Industrial Relations Commission of New South Wales CITATION: Richards and Commissioner of Police (No 2) [2009] NSWIRComm 214 PARTIES: Shayne Richards (Applicant) Commissioner of Police (Respondent) FILE NUMBER(S): IRC 1919 of 2007 CORAM: Marks J CATCHWORDS: APPLICATION FOR REVIEW UNDER S 181E OF POLICE ACT 1990 - appropriate relief - earlier finding that removal was unreasonable and unjust - whether Commission should allow party to reopen case to adduce further evidence - onus - held parties compellable to furnish further evidence - reinstatement and reemployment impracticable - compensation awarded LEGISLATION CITED: Police Act 1990 - s 181D, s 181E, s 181F Industrial Relations Act 1996 - s 89, s 163, s164 Carlton and United Beverages Limited and Philip Brunt [2006] NSWIRComm 98 CASES CITED: Commissioner of Police v Goodwin [2008] NSWCA 345 Richards and Commissioner of Police [2009] NSWIRComm 137 HEARING DATES: 4 December 2009 DATE OF JUDGMENT: 18 December 2009 Mr A Metcalfe of counsel (Applicant) Solicitor: Walter Madden Jenkins LEGAL REPRESENTATIVES: Mr R Kenzie QC with Ms E Brus of counsel (Respondent) Solicitor Crown Solicitor JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Marks J Friday 18 December 2009 Matter No IRC 1919 of 2007 Shayne Richards and Commissioner of Police (No 2) Application for review of an order under s 181E of the Police Act 1990 DECISION [2009] NSWIRComm 214 1 These are proceedings brought by the applicant, Shayne Richards, against the respondent, Commissioner of Police, seeking relief from a decision made by the respondent to remove him as a police officer from the New South Wales Police Force. The application was brought under s 181D of the Police Act 1990. By decision given 18 August 2009, I held that the order for the removal of the applicant from the police force was unreasonable and unjust. See Richards and Commissioner of Police [2009] NSWIRComm 137 at [86]. I based my decision upon what I characterised as "a fundamental breach of the process established by s 181D" as adopted by the Commissioner in failing to allow the applicant an opportunity of responding to all of the grounds and reasons relied upon by the Commissioner in determining to remove him from the police force. 2 However, in my decision I expressed considerable doubt about the integrity of the applicant for reasons therein set out. 3 Consequent upon the findings that I made, it was necessary to determine what relief should be afforded to the applicant. That relief, in effect, was governed by the provisions of s 89 of the Industrial Relations Act 1996. At [103] and following, I discussed the proper approach to the application of the provisions of s 89 in the context of these proceedings and the manner in which s 89 should be applied. I observed that I was required to consider, firstly, whether the Commission's discretion might be determined in favour of the applicant by way of reinstatement, secondly, if I were to conclude that it would be impracticable to reinstate the applicant, whether an order should be made to reemploy him and, thirdly, if I were to determine that reemployment was impracticable, whether an order for the payment of compensation should be made in the applicant's favour. I concluded, after consideration of the evidence adduced in the proceedings that there was a lack of evidence before the Commission about the circumstances that attended the applicant's "former position" at the time that he was removed that precluded me from determining whether or not it was impracticable to order reinstatement to that position having regard, in particular, to findings which I had made and conclusions which I had drawn about the applicant's integrity. At [116] I said: [116] The difficulty that I face in determining this matter is that on the one hand I have grave concerns about whether the lack of integrity demonstrated by the applicant, as I have described it earlier in these reasons for decision, and on the other hand I have no relevant evidence about the circumstances which attend the applicant's current part-time duties, which have been described in evidence as a "desk job". If that part-time position allowed the applicant to access information and other sensitive material that was accessible by any officer of the New South Wales Police Force, or otherwise might involve the applicant in any operational matters that, for example, would require him to give evidence in court proceedings, then it is arguable that it would not be practicable to reinstate the applicant to that position. In those circumstances, it might be necessary to enquire as to whether or not the respondent has available any other position for the applicant in which it would not be impracticable to reemploy the applicant. Finally, questions of impracticability and reemployment may also be relevant in determining whether it might be appropriate to order the payment of compensation, as provided for in s 89(5) of the IR Act. Indeed, the respondent's submissions canvassed whether the payment of compensation might be an appropriate alternative in all the circumstances. Any consideration of such an order is, in my opinion, premature because I do not regard myself as being in a position to determine matters involving impracticability of reinstatement or matters going to reemployment. 4 I stood the proceedings over to allow the parties to have an opportunity of considering my reasons for decision and to address the Commission about the manner in which the proceedings should be progressed. 5 At the adjourned hearing, senior counsel for the Commissioner contended, in effect: 1. The proceedings were conducted on an adversarial basis and it would be inappropriate for the Commission to allow the applicant to seek to reopen his case so as to introduce any further evidence. 2. There was a public interest in ensuring the finality of litigation that militated against the reception of any further evidence. 3. The applicant at all times bore the onus of proof to prove his case, including the relevant relief that should be granted. 4. The Commission would, in effect, be interfering in the conduct of the proceedings by inviting the parties, and especially the applicant, to adduce additional evidence. 