Industrial Relations Commission New South Wales Medium Neutral Citation: Police Association of New South Wales v Commissioner of Police [2011] NSWIRComm 1003 Hearing dates: 2 December 2010, 20 December 2010, 2 February 2011 Decision date: 14 February 2011 Jurisdiction: Industrial Relations Commission Before: Ritchie C Decision: I therefore Order that the respondent to pay to Mr Harrington an amount of money equal to 288.8 hours as a gratuity Catchwords: INDUSTRIAL DISPUTE - s 130 Dispute notification - small claim for the repayment of annual leave to the officer - Police Officer Hurt on Duty - workers compensation application accepted - officer carries out modified duties - officer elects to be medically retired - officer received specialist report stating unfit for operational duties - officer contacts an admin. officer and seeks to clarify if he now has to come to work - Commission finds that misunderstandings took place during this phone call - officer sends medical report to the respondent - officer does not come to work - later officer asked for another medical certificate and provides it - continues to not come to work - dispute as to whether officer aware during his absence his sick and annual leave are being used - when all leave used up officer receives a further call stating this and he returns to work - officer makes a claim for the recrediting of sick and annual leave - respondent refuses - Commission finds that respondent did not react to medical certificates that did not allow the officer to remain off work and that officer never applied for sick or annual leave - award therefore breached - order made for respondent to pay the officer the quantum of annual leave that had been used Legislation Cited: Industrial Relations Act, 1996 Category: Principal judgment Parties: Police Association of New South Wales (Applicant) Commissioner of Police (Respondent) Representation: Ms M Ray (Applicant:) Mr J Fanning (Respondent:) File Number(s): IRC 812 of 2010 DECISION Background 1The Police Association of New South Wales (the applicant) filed a dispute notification on 13 August 2010, under section 130 of the Industrial Relations Act, 1996 (the Act) against the Commissioner of Police (the respondent). 2Compulsory conferences were held on 25 August 2010, 15 September 2010 and mentions on 28 September 2010 and 7 October 2010 when directions for the filing and serving of evidentiary material were given to parties. A Certificate of Attempted Conciliation was raised and provided to parties and a hearing date of 2 December 2010 was set. 3A further mention was held on 17 November when the respondent filed a document entitled "Extraordinary Submission". Mr Fanning for the respondent stated that a primary witness for the respondent one Ms Terry Sadler who holds the position of General Administration Officer in the Chiefly Local Area Command during the time of the issue in dispute was suffering from chronic fatigue syndrome and had been on extended sick leave. Whilst she had agreed to file written evidence she would be unavailable to provide oral evidence. Ms Ray for the applicant stated that she did not think that Ms Sadler was the key to the matter. 4The hearing of this matter took place on 2 and 20 December 2010. A further hearing date on 2 February 2011 was required by the Commission for the advocates to respond to particular questions. 5Incorporated in the applicant's submission was a Particulars Of A Small Claim. It was expressed in part b) A claim for 288.8 hours of Annual Leave ( for the period of 4 December 2006 to 12 January 2007) as a gratuity upon medical discharge calculated at Sergeant 4 th Year, (loaded annual salary at time of discharge, $74771), May 2007, approximately totalling $10970.88. Applicant's case. 6In the extensive dispute notification the applicant outlined the issue concerning one of their members ex Sergent Ross Harrington. Mr Harrington had been employed by the NSW Police commencing in 1987 and being medically retired on 4 May 2007. 7During a period of employment from 2 November 2006 until 28 February 2007 Mr Harrington did not attend for work. During which time the respondent utilised Mr Harrington's outstanding sick leave and then annual leave. Mr Harrington did not apply for either his sick leave and or his annual leave to be used during this period. 8The applicant sought under section 380 of the Act (for the annual leave for the period 4 December 2006 until 12 January 2007)to be paid as a gratuity upon medical discharge calculated at Sergeant 4 th Year (approximately $10970.88) and for the period from 3 November 2006 to 28 February 2007 not to recorded as sick leave or annual leave. 9Mr Harrington injured himself on duty in December 2005 which was approved as a Hurt on Duty injury. On 19 July 2006 he provided a Workcover medical certificate to his employer which stated that maximum medical improvement had been reached and that he was fit for permanently modified duties. 