Industrial Relations Commission New South Wales Medium Neutral Citation: Commissioner of Police v Eaton [2011] NSWIRComm 51 Hearing dates: 9 & 19 November 2010 Decision date: 05 May 2011 Jurisdiction: Industrial Relations Commission Before: Walton VP, Marks J, Kavanagh J Decision: 1. Leave to appeal is granted and the appeal is upheld. 2. The decision of Commissioner Bishop given on 30 June 2010 is quashed. 3. The application by the respondent, David John Eaton, for a remedy pursuant to s 84 of the Industrial Relations Act 1996 is dismissed. Catchwords: APPEAL - dismissal of probationary constable - s 80(3) of Police Act - whether Commission has jurisdiction under s 84 Industrial Relations Act - Parfrey v Commissioner of Police considered - relevant statutory provisions - tests for inconsistency - competing legislative provisions - Pt 9 of Police Act - misconduct of police officers - s 218 of Police Act - s 405 of Industrial Relations Act - inconsistency between rights given under s 84 and s 80(3) of Police Act - provisions cannot stand together - powers under s 84 excluded - Commission lacks jurisdiction under s 84 vis a vis dismissal of probationary constable - leave to appeal granted - appeal upheld - decision and application at first instance dismissed Legislation Cited: Industrial Conciliation and Arbitration Act 1972 (S.A.) Industrial and Employee Relations Act (S.A.) Industrial Relations Act 1996 Evidence Act Police Act 1990 (N.S.W.) Police Act 1998 (S.A.) Police Regulation 2008 Public Service Act Cases Cited: Butler v Attorney-General (Vict) [1961] HCA 32; (1961) 106 CLR 268 Byrne v Australian Airlines Pty Ltd [1995] HCA 24; (1995) 185 CLR 410 Commissioner of Police of New South Wales v Industrial Relations Commission of New South Wales [2009] NSWCA 198; (2009) 185 IR 458 Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 Jarratt & Commissioner of Police for New South Wales [2005] HCA 50 Nassar v Public Service Board (1986) 16 IR 394 O'Rourke v Miller [1985] HCA 24; (1984-1985) 156 CLR 342 Parfrey v Commissioner of Police [2010] NSWIRComm 19 Public Service Association of New South Wales v Industrial Commission of New South Wales (1985) 1 NSWLR 627 Rose v Hvric [1963] HCA 13; (1963) 108 CLR 353 South Australia v the Commonwealth (1942) 65 CLR 373. Category: Principal judgment Parties: Commissioner of Police (Appellant) David Eaton (Respondent) Representation: Mr M Kimber SC with Mr M Seck of counsel (Appellant) Mr S Crawshaw SC with Ms P Lowson of counsel (Respondent) Bartier Perry (Appellant) Walter Madden Jenkins (Respondent) File Number(s): IRC 600 of 2010 Decision under appeal Jurisdiction: 9102 Citation: David Eaton v Commissioner of Police [2010] NSWIRComm 1035 Date of Decision: 2010-06-30 00:00:00 Before: Bishop C File Number(s): IRC 1111 of 2009 DECISION 1The appellant in these proceedings, the Commissioner of Police, by order made pursuant to s 80(3) of the Police Act 1990 ("the Police Act"), dismissed from office the respondent, David Eaton, who was then a probationary constable in the New South Wales Police Force. The respondent commenced proceedings under s 84 of the Industrial Relations Act 1996 ("the Act") seeking relief from his dismissal on the basis that it was harsh, unreasonable or unjust. That application was determined by Commissioner Bishop who, in a decision of 30 June 2010, upheld the respondent's claim. 2The appellant seeks leave to appeal and to appeal from that decision on the basis, substantially, that the Industrial Relations Commission of New South Wales ("the IRC") did not have power or jurisdiction under s 84 of the Act to grant the relief sought by the respondent because he was a probationary constable. 3This jurisdictional issue was raised before the Commissioner who rejected it following, as a matter of comity, a decision of Grayson DP in Parfrey v Commissioner of Police [2010] NSWIRComm 19, in which the Deputy President had found that jurisdiction under s 84 of the Act extended to probationary constables. 4These proceedings are the first occasion upon which this controversy has been considered by a Full Bench of this Commission. The matter raises important questions of statutory construction and, for that reason alone, it is obvious that leave to appeal should be granted. The statutory matrix 5In order to understand the competing positions of the parties on appeal, it is necessary to set out some of the statutory basis against which the s 84 proceedings were brought and on the basis of which the appellant submitted that the IRC lacked jurisdiction. 6Section 84 of the Act provides the basis upon which relief may be sought by a dismissed employee. It is in the following terms: 84 Application for remedy by dismissed employee (1)If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part. (2)An application may be made on behalf of the employee by an industrial organisation of employees. (3)An industrial organisation may make one application on behalf of a number of employees who were dismissed at the same time or for related reasons. However, this subsection does not prevent the Commission from hearing a number of applications under this Part together or individually. (4)An application may be made under this Part even though the applicant does not specify the nature of the remedy sought or requests compensation only. However, this subsection does not affect the requirement under this Part that compensation is available only if the Commission considers that reinstatement or re-employment would be impracticable. 