5. In any event, there was sufficient evidence before the Commission to enable appropriate findings to be made concerning relief. The Commissioner contended that any relief should be confined to the awarding of compensation because, as it was asserted, the findings going to lack of integrity, which I had found, would render it impracticable to either reinstate the applicant or order his reemployment. 6 Not unnaturally, the applicant took a contrary position to each of these submissions. 7 Although, in the end result, I intend making an order which ultimately is in accord with the submissions made on behalf of the Commissioner, there are several areas where I respectfully disagree with those submissions and it is important, in the public interest, that I set out my reasons, albeit that I can do so briefly. 8 There is, in my opinion, a marked distinction between ordinary civil litigation conducted before a civil court and unfair dismissal proceedings brought before this Commission. For reasons which are uncontroversial, proceedings brought by a former police officer under s 181D of the Police Act are conducted against the background that the relevant legal matrix, which applies to a review conducted under s 181E of that Act and the relief to be granted, is that which is contained within Part 6 of Chapter 2 of the Industrial Relations Act entitled "Unfair Dismissals". 9 Once a finding has been made that a removal was harsh, unreasonable or unjust, then the appropriate remedy by way of relief and the manner in which it is to be determined will be governed by the provisions of s 89. I referred to this matter and the application of s 89 at [104] of the principal decision. 10 The application of s 89 requires a consideration of what was the "former position" of the applicant and whether or not reinstatement is impracticable. If it is considered that reinstatement is impracticable, it is then necessary to consider whether or not reemployment "in another position that the employer has available" and which is "suitable" is impracticable. Finally, it is necessary to consider in all of those circumstances what might be an appropriate amount of compensation to be awarded. 11 I consider, on the basis of authority, that it is mandatory for the Commission to embark sequentially on a process of considering all of these matters in order to comply with the regime established by s 89. There is ample authority for such a proposition. I refer to the Full Bench decision in Carlton and United Beverages Limited and Philip Brunt [2006] NSWIRComm 98 and the cases referred to therein, commencing at [54]. In these circumstances, I consider it not only appropriate but also necessary for the Commission to call upon the parties to give consideration to the adducing of sufficient evidence to enable the Commission to consider the various matters which are required to be considered under s 89. 12 Furthermore, whilst there can be no doubt that the applicant bears the overall onus of demonstrating that an appropriate finding that the removal is harsh, unreasonable or unjust should be made, as is specifically adverted to in s 181F(2) of the Police Act, I have some doubt as to whether the same observation can be made concerning the application of s 89. This is because questions as to the impracticability of reinstatement and, especially, reemployment will necessarily involve a consideration of the circumstances of the employer, in this case the Commissioner. The Commissioner submitted that this applicant, a long-standing police officer, would have sufficient knowledge to either know or be able to adduce evidence about whether or not there was another position that the Commissioner had available which was suitable to the applicant. I respectfully disagree. In my opinion, the sequential enquiries that are required to be made, which are described in some detail in s 89, are predicated upon the basis of involvement by an employer in an examination of the factual circumstances against which the Commission is required to consider the three alternative types of relief which are referred to in the section. 13 In my opinion, the manner in which s 89 is framed and the examination which the Commission is required to carry out renders it not only permissible but, in relevant circumstances, appropriate for the Commission to require an employer to adduce evidence which is relevant to the matters to be considered under s 89. 14 In this latter regard, I refer to the provisions of s 164 of the Industrial Relations Act 1996, which are in the following terms: 164 Powers of Commission as to the production of evidence, perjury and contempt (1) The Commission may exercise the functions of the Supreme Court in relation to: (a) compelling the attendance of witnesses and examining them on oath or affirmation, or by use of a statutory declaration, and (b) compelling the production, discovery and inspection of records and other documents, and (c) compelling witnesses to answer questions which the Commission considers to be relevant in any proceeding before it, and (d) directing that a witness be prosecuted for perjury. (2) The Commission in Court Session may exercise the functions of the Supreme Court in relation to the apprehension, detention and punishment of persons guilty of contempt of the Commission (including disobedience of any order made by or process issuing out of the Commission). (3) Without limiting subsection (2), a judicial member may exercise the functions of the Supreme Court in relation to the commencement of proceedings for contempt of the Commission. 15 I also refer to the provisions of s 163 of the Industrial Relations Act and in particular s 163(1)(c), which are in the following terms: 163 Rules of evidence and legal formality (1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (2) However, the rules of evidence and other formal procedures of a superior court of record apply to the Commission in Court Session. 16 In connection with s 163(1)(c), I acknowledge that there is open to debate an argument about whether or not this sub-section is procedural only or is substantive in nature. 