10On 1 August 2006 his Return to Work Plan stated that he was fit for three days a week on restricted duties until his medical discharge was processed. He would be monitored by Ms Sadler and any difficulties to be reported to Mr John Gulliano. If modification was to occur consultation between the supervisor, return to work coordinator, treating doctor and himself were to occur. 11On 8 August 2006 Mr Harrington signed a letter of intent drafted by the Local Area Commander (LAC) choosing not to work permanent restricted duties but to proceed with his medical discharge. 12In both September and October 2006 he required days off after suffering an aggravation of his medical condition. 13On 30 October 2006 he attended an orthopaedic specialist (Dr J Scougall) who subsequently stated in a report "He is not fit for full operational duties as a Police officer". He received a copy of the report on 2 November 2006 and forwarded to his Command and to his solicitors. 14On the same day he had a conversation with Ms Sadler. He said he stated to Ms Sadler that because he commenced with the respondent prior to 1988 it was his understanding that he therefore did not have to work restricted duties. He stated that Ms Sadler confirmed this and also said that they did not have any spots in the command for him anyway. Mr Harrington then said: " So that's it, I don't have to come in anymore? Ms Sadler replied: "That's right, I'll tell rosters straight away." 15He stated that he was now aware that this advice of Ms Sadler contradicted the NSWP Injury Management Policy which requires suitable duties to be identified and provided by the LAC. 16It was then his view that from that day onwards the roster would be marked " sick leave HOD 76 hours" for the ensuring 16 weeks. 17On 18 December 2006 he received a phone call from Ms Sadler whilst at home requesting that he obtain another Workcover certificate. Mr Harrington queried why as the last certificate was a final and was advised by Ms Sadler that he had to keep suppling them until he was medically retired. She then asked if the doctor could make it the same as the last one but to extend the period a bit. Mr Harrington said that this concerned him and he asked Ms Sadler if he had had to be at work. She advised him that he didn't as long as he got the certificates. 18On 20 December 2006 Mr Harrington stated that he rang Ms Sadler from his doctor's surgery after his doctor(Dr Tamilarisan) queried why he had to have another certificate. Ms Sadler confirmed that he still needed a certificate and therefore he faxed the certificate from his doctor's surgery. The certificate stated that he had reached maximum medical improvement and that he was fit for modified duties. 19Later that night Mr Harrington attended his work Christmas party and spoke with Inspector Davey in the presence of Sergeant Goodwin. Mr Harrington queried he had to be at work and was advised by Inspector Davey that he did not have to, there were no places for him, he was right. 20On 28 February 2007 Mr Harrington was contacted by Ms Sadler who asked for another Workcover certificate back dated to October 2006 and marked totally unfit for duties. Mr Harrington stated that this could not be complied with because his doctor had previously indicated that he was fit for restricted duties and medical certificates could not be back dated. He reminded Ms Sadler of their 2 November 2006 conversation but she could not recall it. On the same day Local Area Manager John Guilliano contacted Mr Harrington at home and advised him he had to return to work. Mr Guillano said that they would have to use his annual leave and sick leave to cover his absence. Mr Harrington stated that he did not think that this was fair. He returned to work the following day 1 March 2007 and worked restricted duties until he was medically retired on 4 May 2007. When he received his pay on 6 March 2007 he noticed that his annual leave of 288 hours and sick leave of 366 hours had been debited over the 16 week period. On the same day he contacted his Union and submitted a report to his superiors seeking for both his sick leave and annual leave to be re-credited. 21During the period of 2 November 2006 to 28 February 2007 (except for a two week pre approved annual leave) Mr Harrington stated that he did not authorise his annual leave or his sick leave to be used nor had he been directed to take leave. He said that he had been fit for modified duties and no one had called him to come back to work. He did state that he had received two visits from a fellow officer which later he was told that they were welfare visits. Both of the visits were pre Christmas 2006. The first visit was of a very brief nature as he was on the verge of going out and as a consequence the Police officer came back a few days later. He denied that a visit took place in February 2007. 22Mr Harrington stated that in early August 2007 he met with a Mr Wookey and a Union Organiser Mr Pat Gooley. Later Mr Harrington received a letter from Mr Wookey admitting that an error had taken place in the taking of his annual and sick leave. Mr Wookey has since been medically retired from the Force. 23Mr Harrington was later advised that the NSWPF Internal Customer Service, Terminations Section had refused to proceed with Mr Wookey's decision form August 2007. 