outside 97 Castlereagh Road Castlereagh and followed Mr Selewski's car into the driveway of that property. When Mr Selewski's car stopped at the gate to the property Detective Sergeant Oswald and Detective Senior Constable Young got out of the car, leaving Mr Walpole in the car and arrested Mr Selewski. 6 Mr Selewski claimed that he was arrested several hours earlier at Clarendon, which is twenty minutes drive from Castlereagh. The timing and location of Mr Selewski's arrest became a crucial issue at Mr Selewski's trial. Other officers, including Detective Sergeant Young, initially supported Mr Walpole's version of events in the evidence they gave at Mr Selewski's trial. However, Detective Sergeant Young and other police officers who were later found by the Police Royal Commission to be corrupt in relation to unrelated matters subsequently gave evidence to the Police Royal Commission which corroborated Mr Selewski's version of the arrest. 7 On 6 August, 1996, Mr Walpole was served with a Notice under what was then section 181B of the Police Service Act, 1990. The grounds specified in the section 181B Notice were as follows: (i) 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 Detective Peter Young apprehended Selewski outside premises at Lot 97 Castlereagh Road, Castlereagh on 10 December, 1990 knowing that statement to be false. (ii) 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 Detective Peter Young apprehended Selewski outside premises at Lot 97 Castlereagh Road, Castlereagh on 10 December, 1990 knowing such evidence to be false. (iii) Evidence that you committed perjury in your evidence before the Royal Commission into the New South Wales Police Service on 13 June, 1996 in that you gave evidence that you and Detective Peter Young apprehended George Selewski on 10 December, 1990 outside premises at Lot 97 Castlereagh Road, Castlereagh knowing such evidence to be false. 8 Mr Walpole has at all times denied the allegations. 9 The grounds contained a typographical error in that they alleged that Mr Walpole had claimed that Mr Walpole and Detective Peter Young apprehended Mr Selewski when in fact Mr Walpole claimed that it was Detective Sergeant Oswald and Detective Peter Young who apprehended Mr Selewski. 10 Detective Sergeant Oswald received a section 181B Notice in identical terms to that served upon Mr Walpole. 11 Mr Walpole was suspended from duty on 8 August, 1996. 12 Mr Walpole responded to the section 181B Notice through his solicitors on 27 August 1996. 13 Mr Walpole and Detective Sergeant Oswald were both dismissed on 29 August, 1996. 14 Mr Walpole and Detective Sergeant Oswald both lodged Unfair Dismissal Applications. Mr Walpole's Application was listed for hearing before His Honour Justice Fisher in the Industrial Relations Commission of New South Wales on 20 February, 1997. 15 The effect of the typographical error referred to in paragraph 9 above was that New South Wales Police was unable to prove its case against Mr Walpole as Mr Walpole had never stated that Mr Walpole and Detective Peter Young apprehended Mr Selewski. Consequently, New South Wales Police offered no evidence in the matter and by consent, Mr Walpole was reinstated to New South Wales Police backdated to 29 August, 1996. 16 On 26 February, 1997, Mr Walpole received a further Notice of Suspension. 17 On 1 May, 1997, Mr Walpole was served with a Notice under section 181D(3) (a) of the Police Service Act, 1990 which replicated the defective grounds in the section 181B Notice dated 6 August, 1996 and contained two (2) additional grounds, namely: (i) You clearly stated in your evidence at the Royal Commission that you were not involved in the stopping of any vehicle relating to the arrest of George Selewski, however, other evidence was given to the contrary. (ii) 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 cheek bone. 18 The last allegation relating to Mr Denney was made by Detective Eastwood during Detective Eastwood's evidence to the Royal Commission on 8 March, 1996. The allegations were never put to Mr Walpole when Mr Walpole gave evidence to the Royal Commission on 13 June, 1996. Mr Walpole denies the allegation and notes that Mr Denney did not sustain any injuries consistent with the alleged assault. At the time of giving evidence, Detective Eastwood admitted he had previously perjured himself and supplied drugs in commercial quantities and had attempted to take his own life just days prior to giving evidence. 