17 Although I acknowledge that proceedings of this kind are conducted in an adversarial manner, I am not persuaded that the same limitations as apply to the finality of the litigation process are necessarily appropriate to proceedings of this kind before an industrial tribunal. I refer, again, to the matters that are required to be considered by the Commission under s 89. 18 Furthermore, it seems to me that the stage reached in these proceedings at the time that I handed down my decision on 18 August 2009 may be compared, by analogy, to the processes undertaken by a court in criminal proceedings, in circumstances where a finding of guilt has been recorded. At that stage, a court is required to undertake a process to enable an appropriate sentence or penalty to be imposed. During that process, it is clear that a court is entitled to call for information and evidence which the court feels is necessary to enable the sentencing proceedings to be conducted in a proper manner. It is not uncommon for a judge to call for a pre-sentencing report of some kind. 19 In making these observations, I have not undertaken any examination of any kind of any authorities that have compared the functions and powers of an industrial tribunal with those of a court. To some extent, such an examination may be less than helpful because the processes and powers of an industrial tribunal will vary considerably depending upon the type of proceedings before it. As is obvious, unfair dismissal proceedings are more akin to the litigation process conducted by a court. 20 Mr Kenzie QC sought to rely on the judgment of the New South Court of Appeal in Commissioner of Police v Goodwin [2008] NSWCA 345. Those proceedings are capable of being distinguished from the proceedings with which this Commission is dealing. This is not a case of a judge, on his or her own initiative, suggesting that some other cause of action or approach to the litigation should be considered. In the circumstances of these proceedings, I have merely called for further consideration of the matter by both sides to enable the Commission to fulfil its statutory duty created by s 89. 21 There is another reason which militates against acceding to the approach contended for by the Commissioner. My decision was one for which neither party contended. The applicant submitted that in all the circumstances his removal was harsh, unreasonable or unjust including a consideration of the "merits" of his case. The applicant further submitted that there was a "technical" reason why he should succeed. The respondent denied that there was any justification in the technical argument advanced by the applicant and submitted that the applicant's merit case should fail based on a demonstrated lack of integrity. 22 In the end result, I found that the applicant's technical argument succeeded, as contended for by him, but expressed grave doubts concerning his integrity, as contended for by the Commissioner. I concluded that in all the circumstances, the process undertaken by the Commissioner was so tainted that I would be justified in finding that the applicant's removal was unreasonable and unjust. In these circumstances, I would not expect the parties to have been able to formulate alternative submissions about the precise relief that should be granted having regard to the number of variables comprised within an application under s 89. I am of the opinion that some leniency should be shown in considering whether any application to adduce further evidence, by way of the reopening of the respective cases of the parties, should be permitted. Indeed, as I have previously observed, it is my opinion that the parties, and especially the respondent, are compellable to furnish such further information or evidence which will enable the Commission to discharge its statutory duties under s 89. 23 As I have said, the Commissioner declined to provide any further evidence in the proceedings. The applicant applied to reopen his case by requesting that the Commission accept a statement made by him on 16 November 2009. I agreed to allow him to reopen his case because I considered that it was appropriate to do so in all the circumstances. They include the matters that I have previously discussed, my reasoning hopefully being obvious from the various observations which I have made. 24 In his further statement, the applicant said that at the time that he was suspended from duty in September 2006, he was working six hours a day for three days a week at Goulburn Police Station performing "permanent restricted duties." He assisted "any police officers that needed assistance …. My prior duties involved answering telephone and counter enquiries, creating events and filing documents. Whilst I was authorised to access the COPS, I rarely if ever did so, and my access was severely restricted." 25 The applicant, in his further statement, asked for a transfer to one of six nominated police stations which were closer to his place of residence. He also nominated "other suitable duties" which he thought he could undertake with some retraining, including "a roster officer, domestic violence liaison officer, youth liaison officer, crime prevention officer, exhibits officer, education development officer, intelligence officer and court process officer". 26 The applicant said that if he undertook his prior duties, he would not be required to give evidence in any court proceedings and he would not need to access COPS. He referred also to the fact that if reinstated he wished to pursue a medical discharge and he was desirous of maintaining his secondary employment as a magician because he needed to supplement his income, provided, of course, that he had obtained the necessary approval to do so. 27 I refer to the observations which I made in my previous decision concerning the significance of integrity in the context of appointment as an officer within the New South Wales Police Service. That discussion commences at [111] of my decision. 