24Mr Harrington was of the view that pre attested 1988 Police Officers did not have to perform permanent restricted duties however he was confused as to when this would come into effect. 25Mr Harrington's view was if the LAC had followed the correct procedures he would have remained at work and did not believe he should have to be held accountable for their error. . 26In giving evidence Mr Harrington acknowledged that he was incorrect with respect to what he believed his rights were as a pre 1988 officer. It was his evidence that as a consequence of his telephone conversation with Ms Sadler on 2 November 2006 he was no longer required to come to work. He continued throughout his cross examination to repeat his recollection of the 2 November 2006 telephone conversation and to dismiss Ms Sadler's views as lies. He denied he was told by Ms Sadler that his sick leave and annual leave would be used if he did not produce a certificate stating he was totally unfit for any duties. He also denied that he had been contacted by Ms Sadler in November and part of December 2006 to provide a Workcover certificate other than on 18 December 2006. 27It was his view that he had sought to comply with what Ms Sadler had asked for throughout his Hurt on Duty process with respect to medical certificates. 28He also advised that he did not understand the ONGOING RETURN TO WORK PLAN-SUITABLE DUTIES dated 1 August 2006 with respect to the medical discharge process. It was his view that because he was pre 1988 that once he had received his specialist report, that was the end of it. 29Mr Darryl John Goodwin provided an affidavit but was not required for cross examination. Mr Goodwin is a sergeant located at Lithgow Police Station. He stated that on 20 December 2006 he attended the Lithgow Police Christmas party. During the evening he was witness to a conversation between Mr Harrington and Inspector Davey. Sergeant Goodwin said that he was speaking to Mr Harrington about his Hurt on Duty injury when Inspector Davey joined the conversation. Mr Harrington asked Inspector Davey as to was he sure he did not have to be at work and Inspector Davey replied that no as there are no places for you, your okay. Sergeant Goodwin stated that he remembered this conversation because he and Mr Harrington spoke about the conversation a few months later Respondent's case. 30Mr Fanning on behalf of the respondent stated that Mr Harrington received a work related injury on 9 December 2005 whilst located at the Lithgow Police Station. Lithgow comes under the Chifley Local Area Command. The injury was accepted as a workers compensation injury. 31Mr Harrington returned to work on suitable duties and continued on such duties with variations and on 19 July 2006 his Doctor Tamilarasan advised that Mr Harrington "had reached maximum medical improvement and is fit for permanently modified duties." 32A return to work plan was established in August 2006. Within this report the following is expressed: Medical Certification Mr Harrington is currently certified fit for suitable duties for his pre-injury hours, three days a week, as outlined by Dr Tamilarasan (Nominated Treating Doctor). Dr Tamilarasan has advised that Mr Harrington has reached maximal medical improvement and he is to complete restricted duties until his medical discharge is processed. 33A specialist report by Doctor Scougall dated 30 October 2006 stated that: " He was not fit for operational duties as a Police officer." 34On 7 August 2006 the LAC wrote to Mr Harrington and offered him two options one of which was that he could apply to be retired on medical grounds. This was the option that Mr Harrington chose. The actual application to apply was not made until mid November 2006. 35Mr Harrington spoke with Ms Sadler on 2 November 2006 and advised that the specialist report indicated that he was unfit for any policing duties. At that point Ms Sadler did not have the specialist report dated 30 October 2006 in front of her. It was the respondent's submission that Ms Sadler told Mr Harrington that she required ongoing medical certificates to claim any lost time back from Hurt On Duty and if not supplied with medical certificates stating totally unfit, then his leave would be debited as sick leave or annual leave. 36Mr Fanning stated that it was the responsibility of the NSW Police Force to provide suitable duties to Mr Harrington and these were available at all times. At no time did the respondent ever advise Mr Harrington that suitable duties could not be provided to him. 37Mr Fanning stated that post Mr Harrington's return to work he sought a re credit of his annual leave and reports and meetings were held. His claim was eventually rejected. 38The LAC officers leave management procedures regarding officers on sick leave follow the Standard Operating Procedures for Handling Leave in the IRB Roster System. The view taken by Commander Wookey was contrary to the instructions contained in the IRB Standard Operating Procedures. 