7In considering the provisions of s 84, it is also important to have regard to the provisions of s 83, which is in the following terms: 83 Application of Part (1)This Part applies to the dismissal of: (a)any public sector employee, or (b)(b) any other employee, except an employee for whom conditions of employment are not set by an industrial instrument and whose annual remuneration is greater than $62,200 (or such greater amount as is prescribed by the regulations). (1A) This Part applies to the dismissal of an employee even if the person was employed in this State under a Federal award. However, this Part does not apply to the dismissal of any such employee if: (a)the person is entitled to make an application to Fair Work Australia with respect to the dismissal on the ground that it was harsh, unjust or unreasonable, or (b)the person would have been entitled to make such an application but for the exclusion of the person from the relevant provisions of the Fair Work Act 2009 of the Commonwealth (being an exclusion of a kind referred to in subsection (2)). (2)This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes: (a)(employees engaged under a contract of employment for a specified period of time or a specific task, (b)employees serving a period of probation or qualifying period, (c)employees engaged on a casual basis for a short period, (d)employees whose terms and conditions of employment are governed by special arrangements providing particular protection in respect of termination of employment either generally or in particular circumstances, (e)employees in relation to whom the operation of the provisions of this Part causes or would cause substantial problems because of: (i)their particular conditions of employment, or (ii)the size or nature of the undertakings in which they are employed. (3)This Part does not apply to the dismissal of any such employee who is an apprentice or trainee (other than an existing worker trainee) within the meaning of the Apprenticeship and Traineeship Act 2001 or any such employee who is an executive officer to whom Part 2A of the Public Sector Management Act 1988 or Part 5 of the Police Service Act 1990 applies. (4)This Part applies to the dismissal of an employee even though it occurred in the course of an industrial dispute and the Commission is otherwise authorised under this Act to order the reinstatement of the employee. (5)In this Part: dismissal includes: (a)the threat of dismissal, and (b)in the case of a public sector employee-dispensing with the services of the employee, dismissing the employee as a consequence of disciplinary proceedings against, or the commission of an offence by, the employee or annulling the appointment of the employee. Federal award means: (a)a modern award within the meaning of the Fair Work Act 2009 of the Commonwealth, or (b)a Division 2B State award under Schedule 3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth. industrial instrument includes a Federal award. 8It is also relevant to consider the provisions of s 88 to s 90 of the Act, which are in the following terms: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account: (a)whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b)if any such reason was given-its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c)whether a warning of unsatisfactory performance was given before the dismissal, and (d)the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e)whether or not the applicant requested reinstatement or re-employment with the employer, and (f)such other matters as the Commission considers relevant. 89 Orders for reinstatement, re-employment, remuneration, compensation (1)Reinstatement The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. (2)Re-employment If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable. (3)Remuneration If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order. (4)Continuity If the Commission orders reinstatement or re-employment, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal. (5)Compensation If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave. (6)When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment. (7)Threat of dismissal In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat. (8)An order under this section may be made on such terms and conditions as the Commission determines. 90 Effect of availability of other remedies The Commission must not determine an applicant's claim by making an order under section 89 if: (a)another Act or a statutory instrument provides for redress to the person in relation to the dismissal, and (b)the person has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument. 9The above provisions are found within Part 6 of Chapter 2 of the Act. This is a discrete part of the Act that creates remedies in circumstances where employees are dismissed and where the dismissal may be characterised as harsh, unreasonable or unjust. 10These provisions, prima facie , apply to police officers (s 83(1)(a)). 11However, there is provision for the exemption of employees serving a period of probation or qualifying period as described in the appropriate regulations (s 83(2)(b)). 12By s 88, the IRC is empowered to take into account, inter alia , whether a reason for dismissal was given, whether such a reason had a basis in fact, whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour and whether a warning of unsatisfactory performance was given before dismissal. 13The IRC has defined powers under Part 6 as provided for in s 89. These include reinstatement to a former position, re-employment if it is impracticable to order reinstatement and ancillary orders by way of remuneration or compensation. 14It is now necessary to refer to some provisions of the Police Act 1990. 15A police officer is defined in s 3 of that Act to mean "a member of the NSW Police Force holding a position which is designated under this Act as a position to be held by a police officer." 