19 By May, 1997, the Police Service Act, 1990 had been amended such that the only challenge available to officers removed under section 181D of the Police Service Act was by way of judicial review by the Supreme Court. Mr Walpole was advised that there was no basis to challenge the merits of any removal and as such, Mr Walpole felt that he had no choice but to tender his resignation on 26 May, 1997 with effect from 24 June, 1997. 20 In the meantime, Mr Oswald's Unfair Dismissal application was heard by His Honour Justice Fisher . On 10 July, 1997, His Honour dismissed Mr Oswald's application. Mr Oswald appealed to the Full Bench of the Industrial Relations Commission of New South Wales. By decision dated 11 March, 1999, Mr Oswald was reinstated to the Police Service with continuity of service and full back pay. 21 Following representations to Mr Peter Ryan, then Commissioner of Police by Mr Peter Remfrey, Secretary of the Police Association, Detective Superintendent K J Seddon was appointed to review the circumstances surrounding Mr Walpole's resignation. 22 On 12 August, 2000, Detective Superintendent K J Seddon issued a report reviewing the circumstances surrounding the resignation of Mr Walpole and recommending that Mr Walpole be reinstated to the NSW Police Service in his former position, that his period of employment be taken not to have been broken by the termination and that Mr Walpole be paid the remuneration he would have received but for having left the Service before being reinstated, less remuneration earned by Mr Walpole from other employment during that period. 23 Mr Ryan declined to accept Mr Seddon's recommendations and wrote to the Police Association on 19 January, 2001 advising Mr Remfrey of his decision in this regard. 24 By letter dated 24 January, 2001, the Police Association requested that Mr Ryan make available the nature of the advice upon which Mr Ryan's decision was based, given the Police Association's concern that poor legal advice provided to acting Commissioner Taylor who made the decision to dismiss Mr Walpole contributed to the situation which led to Mr Walpole's resignation. 25 As the Police Association did not receive a response to its letter dated 24 January, 2001, it wrote a further letter to Mr Ryan on 17 August, 2001 reiterating its request for a copy of the legal advice. Mr Ryan declined to provide a copy of the advice on the ground that it was protected by legal professional privilege by letter to the Police Association dated 31 August, 2001. 26 By an undated letter, Michael N Holmes, General Manager of Court and Legal Services advised the Police Association in about May 2002 that he was instructed by Acting Commissioner Moroney to advise the Association of Mr Moroney's instructions that Counsel be briefed by the Office of Court and Legal Services to undertake a legal review of the circumstances surrounding Mr Walpole's resignation on 26 May, 1997. Mr Peter Skinner of Counsel was briefed to review the matter and made his report available to New South Wales Police on 30 July, 2002. On 3 September, 2002 that report was provided to the Police Association. 27 By letter dated 7 January, 2003, the Police Association wrote to the Honourable Michael Costa, then Minister for Police, requesting that the matter be finalised by way of a private arbitration on the basis that the Police Association would abide by the decision without prejudice or precedent. 28 By letter dated 28 March, 2003, Commissioner Ken Moroney declined to progress the matter by private arbitration. 29 Complaints have been made on behalf of Mr Walpole to both the New South Wales Ombudsman and the Police Integrity Commission which have failed to resolve the matter. 30 The Police Association contends that the conduct of New South Wales Police in relation to the dismissal, reinstatement and suspension of Mr Walpole has resulted in Mr Walpole being unable to challenge the allegations which brought Mr Walpole's career as a Police Officer to an end. The Police Association is confident that it can establish that the termination of Mr Walpole's employment was harsh, unjust and unreasonable, particularly with regard to the findings of the Full Bench in Stephen Francis Oswald –v- New South Wales Police Service [1999] NSWIRComm 84 (11 March 1999). 