39Ms Terry Sadler filed an affidavit but was not required for cross examination. In her affidavit Ms Sadler outlined her work background which covered the areas of Human Resources training teams in workers compensation. She undertook the Injury Management Coordinators course where she obtained a qualification in Injury Management as a Return to Work Co-ordinator. She stated that she is employed by the respondent in the Chifley LAC as a General Administration Officer. She also stated that her affidavit was based on her recollections plus three reports she wrote dated 28 February, 14 May and 19 December 2007. In her latest position she continued to carry out the same duties relating to Workers Compensation, Long Term Sick and Medical Discharge but was no longer responsible for the management of leave. She said by the time Mr Harrington had made the decision to apply for a medical discharge she had already successfully managed the retirement of approximately 30 officers. 40She stated that there is no difference in the way a pre 88 or post 88 officer on sick leave Hurt On Duty is treated in regard to rehabilitation and Return To Work programs. 41During the conversation of 2 November 2006, Ms Sadler stated to Mr Harrington that he didn't need to come to work if he had a Workcover medical certificate stating that he was totally unfit. She also advised that she would let rosters know that he would be off duty. The report provided by Mr Harrington only stated that he was totally unfit for any operational policing. 42She denied that she had told Mr Harrington that he was not required at the workplace as no suitable duties were available. Only the Commander could make such a decision. She also advised that at the time it was not necessary for an officer to "authorise" the type of leave to be debited. 43After her conversation with Mr Harrington on 2 November 2006, Ms Sadler stated that she contacted Mr Harrington on several occasions through November and December 2006 in regard to the provision of the Workcover certificate indicating that he was unfit for any policing duties. 44In a conversation between Mr Harrington and Ms Sadler that took place on 28 February 2007 she advised him to obtain a further medical certificate as he was not permanently restricted (he had declined this option) and that he was restricted until either medically cleared or medically restricted. 45In this conversation Mr Harrington was still under the impression that as a pre 1988 officer and as he had submitted a medical discharge he did not have to come to work. If he could not provide a medical certificate stating that he was medically totally unfit ( which he could not) then he would have to come back to work which he did. 46In a report written by Ms Sadler dated 14 May 2007 directed to Superintendent Wookey, she stated that as long as Mr Harrington had a medical certificate stating that he was totally unfit, then he would not be required to attend work. She stated that at no time did she state to Mr Harrington that because he was pre 1988 he did not have to work permanent restricted/temporary duties. She said that she told Mr Harrington that it was incorrect that he being pre 1988 that he did not have to come to work on restricted duties. 47Ms Sadler stated that Mr Giuliano's practice was that he did not want officers placed on Leave Without Pay when there were alternatives available that maintained their payments whilst off work. Considerations and Decision. 48As previously expressed in this Decision, Mr Harrington had injured himself whilst on duty on 9 December 2005 and had been working on modified duties since January 2006. 49Correspondence dated 7 August 2006 directed by Local Area Manager, John Giuliano to Mr Harrington sought to ascertain what Mr Harrington wished to do as a consequence of him reaching maximum medical improvement, and therefore was unfit to return to pre injury duties. The correspondence stated that he had two options. He could apply to be considered for permanent restricted duties or submit a medical discharge application. Mr Harrington endorsed on the correspondence that he wished to apply for a medical discharge. He subsequently made his application for medically retirement in mid November 2006 with it being received at the Health Services Directorate on 22 November 2006. 50The specialist report of Dr Scougall dated 30 October 2006 stated that " He is not fit for full operational duties as a Police officer." This report received by Mr Harrington was then passed onto his Commander and his solicitors. A copy of this report was located in Mr Harrington's personal file. 51At that point of time Mr Harrington was of the strong view that as he had joined the Police Force prior to 1988 he did not have to perform restricted duties but was confused as to what took place then and when this would come into effect. 52It was made clear during the hearing and was accepted by both parties that there is no difference between how pre 1988 officers and post 1988 officers on sick leave( Hurt On Duty) are treated in regard to rehabilitation and Return To Work programs. 53On 2 November 2006 a phone conversation between Mr Harrington and Ms Sadler took place. The telephone conversation was initiated by Mr Harrington as a consequence of receiving a copy of the specialist medical report from Dr Scougall. At the time of the conversation Ms Sadler did not have a copy of the medical report in her possession. 