16Section 5 of that Act deals with the composition of the New South Wales Police Force and is in the following terms: 5 Composition of NSW Police Force The NSW Police Force comprises the following members: (a)the Commissioner, (b)members of the NSW Police Force Senior Executive Service, (c)all other police officers and administrative officers employed under this Act, (d)temporary employees. 17The positions in the New South Wales Police Force are dealt with in s 10. In particular, s 10(4) provides: 10 Positions in NSW Police Force ... (4)Police officers of the rank of constable (or such of those police officers as the Commissioner determines) are to be appointed to that rank or to a grade within that rank, and hold a position (but not a separate position) in the NSW Police Force. 18Section 12 deals with the ranks within the New South Wales Police Force and is as follows: 12 Ranks and grades of police officers (1)The ranks of police officers within the NSW Police Force are (in descending order) as follows: (a)Commissioner. (b)Member of the NSW Police Force Senior Executive Service. (c)Superintendent (other than a member of the NSW Police Force Senior Executive Service). (d)Inspector. (e)Sergeant. (f)Constable. (2)The Commissioner, with the approval of the Minister, may specify different ranks for police officers within the NSW Police Force Senior Executive Service. (3)The regulations may specify grades within the ranks of superintendent, inspector, sergeant and constable. 19Part 6 deals with non-executive police officers. Significantly, for the purpose of these proceedings, s 80 of the Police Act makes specific reference to probationary constables. It is in the following terms: 80 Appointment and promotion of constables (1)The Commissioner may, subject to this Act and the regulations, appoint any person of good character and with satisfactory educational qualifications as a police officer of the rank of constable. (2)A person when first appointed as such a police officer is to be appointed on probation in accordance with the regulations. (3)The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason. (4)The promotion of police officers within the rank of constable is subject to the regulations. 20The appellant fastened specifically on the provisions of s 80(3) of the Police Act , which allow the Commissioner to dismiss a probationary police officer from the New South Wales Police Force "at any time and without giving any reason." Put shortly, it was the submission of the appellant that such a provision was incompatible with any entitlement to seek reinstatement or other relief under s 84 of the Act and such incompatibility would lead to a construction of s 84 so that its application did not extend to probationary constables. 21Finally, it is necessary to make brief reference to the Police Regulation 2008. Clauses 12 to 14 deal with the appointment of constables on probation. They are in the following terms: 12 Appointment of constables on probation (1)In accordance with section 80 (2) of the Act, a person when first appointed as a police officer of the rank of constable is to be appointed on probation: (a)for a period of 1 year, or (b)for such longer or shorter period (being not less than 6 months) as the Commissioner may direct in the case of that person. (2)Despite subclause (1), the Commissioner may direct that the period of probation be less than 6 months, or may waive the period of probation completely, if the person has previously served as a police officer in the NSW Police Force or in any other police service or police force (however called). (3)All or any part of such previous service may, with the approval of the Commissioner, be counted towards seniority. 13 Confirmation of appointment as constable Confirmation of appointment in the rank of constable is subject to: (a)the successful completion of initial basic training, as determined by the Commissioner, and (b)the completion of the period of probation, and (c)a satisfactory fitness report, and (d)the other requirements of this Division. 14 Fitness report for probationary constables (1)The appointment of a probationary constable is not to be confirmed unless a police officer designated by the Commissioner has reported that the probationary constable is fit to discharge satisfactorily the duties of constable. (2)Any such fitness report is to deal with the probationary constable's: (a)medical fitness, as indicated by a health assessment referred to in clause 10, and (b)aptitude for the discharge of the duties of constable, and (c)competence, integrity, performance and conduct. (3)If on the day on which the Commissioner would otherwise confirm his or her appointment the probationary constable is medically unfit but satisfies all other requirements, the Commissioner may confirm the appointment on and from the day the probationary constable is certified medically fit by a medical practitioner. (4)The seniority of a constable whose appointment is confirmed in accordance with subclause (3) is to be determined: (a)if the constable's medical unfitness was due to any wound, injury or sickness occasioned in the actual execution of duty, as though the appointment had been confirmed: (i)on the day on which it would have been confirmed but for the constable's medical unfitness, or (ii)if that day occurred more than 12 months before the day on which the appointment was actually confirmed, on the day occurring 12 months before the day on which it was actually confirmed, or (b)if the constable's medical unfitness was not due to any wound, injury or sickness occasioned in the actual execution of duty, as though the appointment had been confirmed: (i)on the day on which it would have been confirmed but for the constable's medical unfitness, or (ii)if that day occurred more than 9 months before the day on which the appointment was actually confirmed, on the day occurring 9 months before the day on which it was actually confirmed. 