3 As I have noted, in the context of conciliation proceedings the Association has sought a recommendation that the NSW Police reinstate Mr Walpole. Mr P Skinner of counsel for the Commissioner of Police contended that the Commission had no power to make such a recommendation because the Commission was without jurisdiction. It was submitted, firstly, that the subject matter of the dispute notification was not an industrial dispute within the meaning of the Industrial Relations Act 1996. Secondly, it was submitted that ch 2 Pt 6 (unfair dismissals) of that Act represented an exclusive code in relation to claims for relief arising from termination of employment. Thirdly, it was submitted that at the time Mr Walpole was given notice of his removal and resigned, s 181D(6) and (7) of the Police Service Act 1990 applied. These provisions were in the following terms: (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 the 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. 4 In any event, Mr Skinner submitted the Commissioner of Police had proper grounds for issuing the notice under s 181D on 1 May 1997 and, further, that the applicant's reliance on Oswald v New South Wales Police Service (1999) 90 IR 42 to the effect that Mr Walpole's circumstances were the same as that of the appellant in Oswald was misplaced because the circumstances there considered by the Full Bench were distinguishable from the present case. Consideration 5 As to the first jurisdictional objection, I do not consider it can be sustained. The Dictionary to the Act defines "industrial dispute" as follows: industrial dispute means a dispute (including a question or difficulty) about an industrial matter, and includes the following: (a) a demarcation dispute, (b) a threatened or likely industrial dispute, (c) a situation that is likely to give rise to an industrial dispute if preventative action is not taken. 6 "Industrial matters" is defined in s 6 of the Act and includes the following examples: 6 Definition of industrial matters (1) General definition In this Act, industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry. (2) Examples Examples of industrial matters are as follows: (a) the employment of persons in any industry (including the employment of minors, trainees, apprentices and other classes of employees), … (e) the termination of employment of (or the refusal to employ) any person or class of persons in any industry 7 It seems to me that Mr Walpole's complaint is that the Commissioner of Police had no proper grounds for issuing the s 181D notice but having been served with the notice Mr Walpole was advised that there was no basis to challenge the merits of any removal. Mr Walpole felt that he had no choice but to tender his resignation. In other words, he was forced out of his employment with the Police Service on the basis of allegations that had no foundation in fact and now he wants to be reinstated after years of his Association attempting to achieve that outcome by various means but to no avail. 8 In my opinion, the subject matter of the dispute notification relates to an industrial matter that clearly involves a "question or difficulty" and constitutes a dispute; the Police Association disputes the refusal of the Commissioner of Police to reinstate or re-employ Mr Walpole. 9 Mr Skinner submitted, however, as I understood him, that the specific provisions of ch 2 Pt 6 of the Industrial Relations Act dealing with unfair dismissals, excluded the operation of the general provisions of the Act that might be said to enable the Commission to provide relief in respect of unfair dismissals, including the general provisions in ch 3 Pt 1 dealing with industrial disputes. This proposition raises somewhat complicated questions of statutory interpretation reminiscent of those matters considered in Woolstar Pty Limited v Federated Storemen and Packers Union of Australia (New South Wales Branch) (1992) 45 IR 39. 10 It may or may not be that Mr Skinner is correct to the extent that an application for relief in relation to the dismissal of an individual employee must be brought under the provisions of ch 2 Pt 6 of the Act and that in arbitration proceedings relief in relation to dismissal under ch 3 Pt 1 is only available in the terms provided for by s 137(b) and (c). I do note, however, that s 136(1)(d) of the Act enables the Commission in arbitration proceedings to "make any other kind of order it is authorised to make (including an order made on an interim basis)", which may include an order under ch 2 Pt 6. 11 In other words, it may be arguable that the Commission's power to order the reinstatement of an employee who claims he or she was unfairly dismissed is limited to those powers available under ch 2 Pt 6 of the Act (subject to the provisions of s 137(b) and (c) and possibly s 136(1)(d)). However, if I were to determine this aspect of the respondent's jurisdictional objections I would require much more detailed submissions from both parties than I have hitherto received. 