54The contents of this conversation are in dispute. The outcome of this conversation in Mr Harrington's view was that he believed he was not required to attend for work anymore. That he held an incorrect view with respect to the rights of officers who had joined the Force pre 1988 I believe was an important element in this matter. Mr Harrington accepted that he was confused with respect to the procedure of medical retirement once he had received the specialist medical report. 55I have reviewed the affidavits and attachments with respect to this telephone conversation. Mr Harrington stated that he said: "I have just got my report from my specialist saying that I am unfit for full operational duties. My understanding is because I am pre 88 I don't have to work restricted duties." Ms Sadler is alleged to have said : " That is right. We don't have any spots in the command for you anyway." Mr Harrington replied: "So that's it, I don't have to come in anymore." Ms Sadler is alleged to have replied: "That's right, I'll tell rosters straight away." 56Ms Sadler stated in reports to her seniors that she was told by Mr Harrington that he had received a medical report from his orthopaedic specialist stating that he was totally unfit for policing duties. He stated that he would be no longer required to attend duty. She stated that as long as he had a medical certificate from his treating doctor, stating that he was totally unfit then he would not be required to attend work. At that point from what Ms Sadler had been told by Mr Harrington was that he was totally unfit. Her responses were based on the information that she had verbally received from Mr Harrington. What Ms Sadler sought was a Workcover certificate confirming that Mr Harrington was totally unfit so the Police Department could then make a claim for reimbursement of wages via their insurance company. If Mr Harrington had such a certificate then he would not be required to come to work as he was unfit to do any duties at all. 57The difference between the two parties is that Mr Harrington believed he now did not have to come to work based on the specialist report, and Ms Sadler confirming that he did not have to come to work as long as he obtained a Workcover certificate stating that he was unfit for all duties. 58It would seem that the practise is that to maintain an officer's pay, whilst waiting for such a Workcover certificate, the respondent will use other forms of leave that the officer has in credit. Once the Workcover certificate is received the leave is re credited back to the officer. 59No such certificate declaring he was totally unfit for all duties was ever received by the respondent. The specialist report determined that Mr Harrington was not fit for full operational duties as a Police officer. Such a report did not prevent the working of modified duties. 60All the medical evidence the respondent had for Mr Harrington was that he was unfit for operational duties. He therefore remained fit for the modified duties that he had been carrying out since early 2006. 61Ms Sadler's stated that during the 2 nd November 2006 telephone conversation, she canvassed the option of a permanent restricted duties officer but was advised by Mr Harrington that he did not wish to apply for such a position as a permanent restricted duties officer. She also commented that it was unlikely that a permanent restricted position would be available within this command, but that this decision was up to the Commander. 62Ms Sadler rejected Mr Harrington's view that she said that as he was a pre 88' he did not have to work permanent restricted/temporary restricted duties. She stated that she had dealt with other pre 88' officers in permanent restricted duties/temporary restricted duties. She stated that she is a qualified Return to Work Coordinator and well aware of the procedures. 63It is my view that in this telephone conversation on 2 November 2006 misunderstandings occurred. As Mr Harrington possessed at the time of the telephone conversation incorrect information with respect to officers who commenced pre 1988, I believe this coloured his understanding of the conversation and therefore its outcome. He also stated that he was confused with respect to the procedure concerning medical retirement Hurt on Duty. 64He had a specialist report that stated that he was not fit for operational duties as a Police Officer. Such a medical report would be the first step towards a medical retirement. Previous medical reports from his treating doctor had the same conclusions. He sought clarification as to his requirement to attend for work and was advised by Ms Sadler that as long as he had a medical certificate from his treating doctor, stating that he was totally unfit then he would not be required to attend work. 65It is my finding that Mr Harrington wrongly interpreted this comment. Ms Sadler did not have the specialist report in front of her and that specialist medical report and other proceeding medical certificates did not state that he could not carry out modified duties. 