22Before considering this matter, we observe that, on the basis of the provisions of the Police Act set out above, it should be concluded that a probationary constable is a police officer for the purpose of the Police Act . Neither party contended for any different position. The nature of probationary appointment 23In order to deal with the competing submissions of the parties, it is also necessary to have regard to the concept of a probationary police officer. 24The High Court of Australia dealt with the circumstances of a probationary constable in the Victorian Police Force in O'Rourke v Miller [1985] HCA 24; (1984-1985) 156 CLR 342. The statutory context against which those proceedings were conducted is not relevant for the purpose of these proceedings. However, in the course of his judgment Gibbs CJ referred to the concept of a probationary constable. He said: [9] It was submitted, on behalf of the Chief Commissioner, that the Chief Commissioner has power to terminate the appointment of a probationary constable at any time during the period of probation. This, it was said, is inherent in the nature of probation, which is described in Jowitt's Dictionary of English Law, 2nd ed. (1977), as "suspension of a final appointment to an office until a person temporarily appointed (who is called a probationer) has by his conduct proved himself to be fit to fill it". In other words, probation is a time of testing or trial and a probationer whose conduct, character or qualifications fail to meet the test need not be confirmed in the office to which he was provisionally appointed. The test for inconsistency 25The most recent decision of the High Court of Australia is Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130. It concerned a consideration of the provisions of the South Australian Industrial and Employee Relations Act 1994 (SA) and the Police Act 1998 (SA). The High Court held that the South Australian Police Act established a comprehensive regime dealing, inter alia , with misconduct within the South Australian Police Force and the ability of the Commissioner of Police to deal with it including the power of dismissal. The Court further held that the nature of the Police Act and its appearance of exhaustiveness on the subject of termination created incompatibility with the provisions of the Industrial and Employee Relations Act . Those provisions established a regime which allowed employees, including employees of the Crown who were dismissed, to seek a determination from the Industrial Relations Commission of South Australia that the dismissal was harsh, unjust or unreasonable and to seek certain orders including an order for re-employment. 26Gleeson CJ reviewed the special statutory regime for complaints against, and discipline of, members of the police force. The ultimate control within the Police Act of the appointment and termination of police officers which reposed in the Commissioner lay: in the disciplined nature of the police force, the Commissioner's responsibilities of control and management, and the range of information and considerations that would need to be taken into account in deciding whether, in a particular case, retention of appointment is consistent with ... (a misconduct). (At [10]). 27Gleeson CJ also referred to issues of morale and integrity. He concluded that it would be incompatible with the scheme created by the Police Act to treat an exercise of the Commissioner's power under that Act as subject to the industrial regime of the Industrial and Employee Relations Act. 28Gummow and Hayne JJ noted firstly the requirement for strong grounds to support an implication of inconsistency that would lead to a finding that two statutes could not co-exist (at [18]). Their Honours then commented as follows: deciding whether there is such inconsistency ("contrariety" ( Butler v Attorney-General (Vict) [1961] HCA 32; (1961) 106 CLR 268 at 275 per Fullagar J) or "repugnancy" ( Butler [1961] HCA 32; (1961) 106 CLR 268 at 290 per Windeyer J)) that the two cannot stand or live together ( Butler [1961] HCA 32; (1961) 106 CLR 268 at 280 per Kitto J; Travinto Nominees Pty Ltd v Vlattas [1973] HCA 14; (1973) 129 CLR 1 at 34 per Gibbs J) (or cannot be "reconciled" ( Butler [1961] HCA 32; (1961) 106 CLR 268 at 290 per Windeyer J])) requires the construction of, and close attention to, the particular provisions in question. 29Gummow and Hayne JJ, in the extract noted above, made reference to certain portions of the judgment of the several judges of the High Court of Australia in Butler v Attorney-General (Vict) [1961] HCA 32; (1961) 106 CLR 268. At 276 in the Butler proceedings, Fullagar J cited authority to the effect that it was necessary to conclude that "it must have been intended that the two [pieces of legislation] should be in conflict, the two could not stand together; the second repeals the first." At 280, Kitto J referred to whether the two pieces of legislation "could stand together, live together ..." His Honour further said: "It is not, I think, a case in which two enactments might be made to live together by implying into the later an exception sufficient to allow for the continued operation of the earlier, on the principle generalia specialibus non derogant; ...." At 285, Taylor J quoted with approval an earlier observation of Starke J in a previous decision to the effect that "The intention, object, or purpose of a legislative body can only be legitimately ascertained from what it has chosen to enact either in express words or by reasonable and necessary intendment." (Per Starke J in South Australia v the Commonwealth (1942) 65 CLR 373 at 439.) At 290, Windeyer J referred to later legislation being "clearly and indisputably contradictory and contrary to the former Act in the very matter, and the repugnancy such as the two Acts cannot be reconciled." 