Industrial Relations Commission of New South Wales CITATION: Commissioner of Police and Raymond Sewell [2008] NSWIRComm 100 Appellant: PARTIES: Commissioner of Police Respondent: Raymond Sewell FILE NUMBER(S): IRC627 of 2008 CORAM: Kavanagh J CATCHWORDS: Urgent Application for a Stay - appeal and leave to appeal from decision of Haylen J - order for re-instatement of police officer within 7 days - appeal period 21 days from date of decision - appellant demonstrates arguable grounds of appeal and a serious issue to be tried - no terms for Stay practical - Stay granted LEGISLATION CITED: Police Service Act 1990 CASES CITED: Sewell v NSW Police Force [2008] NSWIRComm 93 Water Industry Salaried Officers' Union v Professional Officers' Association of New South Wales (1987) 22 IR 178 HEARING DATES: 13/05/08 EXTEMPORE JUDGMENT DATE: 13 May 2008 Appellant: Mr A. Searle of counsel Solicitiors: Crown Solicitors LEGAL REPRESENTATIVES: Respondent: Mr A.W.G. Metcalfe of counsel Solicitors: Walter Madden Jenkins JUDGMENT: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Kavanagh J Tuesday 13 May 2008 Matter No IRC 627 of 2008 COMMISSIONER OF POLICE AND RAYMOND SEWELL Application by Commissioner of Police for leave to appeal and appeal against a decision of Justice Haylen given on 6 May 2008 in matter No. IRC 1259 of 2007 EX TEMPORE DECISION (Application for Stay) [2008] NSWIRComm 100 1 HER HONOUR: On 6 May 2008, Haylen J published a decision (Sewell v NSW Police Force [2008] NSWIRComm 93) in relation to the termination of a Police Officer, Raymond Sewell. His Honour ordered the Police Officer be reinstated without payment of lost salary and without continuity of service during the period of termination. His Honour, in consideration of the facts before him, determined at [131]: Ultimately, in what is a difficult balancing exercise, the Commission determines that there is a brief period in a long police career that represents such aberrant behaviour that, on the evidence, it is unlikely to be repeated and that it was harsh and unfair to remove Mr Sewell from the Police Service. All these matters strongly suggest that, in the context of such a long career, Mr Sewell should be given a second chance. In reaching this conclusion, it is not to be suggested that his actions over this brief period were not serious nor could they be ignored as inconsequential or trivial. The Codes of Police conduct, however, should not be treated as a monolith but should be viewed as blueprints with layers indicating what should be the behaviour of police officers. Those layers should also acknowledge a role for flexibility, compassion and fairness in dealing with the variety of human behaviour that will be called for review. In considering the matters referred to above, it is concluded that Mr Sewell has made out a case to be reinstated in the Police Force. 2 His Honour found the reasons relied upon by the Commissioner of Police for the termination of Mr Sewell were established. Further, as the credit of the applicant (the respondent to the Appeal) was under attack, especially his behaviour during the investigation by the Police, his Honour's reasoning at [127] of the judgment found as follows: . . . there were occasions when he did suffer blackouts and had a less than full recollection of events means that, when he was intoxicated and on medication, his denial of certain allegations whilst in that state are without weight. 3 His Honour's Orders regarding re-instatement were to take effect within seven days of judgment. It should be noted under the Rules of this Commission, parties have 21 days to determine whether to appeal. Nonetheless, given the effect of his Honour's orders, the Commissioner of Police has filed an Application for Leave to Appeal and Appeal and makes Application for a Stay of the Orders submitting it would be impracticable to reinstate Mr Sewell as a Police Officer pending finalisation of the appeal. 4 It is well established that an appellant must provide a reason or demonstrate an appropriate case for a Stay and, as has been said in Water Industry Salaried Officers' Union v Professional Officers' Association of New South Wales (1987) 22 IR 178), the Commission must be satisfied the appeal is arguable and there are serious issues to be tried. 5 The Grounds of Appeal relied upon by the appellant assert: · the findings made by his Honour related to the alleged blackouts were inconsistent with medical evidence before his Honour and that was an error made by his Honour; · the lack of the truthfulness of the applicant should have been given more weight; and · his Honour erred in failing to properly balance the consideration in s181F(3) of the Police Act in that the respondent's lack of candour should have been held to significantly undermine the integrity of the Police Service. His Honour should have given more weight to the public interest. 6 At the heart of the Appeal, therefore, is the use of his Honour's discretion on the question of credit issues and his Honour's balancing of the interests of the applicant with the public interest. These issues on appeal must be perceived in the context that his Honour found the conduct occurred. 7 It is open on Appeal for an Appellate Court to determine that there is an error in law made in the application of the court's discretion. I am persuaded the Appeal is arguable and there is at least one serious issue to be tried and that is in the balance of the competing interests between that of an applicant and the public interest. 8 I am also persuaded that the appellant's real prospects on appeal would be nugatory if the Stay is not granted. The respondent (as confirmed by the parties) is in employment in another country town from that where he was employed and to which he commuted. He now has a position in the town where he resides but still suffers an economic loss. 9 The nature of this appeal is such that I would consider terms of a Stay but I cannot see such an option open to me in the circumstances. Therefore, I grant the Stay of the Orders of Haylen J of 6 May 2008. 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.