66As a consequence of my finding above with respect to the misunderstandings that occurred, I do not accept the submission of the respondent that Mr Harrington decided to repudiate the return to work contract by not reporting for duties. 67A subsequently requested Workcover certificate by Ms Sadler from Mr Harrington's doctor dated 20 December 2006 was ticked as Progress, stated in part that: " has reached maximum medical improvement and is fit for permanently modified duties from 09/10/06". It also stated that: " is fit for suitable duties from 13/10/06 to 01/03/2007." 68In summary the medical certificate that was required by the respondent for him not to attend for duty, was one that stated that he was unfit for all Police duties. This he could not and did not ever provide. 69The ONGOING RETURN TO WORK PLAN-SUITABLE DUTIES dated 1 August, 2006 under the sub heading of MEDICAL CERTIFICATION states in part : "that Mr Harrington has reached maximal medical improvement and he is to complete restricted duties until his medical discharge is processed. (underlined added) It is clear from this document that the officer continues to work restricted duties until his medical discharge is finalised, and actually takes place, but it should be noted that Mr Harrington only signed this document on 13 March 2007 which was after his return to work. 70The applicant sought to justify the position of Mr Harrington in not attending for work with the conversation had between Mr Harrington and Inspector Davey during a Christmas party on 20 December 2006. It is my finding that Inspector Davey responded to Mr Harrington's question as to his circumstances based on his very limited personal knowledge on the background to the issue and what he was told by Mr Harrington with the conversation taking place in a party atmosphere. Whilst it may have been convenient for Mr Harrington to approach Inspector Davey it was not the place to talk personal business. As a result I do not believe it would be of value to place much weight on such evidence in my determination of this issue. 71The applicant stated that the use of Mr Harrington's sick leave and annual leave by the respondent to generate a pay between the dates of 2 November 2006 and 27 February 2007( except for the period where Mr Harrington had previously applied for annual leave) was contrary to the award. 72The respondent submitted that the utilisation of Mr Harrington and his sick and annual leave was in accordance with policy. Ex 10 was the Standard Operating Procedures for Handling Leave in the IBR Roster System. This document outlined the procedure for the manner in which all leave is handled within the programmed computer system. It breaks leave up into two categories, "planned" and " unplanned". Unplanned covers sick leave, annual leave and Hurt on Duty leave. The document states that : In essence the principle to follow is; the leave type requested by the officer. If there is no entitlement or balance then enter the next available leave type, again if there is insufficient of this leave type, then use the next leave type, and so on, until the leave entry is successful. The officer will be notified automatically of what leave type is used. Following that is a chart and alongside Hurt on Duty is Sick(with HOD pending reason); annual leave; extended. 73In her report marked Ex 3 Ms Sadler states that she had advised Mr Harrington that : " If he did not have a medical certificate stating that he was totally unfit his leave would be debited as sick or annual leave." Mr Harrington stated in cross examination that this comment was a lie. When Mr Harrington did return to work in early March 2007 he almost immediately made an application through his superiors for the re credit of both his sick leave and annual leave. I do not believe that this was an action of a person who had allegedly been previously advised that his annual leave and sick leave would be utilised and then commences an exercise to retrieve his leave credits. With respect to this disagreement between the parties as to whether Mr Harrington was told or not told of the intended utilisation of his sick and annual leave credits, on the balance of probability I prefer the evidence of Mr Harrington. Even if what Ms Sadler stated was true and that Mr Harrington did not accept it, it does not in my view negate the requirement of the Local Area Command to have managed Mr Harrington's absence from work in a far better manner than they did. 74Ms Sadler states that she contacted Mr Harrington on the morning of 28 February 2007 to obtain a further medical certificate. She stated that Mr Harrington still believed that because he was a pre 88' officer he did not have to be at work as he was permanently restricted. In summary Ms Sadler advised that if he could not provide a medical certificate stating that he totally unfit he should return to work. This he did the following day. 75One of the criticisms brought by the applicant on the respondent was the inordinate length of time it took for the respondent to react to the fact that the medical certificate required by the respondent