30In essence, the question for determination in these proceedings is whether there is such contrariety, repugnancy or inconsistency between the rights given under s 84 of the Act and the provisions of s 80(3) of the Police Act to allow us to conclude that both of them "cannot stand or live together or cannot be reconciled". This will require "the construction of, and close attention to, the particular provisions in question", as referred to by Gummow and Hayne JJ in Ferdinands . The competing legislation examined 31On the one hand, the provisions of s 80(3) are clear on their face. The Commissioner is empowered to dismiss a probationary police officer at any time and without giving any reason. This is, on one view, consistent with the concept of such a police officer being on probation. 32On the other hand, to determine whether or not a dismissal from employment is harsh, unreasonable or unjust must by necessity involve an examination of the circumstances in which the dismissal occurred. As a matter of logic, those circumstances may include the reason why the employee was dismissed and the timing of any dismissal. Indeed, the question of the reason for dismissal is specifically adverted to in s 88(a) and (b) of the Act, albeit that these are matters that are amongst a number of other matters which could arguably require examination in terms of s 88. Although s 88 is framed in terms of the permissive "may", it is arguable that a failure to take into account the matters that are referred to therein, in so far as they are relevant to particular proceedings, would create a miscarriage of the exercise of the discretion that must accompany the making of any order under s 89. 33The meaning of the words used in s 83 of the Act, albeit in the context of the provisions of a clause dealing with unfair dismissals in an industrial award, were dealt with by McHugh and Gummow JJ, in the High Court of Australia in Byrne v Australian Airlines Pty Ltd [1995] HCA 24; (1995) 185 CLR 410. The following observations have been often cited with approval: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. (At p 465.) 34In determining whether a dismissal is harsh, unjust or unreasonable, it follows that it is necessary, in appropriate circumstances, to have regard to the conduct of the employee, whether the employer acted reasonably in terms of what was known about the employee's conduct, the personal consequences of dismissal for the employee and whether dismissal was disproportionate in all the circumstances. 35All of these matters may require a tribunal undertaking a consideration of whether the dismissal was harsh, unreasonable or unjust to consider matters that may be referrable to the time at which a dismissal occurred and the reason for that dismissal. These are matters that the Commissioner is not required to take into account under s 80(3) of the Police Act . 36Furthermore, the relief which is available in this Commission under s 89, involving reinstatement, reemployment, the payment of remuneration, the awarding of compensation and the like, are clearly inconsistent with the prima facie right that is vested in the Commissioner by s 80(3) of the Police Act to dismiss a probationary police officer at any time and without giving any reason. The manner in which s 80(3) is framed is clearly indicative of an authority that reposes in the Commissioner to dismiss a probationary police officer without interference of any kind. (In making this observation, it is acknowledged that at common law there may well be a right to seek relief even in circumstances where a police officer may be dismissed at any time and without giving any reason. See Jarratt & Commissioner of Police for New South Wales [2005] HCA 50.) The provisions of the Police Act dealing with the misconduct of officers 37Part 9 of the Police Act contains detailed provisions that deal with the action that may be taken by the Commissioner consequent upon misconduct and unsatisfactory performance. These detailed provisions, which were inserted into the Police Act in 1998 and, therefore, are later in point of time to the unfair dismissals regime established by Pt 6 of Ch 2 of the Act, are indicative that at that time the legislature considered in some detail the circumstances in which police officers might be removed following misconduct or unsatisfactory performance. In providing such a regime, the legislature left intact s 80(3) of the Police Act . 38The provisions of Pt 9 of the Police Act, which deal substantially with the powers of the Commissioner, are contained within ss 173 and 181D and are as follows: 173 Commissioner may take action with respect to police officer's misconduct or unsatisfactory performance (1)In this section: non-reviewable action means action referred to in Schedule 1. reviewable action means action referred to in subsection (2), other than non-reviewable action. (2)The Commissioner may order that the following action be taken with respect to a police officer who engages in misconduct: (a)a reduction of the police officer's rank or grade, (b)a reduction of the police officer's seniority, (c)a deferral of the police officer's salary increment, (d)any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate. (3)The Commissioner may also order that action referred to in subsection (2) be taken with respect to a police officer whom the Commissioner has required to participate in a remedial performance program prescribed by the regulations and whose performance as a police officer after having participated in that program is, in the Commissioner's opinion, still unsatisfactory. (4)The Commissioner may make an order under subsection (2) or (3) whether or not the misconduct or unsatisfactory performance has been the subject of a complaint under Part 8A and whether or not the police officer has been prosecuted or convicted for an offence in relation to the