Industrial Relations Commission of New South Wales CITATION: Lance Goldsmith and Commissioner of Police [2008] NSWIRComm 170 Applicant: PARTIES: Lance Goldsmith Respondent: Commissioner of Police FILE NUMBER(S): IRC23 of 2007 CORAM: Kavanagh J CATCHWORDS: s181E - failure of Commissioner to comply with a Memorandum of Agreement for one year - terms of Memorandum of Agreement entered as Orders LEGISLATION CITED: Police Service Act 1990 Industrial Relations Act 1996 HEARING DATES: 15/09/08 EXTEMPORE JUDGMENT DATE: 15 September 2008 Applicant: Solicitors Mr E.L. Oates Oates & Smith LEGAL REPRESENTATIVES: Respondent: Mr R. Warren of counsel Solicitors: Mr D. Lloyd/Ms K. Srdanovic Blake Dawson JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Kavanagh J Monday 15 September 2008 Matter No IRC 23 of 2007 LANCE GOLDSMITH AND COMMISSIONER OF POLICE Application by Lance Goldsmith for review of an order under s181E of the Police Act 1990 EX TEMPORE DECISION [2008] NSWIRComm 170 1 HER HONOUR: I have before me an application under s174 of the Industrial Relations Act 1996. Section 174 states: 174 Powers when application settled by conciliation If a matter that is the subject of an application to the Commission under this Act is settled by conciliation, the Commission may: (a) dismiss the application, or (b) make an order on the agreed terms for settlement. 2 Mr E.L. Oates, solicitor, on behalf of the applicant, Lance Goldsmith, has filed an Application for a Review of an Order under s181E of the Police Act 1990. In conciliation procedures related to the application, a Memorandum of Agreement was signed on 6 September 2007 on behalf of Mr Goldsmith and on behalf of the Commissioner of Police. The applicant asserts the terms of the Memorandum have, at this stage, not been complied with by the Commissioner for over one year. 3 The Memorandum of Agreement reads: The Parties agree, subject to approval by the Commission, that this matter be stood over generally, or to a date fixed by the Commission, on the following basis: 1. The Applicant will be reinstated for the sole purpose of enabling an Application for a medical discharge to be submitted. 2. The Applicant shall apply for medical discharge within twenty-eight (28) days from the date he is advised of reinstatement. 3. During the period of reinstatement the Applicant agrees that he has no entitlement to receive benefits or pay and will not be allocated to active duty. 4. If the Applicant does not apply for medical discharge within twenty-eight (28) days from the date he is advised of his reinstatement, or if his medical discharge application is refused, then the reinstatement will be rescinded and the current proceedings will be restored to the list. 4 Since this Memorandum of Agreement was entered into this matter has been listed for mention in the Commission on 18 March 2008, 12 May 2008, 15 July 2008, 15 August 2008 and 5 September 2008. I have taken the trouble of going back to the transcript of those mentions to see the history of this matter. 5 On 18 March 2008, Mr M. Dunne appeared for the Commissioner of Police and said: The applicant in these proceedings is what is colloquially known as a post 88 employee, with a new or different scheme in place. The medical discharge committee met in February to consider the application. However, there were certain issues they needed to further consideration and your Honour might recall an earlier report back was adjourned ... An inquiry yesterday revealed the committee had not concluded its inquiries ... we would ask for a date in early May. The matter was then stood over to 12 May 2008. 6 On 12 May 2008, Mr Dunne again appeared for the respondent. By agreement between the parties, the applicant's solicitor, Ms S. Wood reported: "We are still waiting for the applicant's medical discharge". Mr Dunne agreed: ". . . The date we have discussed for a report back is 7 July. . . ." The matter went over to 15 July 2008. 7 On 15 July 2008, Mr Dunne reported to the Commission: . . . I seek an indulgence of one final adjournment so that we can make inquiries and hopefully the matter can resolve itself. . . . His Honour: What is causing the delay exactly? Dunne: The applicant has filed a form with the Committee. That Committee is the Police Officers Death and Disability Committee ... The application has been before the Committee. Inquiries from both my side and Mr Oates' side have been unable to reveal any indication as to a result ... Neither of the parties before your Honour have been able to ascertain what the situation is. I sent a letter last week indicating that I thought that we had just about come to the end of the indulgence. I don't have a response to that yet. . . . There was then some discussion about the Committee and his Honour held: What I would ask you to do is communicate with this Committee and say to them that unless we have a decision by 19 August then the Commission itself will take steps to inquire of the Committee directly what is the cause of the delay. If that means bringing the members of the Committee before me, I will do that. It does seem to me that the Committee has had ample time to come to a decision. The matter was then stood over to 15 August 2008. 8 On 15 August 2008, Mr Dunne again appeared for the Commissioner of Police and said to the Court: . . . It appears I have been inadvertently misleading your Honour and my friend in relation to what has been the status of the applicant's medical discharge application over previous occasions in court. In fact the matter has never been before the medical discharge panel committee. What has been transpiring is a precursor to that is the preparation of a report which needs to establish certain criteria have been met before it goes to the committee ... I can advise that report has been completed. It has been forwarded to the committee. The next committee meeting is 4 September and I am instructed to ensure the Court and my friend the matter will be considered and dealt with on that occasion. The matter was stood over to 5 September 2008. 