to be produced was not produced. That is a Workcover certificate stating that he was totally unfit for work. Ms Sadler stated that she spoke with Mr Harrington on several occasions during November/December 2006 seeking to obtain a medical certificate. Mr Harrington denies that several calls were received but he did respond to a phone call from Ms Sadler and obtained a certificate dated 20 December 2006 that again allowed him to carry out modified duties. As Ms Sadler states in Ex. 3 : " This certificate was for suitable duties no leave was able to be re credited to HOD leave. Rosters continued to debit Sgt. Harrington on the SAP system as sick leave until this leave expired 1/12/06. As per the IBR SOP (attachment 4 ) Rosters debited leave which was annual leave. The roster officer advised me approximately late Feb 07 that Sgt Harrington had exhausted all his leave. I contacted Sgt Harrington to advise that his leave had been exhausted and that we would have to debit him as LWOP. 76If Mr Harrington was required by his employer to provide a Workcover certificate to show that he was totally unfit for any type of police work and only if he produced such a certificate would he legitimately not be required to attend for work, then why was he not contacted by the Area Command to either produce such a certificate or come back to work ? 77The medical certificates that he had produced had not changed his abilities to carry out modified duties. The modified duties were still available. 78The respondent stated that Ms Sadler was an administrative person who did not have the authority to instruct Mr Harrington what to do. Such a person only gave out information. 79Ms Sadler stated in her affidavit that the Chifley Command held monthly Injury Management Meetings attended by the Injury Management Advisor, the General Administrative Advisor, the Local Injury Manager and the Local Commander. Whilst Mr Harrington advised that he was not contacted by the Local Commander with respect to his absence, he admitted at least one welfare check visit(s) did take place. 80Mr Harrington received a welfare visit on 24 December 2006 from A/Inspector A. Holland. The respondent stated that another welfare visit took place on 6 February 2007 but Mr Harrington denied this visit took place. Of the visit that Mr Harrington said did take place he stated that no comment was raised by the officer with respect to the requirement to produce any medical certificates. 81The welfare visit carried out on 24 December 2006 ( Ex 8) gave a brief report by the visiting officer. It stated in part " He informed me that his papers had been submitted for his medical discharge and he was expecting this to be finalised about three months from now. He appeared in good spirits and stated that he was not in any need of any forms of assistance from us at this time." There is no mention here of any requirement to provide medical evidence to justify his absence from work or that he should return to work. The second welfare visit was alleged to have taken place on 6 February 2007 (Ex 9) with the report only stating : "The officer's welfare is sound" Again no mention of any requirement to provide medical evidence to support his absence from work or a requirement to return to work. 82It was Ms Ray's submission that the respond had breached the Crown Employees (Police Officers-2005) Award ( the award) with respect to the utilisation of Mr Harrington's sick leave and annual leave credits without the authority of Mr Harrington. 83Clause 17 Application For Leave of the award states in part that (i) An application by an officer for leave under this division shall be made to and be dealt with by the Commissioner...." (ii) The Commissioner , in dealing with any such application must have regard to the operational requirements of the New South Wales Police, but as far as practicable is to deal with the application in accordance with the wishes of the officer. No application for leave was made by Mr Harrington to initiate the taking of leave. 84Clause 20 Sick leave of the award states in part: (ii) Authority to grant sick leave (a) If the Commissioner is satisfied that an officer is unable to perform her or his duty because of illness, the Commissioner: (1) must, subject to this subclause, grant the officer sick leave on full pay, and (2) may, subject to this subclause, grant the officer sick leave without pay if the absence of the officer exceeds his or her entitlement to sick leave on full pay under this clause. (b) An officer may elect to take available annual leave or extended leave instead of sick leave without pay. (iii) Requirements For Medical Certificate (a) An officer absent from duty because of illness: (1) in respect of any such absence in excess of 3 consecutive working days, must furnish a medical certificate to the Commissioner, or (2) in respect of any such absence of 3 consecutive working days or less, must if required to do so by the Commissioner, furnish a medical certificate to the Commissioner. (b) Despite paragraph (a), the Commissioner may at any time require an officer who has been granted sick leave to furnish medical evidence