Commissioner of Police v Bennett [2011] NSWIRComm 17

Industrial Relations Commission New South Wales Medium Neutral Citation: Commissioner of Police v Bennett [2011] NSWIRComm 17 Hearing dates: 29 October 2010 Decision date: 04 March 2011 Jurisdiction: Industrial Court of NSW Before: Boland P, Walton VP, Kavanagh J Decision: 1. Leave to appeal is granted. 2. The appeal is upheld to the extent determined in this decision. 3. The appeal is dismissed to the extent determined in this decision. 4. The orders at first instance are confirmed. 5. The stay order made by the consent of the parties on 29 June 2010 is dissolved. 6. The Full Bench directs that the appellant shall provide written submissions regarding costs within seven days of this decision. The respondent shall have a further seven days in which to respond. Unless there is an application by either party to be heard orally on the question of costs, the question shall be determined on the papers. Catchwords: APPEAL - Police - Police officer medically discharged because she was unable to undertake the full scope of her duties due to injury - Officer claimed lump sum payment under the terms of relevant industrial instrument - Employer resisted claim for lump sum payment on the grounds that the officer had refused reasonable offers of suitable positions within the Police Force - Held at first instance officer was entitled to lump sum payment - Consideration on appeal of what is a reasonable offer and what is a suitable position - Consideration of the statutory/regulatory context and what weight should be given to the personal circumstances of an injured police officer versus the weight to be given to the employer's right to transfer officers in order to retain them in the Police Force - Consideration of the public interest in retaining injured officers in the Police Force where a suitable position can be found - Suitable position involves objective test - Held that personal circumstances of an officer are a secondary consideration to the retention of an officer in the Police Force - Officer's personal circumstances would only outweigh the public interest in retaining officers in exceptional cases - Held this was an exceptional case - Whilst error at first instance no basis to uphold appeal - Leave to appeal granted - Appeal dismissed