misconduct or unsatisfactory performance. (5)Before making an order for reviewable action, the Commissioner: (a)must cause to be served on the police officer a notice that identifies the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the Commissioner intends to make the proposed order, and (b)must give the police officer 7 days from the date of service of the notice within which to serve notice on the Commissioner that he or she intends to make written submissions to the Commissioner in relation to the proposed order, and (c)must take into consideration any written submissions received from the police officer: (i)during the period of 7 days referred to in paragraph (b), or (ii)if during that period the police officer serves notice on the Commissioner as referred to in paragraph (b), during the period of 21 days following the date on which that notice is served. (6)As soon as practicable after making an order for reviewable action, the Commissioner must cause written notice that the order has been made to be served on the police officer concerned. The notice must be served personally or (if personal service is impracticable) by post. (7)The written notice must contain the terms of the order and must indicate: (a)the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the order has been made, and (b)whether the order results from a complaint that has been investigated, or is being investigated, under Division 5 of Part 8A, and (c)the Commissioner's reasons for making the order. (8)An order for action referred to in subsection (2) takes effect: (a)in the case of non-reviewable action, when the order is made, or (b)in the case of reviewable action, at the expiry of the time within which an application for a review of the order may be made under section 174 or, if such an application is made within that time, when the application is finally determined. (9)Except as provided by Division 1A: (a)no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b)no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission. (10)Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action. (11)Nothing in Division 1A limits or otherwise affects the Commissioner's power to vary or revoke an order in force under this section. (12)Despite section 31, the Commissioner's functions under this section may only be delegated to a member of the NSW Police Force who is senior to the police officer in respect of whom those functions are being exercised. 181D Commissioner may remove police officers (1)The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. (2)Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister. (3)Before making an order under this section, the Commissioner: (a)must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and (b)must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c)must take into consideration any written submissions received from the police officer during that period. (4)The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force. (5)The removal takes effect when the order is made. (6)(Repealed) (7)Except as provided by Division 1C: (a)no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b)no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission. (7A) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action. (7B) Nothing in Division 1C limits or otherwise affects the Commissioner's power to vary or revoke an order in force under this section. (8)For the purposes of this Act, removal of a police officer from the NSW Police Force under this section has the same effect as if the police officer had resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from the NSW Police Force. (9)The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the police officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action. 39Both the appellant and the respondent submitted that Pt 9 of the Police Act did not apply to probationary constables. The appellant, in particular, submitted that the provisions and application of ss 173 and 181D could not, in reality, apply to probationary constables. Accordingly, it was said that Pt 9 should be construed as reflecting the intention of the legislature that its provisions not apply to probationary constables. 40At the heart of this submission is the power given to the Commissioner by s 80(3) to dismiss a probationary police officer "at any time and without giving any reason." Such a power would be incompatible with the type of orders that might be made by the Commissioner under s 173(2). A probationary constable, being at the lowest rank, could not have his or her rank, grade or seniority reduced or any salary increment deferred. Furthermore, it was said, that provisions such as s 173(5) would be irrelevant to and inconsistent with any right of dismissal at any time and without giving any reasons therefor. 41Because of the conclusion to which we have come and the reasons therefor, it is not necessary for us to consider the correctness of that part of the submission that deals with the application of Pt 9 to probationary police officers. However, the provisions of Pt 9 as a whole serve to contrast the position of police officers generally with probationary constables. 42Division 1 of Pt 9 provides for the taking of non-reviewable action or reviewable action by the Commissioner in the case of misconduct or unsatisfactory performance. There are detailed provisions to ensure, in summary terms, that natural justice is afforded to any police officer against whom the Commissioner determines to take action under this Division. The Commissioner is bound to take the steps set out in s 173(5) including adherence to the time limits which are set out. Furthermore, after making an order for reviewable action, the Commissioner is bound to comply with the provisions of s 173(6) and (7). 