28 In one sense, I am in no better position to determine what relief should be granted to the applicant at this stage of the proceedings than I was at the time of my original decision on 18 August 2009. However, the applicant has been given an opportunity of reopening his case and has sought to adduce some additional evidence, which I have received. The applicant has not sought to adduce any further evidence, nor has he sought to compel the Commissioner to produce any particular evidence. In these circumstances, and even allowing for the failure of the Commissioner to adduce any evidence, I propose to deal with the proceedings on the basis of such evidence or other information as is before the Commission. In doing so, I do not propose to proceed on the basis that the applicant necessarily has any particular onus to demonstrate that the relief should be granted to him under s 89 because, as I have earlier observed, arguably the burden of adducing particular evidence about the applicant's former position and the availability of any suitable position for reemployment may fall on the Commissioner as the employer. 29 Although the applicant asserted that his demonstrated lack of integrity would not affect the work that he was performing at the time that the Commissioner determined to remove him from the police service, a compelling argument against the applicant's reinstatement, having regard to the serious concerns I have about his integrity, is that at the time of his removal, the applicant was undertaking the same part-time duties as he would be if reinstated. The applicant's integrity has been tainted in the manner that I have described in my earlier decision. In summary, he knowingly breached a prohibition on unauthorised secondary employment and he lied about it. He disobeyed an order of a superior officer. In my opinion, these findings militate against any grant of relief by way of reinstatement in favour of the applicant. The duties that he performed, albeit restricted, were nevertheless duties that involved him in carrying out work as a sworn police officer. The fundamental requirement of integrity continues to apply to the position that the applicant occupied at the time of his removal. The findings which I have made concerning his lack of integrity would, in my opinion, render it impracticable to reinstate him to that position. 30 It is then necessary to consider whether or not relief should be granted by way of an order of reemployment as contemplated within s 89(2). What is contemplated by these provisions is the subject of discussion in the decision of the Full Bench in Carlton and United Beverages Limited, previously referred to. The meaning of "available" is discussed in [59] of that decision. I note, with interest, that the Full Bench in those proceedings reached a conclusion that there was insufficient evidence before the Commission to enable an assessment as to the suitability of reemployment to be undertaken. The Full Bench determined to remit the matter so that "the question of whether leave should be granted to adduce further evidence" might be determined. (At [65]). It was contemplated by the Full Bench that even at the stage where proceedings had been concluded, a decision taken and the matter considered on appeal, it might still be appropriate to adduce further evidence to enable the Commission to fulfil its functions under s 89. 31 I am less confident that there is currently before the Commission any evidence of any other position that the employer has available which is suitable to the applicant as contemplated by s 89(2). The applicant has suggested a number of positions which he has submitted are suitable, albeit that each of them would require some retraining. Fortunately, this Commission is entitled to take notice, in general terms, of work performed by persons in industry, including work performed by persons who perform duties which are well known and which are understood within the general community. Even though the state of the evidence or information about suitable positions is, in my opinion, unsatisfactory, having regard to the need to finalise these proceedings and having regard, in particular, to the fact that the applicant did not seek to further reopen the proceedings beyond the tender of his additional statement, I proceed to consider whether any such position would be suitable, assuming also that it was "available" in the sense referred to by the Full Bench at [59] and following in Carlton and United Beverages Limited. 32 In my opinion, the findings concerning the applicant's integrity, to which I have previously referred, would militate in favour of a conclusion that each of the positions, which the applicant put forward as being suitable for reemployment, would be impracticable. Each of them is either intimately connected with the work of the New South Wales Police Force or the justice system, or both, and would require a high degree of integrity including obedience. 33 I conclude that it would not be practicable in these circumstances to order reemployment. 34 This leaves for consideration the question of compensation. The maximum amount which might be ordered to be paid is fixed by s 89(5) and the basis upon which it is calculated is also set out in that sub-section. The Commissioner conceded that, in all the circumstances, it would be appropriate to make an order for payment of compensation. In these circumstances, I will not examine the relevant evidence in any detail. I observe that it is likely that the level of compensation would be affected by the level of remuneration earned by the applicant whilst undertaking restricted duties so that the final amount of compensation will be relatively small. 35 Given that such finding as I have made in the applicant's favour is directed more to the "technical" basis for his claim rather than any merits, I would assess, in all the circumstances, an appropriate amount of compensation equivalent to a period of three months' remuneration that he earned immediately before his removal. Otherwise, the provisions of s 89(5) are to apply. Orders 36 I order that the respondent Commissioner of Police pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of three months immediately before his removal from the New South Wales Police Force, subject otherwise to the provisions of s 89(5) of the Industrial Relations Act 1996. 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