12 For the present, however, I need not decide this issue because all that the applicant seeks at this stage is for the Commission to conciliate the matter and make a recommendation (or direction) that Mr Walpole be reinstated or re-employed. As I have found, I have before me an industrial dispute and I am under an obligation to first attempt to resolve it by conciliation: Section 133. See also Younan-Sedrak v State of New South Wales [1999] NSWIRComm 371; Taudevin v Egis Consulting Australia Pty Limited (2000) 97 IR 165. I do not consider there is any jurisdictional bar to me conciliating and, if circumstances require it, making a recommendation or giving a direction pursuant to s 134(2) of the Act. 13 Mr Skinner's third jurisdictional objection was that at the time Mr Walpole was given notice of his removal and resigned, s 181D(6) and (7) of the Police Service Act 1990 applied. As that Act at the relevant time precluded the Commission from reviewing or considering any decision or order of the Commissioner under s 181D it was submitted the Commission could not now do so. 14 The difficulty Mr Skinner faces in succeeding with this submission is that Mr Walpole resigned after the notice was issued under s 181D(3)(a) and before any order was made removing him from the Police Service. As to the reference to "decision" in s 181D(7), I consider it refers to s 181D(4), which states: (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the Police Service. 15 In other words, having issued a notice under s 181D(3)(a) and given consideration to any submissions under s 181D(3)(c), the Commissioner is required in the order to set out the reasons he or she has decided to remove the police officer. Thus, the reference to "decision" in s 181D(7) is a reference to the decision taken to remove the officer. This had not occurred up to the time Mr Walpole resigned and, indeed, no decision has ever been taken to remove Mr Walpole in the context of s 181D. The reference to "decision" in s 181D(7) is not a reference to a decision to issue a notice under s 181D(3)(a). 16 In my opinion, in the absence of any order or decision, s 181D(6) and (7) had no application and the Commission would not have been, and is not, precluded from attempting to resolve by conciliation an industrial dispute regarding reinstatement or re-employment of a police officer. In any event, s 181D was amended with effect from 26 June 1997, with the Industrial Relations Commission being given power to review any order under s 181D removing a police officer on the ground that the removal was harsh, unreasonable or unjust. Section 181D(6) was repealed and s 181D(7) was to apply except as provided by Division 1C of Pt 9 of what is now the Police Act 1990, that Division containing the Commission's powers to review any removal order. 17 Of course, in seeking relief it was not open to Mr Walpole to rely on the provisions of Division 1C of Pt 9 of the Police Act because no order had been made removing him from the Police Service. However, Division 1C of Pt 9 does not by its terms, or by inference, preclude the conciliation of the dispute that is before me. Moreover, s 218 of the Police Act provides: 218 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. 18 It may be necessary to read s 218 subject to the provisions in Division 1C of Pt 9 of the Police Act because the maxim generalia specialibus non derogant (general things do not derogate from special things) may be applicable. But plainly, there is no contradiction between the relevant provisions of the Police Act and those provisions of the Industrial Relations Act concerning the resolution of industrial disputes. It is the resolution of an industrial dispute that I am here concerned with. 19 It is a matter for the Commission's discretion as to whether it will convene a compulsory conference but if it does so it is required to first attempt to resolve the dispute by conciliation. The parties, helpfully, went to some lengths to provide me with the background to this dispute and the merits of their respective positions. Mr Skinner contended, in effect, that the applicant's position was without merit and I took it he was submitting that, in its discretion, the Commission should not proceed to deal with the notification. It is too early to make such a significant judgment, especially given the complexity of the background to this matter. 20 Accordingly, I propose to convene a compulsory conference of the parties where I will attempt to resolve the dispute by conciliation. My Associate will contact the parties and make the necessary arrangements regarding a convenient time and date. ______________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.