43Significantly, s 173(9) forbids the review or consideration of any decision or order of the Commissioner made under s 173 and forbids the making of any appeal from such a decision other than as set out in the provisions of Div 1A. It is clear, in our opinion, that with respect to reviewable action there is an intention on the part of the legislature to establish a separate mechanism for the review of and appeal from any decision of the Commissioner made under s 173. 44Indeed, this conclusion is reinforced by the provisions of Div 1A, which set out the function and powers of the IRC in reviewing any order made by the Commissioner under Div 1. These detailed provisions must, by necessity, indicate that there is established an exclusive regime to deal with the review of any such order. Following the mandatory conciliation process, the Commission's powers are circumscribed by s 177. The manner in which the powers are to be exercised is dealt with in ss 178 to 180. Some only of the provisions of the Act are said to apply. 45Division 1B allows summary removal of police officers in whom the Commissioner does not have confidence. 46The power of the Commissioner to remove police officers and the processes that must be taken by the Commissioner in effecting such a removal are set out in detail in s 181D. The sole ground is a loss of confidence in the officer's suitability to continue as a police officer. That loss of confidence must result from "competence, integrity, performance or conduct." 47As is the case of reviewable action taken under Div 1A, there are provisions which limit the review or consideration of, or an appeal taken from, any decision or order of the Commissioner made under s 181D. There is specifically preserved the right of review inherently vested in the Supreme Court of New South Wales with respect to administrative action. Apart from this, matters of review, consideration or appeal are to be dealt with exclusively by Div 1C. This vests the power and function of review within the Industrial Relations Commission. 48Significantly, however, there are detailed provisions contained within Div 1C that apply to the function and powers of the Commission in conducting a review. By way of example: a) The Commissioner is obliged to make available to the applicant all of the documents and other material on which the Commissioner has relied. (s 181E(3)) b) The Commission is constrained to proceed in a particular manner taking steps in a particular order. (s 181F(1)) c) There is specific provision creating a burden of satisfying the Commission in s 181F(2). d) The Commission is compelled to take into account the interests of the applicant and the public interest including the interests of maintaining the integrity of the NSW Police Force and the fact that the Commissioner has made an order under s 181D. (s 181F(3)). e) Certain provisions of the Industrial Relations Act 1996 are deemed to apply by s 181G but are modified. Significantly, s 163 is significantly modified in terms of the adducing of new evidence. f) There are restrictions on the compellability of certain persons to give evidence, as set out in s 181H. g) Certain provisions of the Evidence Act are specifically modified as referred to in s 181I. h) The power and functions of the Commission may only be exercised by a judicial member. 49It may be deduced from the detailed provisions contained within Div 1C that the legislature intended to establish an exclusive regime to deal with any review or consideration of, or appeal from, a decision of the Commissioner made under s 181D. 50As we have already stated, we consider that the provisions of Pt 9 of the Police Act are indicative of a comprehensive regime to deal with these matters. Our conclusion accords with observations concerning these provisions contained within the judgment of Spigelman CJ in Commissioner of Police of New South Wales v Industrial Relations Commission of New South Wales [2009] NSWCA 198; (2009) 185 IR 458 at [26] and following. 51In his submissions, the respondent sought to characterise the right of dismissal given under s 80(3) of the Police Act as one that would accommodate the application of Pt 6 of Ch 2 of the Act. This is, as the appellant submitted, an overly simplistic view of the provisions of s 80(3) of the Police Act without an appropriate consideration of the words used in the subsection and the context in which the subsection operates, namely given the presence in the Police Act of Pt 9. 52The right of dismissal under s 80(3) of the Police Act applies to a probationary police officer with all of the notions attaching to someone who is engaged on a probationary basis. The section specifically provides that the dismissal may occur at any time and without giving any reason. This is indicative of a large measure of discretion, in terms of the dismissal of probationary police officers. The entitlement to dismiss without notice and, significantly, without giving any reason of any kind, is to be contrasted with the detailed provisions contained within Pt 9 of the Police Act and in particular s 181D which establishes a protocol binding on the Commissioner that must be undertaken before any order is made under that section. The giving of notice, and the requirement to take into consideration any written submissions are in stark contrast to the circumstances in which the power under s 80(3) may be exercised. Likewise, the manner in which s 80(3) of the Police Act is framed is indicative of the intention of the legislature to exclude a dismissal under s 80(3) from the power and jurisdiction of the Commission under Pt 6 of Ch 2 of the Act, for reasons which we have earlier discussed. 