of the inability of the officer to resume duty. Mr Harrington never applied for sick leave. It was the submission of Ms Ray that sick leave credits could not be used to cover his absence if he provided a medical certificate stating that he was unfit to carry out any duties. Mr Fanning responded by stating that the non production of medical evidence does not exclude that officer from being granted sick leave if the Commissioner decides that it's appropriate and this is what happened in this case. 85I do not accept this submission of Mr Fanning in this case. It is my finding that Local Area Command were working off the premise that Mr Harrington had or would obtain a Workcover certificate that would place him off work incapable of carrying out any duties. Local Area Command did not react to the medical certificates that Mr Harrington sent in which only worsened the situation. 86Ms Ray also submitted that the actions taken by the respondent in first utilising Mr Harrington's sick leave and then his annual leave was to only comply with filling roster requirements, rather than adhering at first instant with the award requirements. 87Within a few days of Mr Harrington commencing his period of leave (early November 2006) the respondent would have received the specialist report. Mr Fanning said as part of his final submissions that: I submit that the leave payment was made to Mr Harrington at the time when it was thought he was unable to work. Such a comment would hold weight if Local Area Command reacted to the specialist report on receipt and required a Workcover certificate stating that Mr Harrington was unfit for all duties. If he failed to produce such a Workcover certificate in a timely fashion, then a clear direction for an immediate return to work should have been made by the Local Area Command. No such direction for a return to work was made until very late February 2007 and that was only because he had run out of sick leave and annual leave credits. 88No reaction from Local Area Command occurred on receipt of the Workcover certificate dated 20 December 2006 which again confirmed Mr Harrington's ability to carry out modified duties. Mr Harrington stated that he faxed the certificate from his doctor's office after speaking with Ms Sadler. I accept this as truthful evidence. The requirement by the respondent for a Workcover certificate from Mr Harrington's doctor in late December 2006 was not fully explained or justified. It understandably confused Mr Harrington. 89There had been no change in Mr Harrington's medical assessments between 2006 and 2007 yet commencing on 2 November 2006 he did not come to work and it would seem his absence was in some fashion condoned by Local Area Command. 90Mr Fanning for the respondent submitted that Mr Harrington was an experienced officer holding the rank of sergeant and therefore should have known of the requirements with respect to medical certificates and the substantiating of leave. 91It is my view that notwithstanding the experience of Mr Harrington and the rank that he held, it is the responsibility of the Local Area Command to manage their staff and make sure that absences from work are justified by appropriate supporting documentation and that award responsibilities are being met. 92I accept the submission made by Ms Ray that to utilise either sick leave and or annual leave requires documentation, application by the individual officer, appropriate supporting medical evidence and authorisation by the delegated senior officer(s). 93Mr Harrington was not sick to the extent that he could not have carried out the modified duties therefore there was no entitlement for the payment of sick leave. The payment of the sick leave was made by the Local Area Command on the false premise that a Workcover medical certificate would be provided by Mr Harrington stating that he was unfit for any duties, notwithstanding the medical certificates he did provide which stated that he was fit for modified duties which were not reacted to by Local Area Command in a timely fashion. 94At no time did Mr Harrington apply as required for annual leave. 95It is therefore my finding that the respondent failed to comply with the award requirements in both sick leave and annual leave clauses. 96I therefore Order that the respondent to pay to Mr Harrington an amount of money equal to 288.8 hours as a gratuity. 97I note in the applicant's Particulars of Small Claim they detail a claim for 288.8 hours to be paid as a gratuity based on Sergeant 4 th Year(loaded annual salary at time of discharge of $74771) giving an approximate amount of $10970.88. I had sought during proceedings for the amount to be confirmed by the parties but unfortunately this did not occur. 98I direct the parties to confer on the exact amount and to prepare and file a draft Order detailing the exact amount within 14 days of the date of this Decision. 99If agreement on the amount can not be reached between the parties I will at the request of the parties re list this matter at short notice. D. RITCHIE COMMISSIONER 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. Decision last updated: 16 February 2011