9 On 5 September 2008, Mr D. Lloyd, Solicitor, then appeared for the Commissioner of Police. He told the Commission: ... I am instructed that the application for medical discharge did not proceed to finalisation before that panel and the application has instead been considered by what is known as the executive level of the police which is those persons that report to the Commissioner, so the Deputy Commissioner. The reason the matter has been now considered at the executive level rather than by the panel is because the Police apprehends there may be some expectation on the part of the applicant that arising out of any medical discharge some payment may become due under a particular award and that is the Crown Employees (Police Officer - Death and Disability) Award 2005. That is an award which I think your Honour is familiar with, from when the award was first made. I am instructed by the Police that in reaching a conciliated outcome last year in this matter the respondent did not understand any such payments would arise from a medical discharge in the present circumstances and it was not the intention of the conciliated outcome as far as the Police are concerned that such a payment could arise. It is in view of that issue the application has not proceeded to finalisation before the Medical Discharge Review Panel, at the direction of the executive of the police. We would seek to clarify this particular issue as to the possible application of that award in the circumstances. I have mentioned this to my friend only this morning. It is not something he was on notice of. I only received my instructions in relation to that matter yesterday. We would seek to clarify that particular issue and subject to that, that will, we say, determine the further processing of the application and how it should be dealt with. That is the issue that has arisen and explains the position that the Police have taken in the matter to date. I accept it is an unusual situation to be in but it concerns really the intentions of the parties in reaching a conciliated outcome last year and what might flow from any medical discharge. His Honour then said: It is difficult to avoid the conclusion, Mr Lloyd, that your client is guilty of gross delay in the matter. This is an application that was filed in January 2007. It is now September 2008. . . . Mr E. Oates for the applicant was then asked what was his view of the circumstance and he replied to the Commission: . . . I have written to them on numerous occasions. On each occasion I have written it has been implicit that I am writing about a consideration by the Death and Disability Panel...My friend tells me that it has been withdrawn from the panel. . . . So it was within the Commissioner's power at the time the conciliation was struck to immediately discharge my client medically unfit from the police. He should have done that but he did not and if he had done that it may have been that the Death and Disability Scheme would not apply. . . . Mr Lloyd then said to the Commission: I can confirm that matters of medical discharge are for the Commissioner of Police to determine. It is the Medical Discharge Review Panel, it is not the Death and Disability panel. . . . and continued: ... I am instructed that the Commissioner is not willing or not able to medically discharge Mr Goldsmith. If the payment issue was not in contemplation, then the matter could be looked at afresh, I am told. . . . 10 Mr R. Warren, of Counsel, appears today, for the Commissioner of Police. He has informed the Commission the Commissioner today intends to rescind the reinstatement of Mr Goldsmith. He further requests the s174 application be stood over and the Commissioner have an opportunity to file a Notice of Motion and supporting affidavit. 11 It is clear from my reading of the transcript the Commissioner is asserting he agreed to a settlement of the matter by way of referral to a Medical Panel for a consideration of the medical retirement of the applicant. However, the Commissioner asserts he did not realise the consequences of the terms of the Agreement. The Commissioner therefore has not complied with the terms of the Agreement. The applicant has complied with the terms of the Agreement. I am persuaded the terms of the Agreement are indicative of a settlement of the application by conciliation. 12 However, if I allow this matter to go beyond today there will be a further legal technicality raised as to the effect of a rescinding of the re-instatement of the applicant which occurred in accordance with the terms of the Memorandum of Agreement. 13 In the circumstances, therefore, I order the terms of the Memorandum of Agreement become an Order of the Commission. I make the following Orders: 1. The Applicant will be reinstated for the sole purpose of enabling an Application for a medical discharge to be submitted. 2. The Applicant shall apply for medical discharge within twenty-eight, (28) days from the date he is advised of reinstatement. 3. During the period of reinstatement the Applicant agrees that he has no entitlement to receive benefits or pay and will not be allocated to active duty. 4. If the Applicant does not apply for medical discharge within twenty-eight (28) from the date he is advised of his reinstatement, or if his medical discharge application is refused, then the reinstatement will be rescinded and the current proceedings will be restored to the list. 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.