53The respondent submitted that the conclusion to which we have come has the effect of depriving a probationary constable of rights that are given to other employees under s 84 of the Act and leaves such a person with no remedy in the case of a dismissal which is harsh, unreasonable or unjust, save that may be available at common law. Such a submission has some substance. However, there are two significant reasons why it should not alter the conclusion we have reached in this matter. The first is that the construction of the Police Act is, as we have discussed, clear. 54We note that in Nassar v Public Service Board (1986) 16 IR 394, the Full Commission of the Industrial Commission of South Australia dealt with an application by a community welfare worker who had been employed on a 12 month period of probation and whose services had been dispensed with before the expiry of that period. He had brought proceedings under the then Industrial Conciliation and Arbitration Act 1972 (SA) , applying for reemployment on the ground that the dismissal was harsh, unjust or unreasonable. At first instance, and on appeal, it was held that there was no jurisdiction to deal with such a matter. The circumstances of his employment were governed by the then Public Service Act 1967 (SA), which provided in effect that every person first appointed to an office in the Public Service shall be appointed in the first instance on probation and that the services of such a person "may be dispensed with by the appointing authority at any time during his period of probation." The Commission at first instance and on appeal held that there was a necessary implication by reason of the Public Service Act "that a person on probation should have no access to s 31 of the Industrial Act in the event of a termination of his services during the period of his probation." (At 395.) The Full Commission said: In the event of termination, it seems inconceivable that the legislature would have intended that a public servant should be governed, according to whether or not he is on probation, by two entirely separate and unrelated sets of review procedures and by two entirely separate and unrelated reviewing authorities. In a case where the appointing authority is the Governor it also seems inconceivable that the legislature would have intended that the Industrial Commission should have jurisdiction and power to interfere with a decision by the Governor ... to dispense with the services of a person on probation during the period of probation. If the intention was that the termination of a person on probation should be reviewable, surely the legislature would have adopted the simple and straightforward expedient of enlarging the scope of the review procedures of the Public Service Act . (At 395-6) 55Secondly, the counterpoint to the respondent's submission is that the construction proposed by the respondent, namely, that the probationer would have rights under s 84 of the Act would result, as the appellant submitted, in the probationary constable effectively having greater rights than the constable in the case of a dismissal or removal (given the limitations imposed by Pt 9 of the Police Act). Other legislative provisions 56The appellant sought to rely on provisions of s 88 of the Police Act in support of his contentions that the Commission did not have jurisdiction or power in relation to the dismissal of probationary police officers. The effect of s 88(1) is to exclude as an industrial matter under the Act the appointment of or failure to appoint a person to a vacant non-executive position within the New South Wales Police Force. We do not see how this section can have any relevance to our determination of the issue in these proceedings. It is not necessary that we refer to this matter further. 57The respondent sought to rely on s 218 of the Police Act , which is in the following terms: 218 Industrial Relations Act 1996 not affected (1)The Industrial Relations Act 1996 is not affected by anything in this Act. (2)Subsection (1) does not limit section 44 or 89 or any provision of the Industrial Relations Act 1996. In his submissions, the respondent asserted that s 218 was a complete answer to the appellant's submissions. 58The principles to be applied in considering whether there is inconsistency in provisions of the kind contained within s 218 in the context of more specific provisions of other legislation are well known. They are discussed in the High Court of Australia in Rose v Hvric [1963] HCA 13; (1963) 108 CLR 353. The test, which seemingly the Court applied in that case, was to consider whether or not the two pieces of legalisation under consideration could "work together"(at [11]). We have found the decision of the New South Wales Court of Appeal in Public Service Association of New South Wales v Industrial Commission of New South Wales (1985) 1 NSWLR 627 more helpful. However, in considering that decision, care needs to be taken to accommodate the focus of attention which was on the particular words used in the Public Service Act , namely "unless otherwise expressly provided, nothing in this Act affects the Industrial Arbitration Act ...." 59In his judgment, Street CJ referred first to Rose v Hvric and then observed that the words "expressly provided" "merely serve to emphasise the generality of the main provision by making clear that no case is outside that provision unless that is the necessary result of the operation of another enactment according to the intention it manifests ..." (quoting from Rose v Hvric ). Street CJ also referred to whether or not there was an implied contradiction in the two pieces of legislation such that "the two cannot live together." 60Street CJ concluded that particular provisions contained within the Public Service Act , which dealt specifically and in a positive manner with the circumstances of redundancy, necessarily contained "a negative implication precluding the making of an Award inconsistent in operation, or in contradiction of the enactments ...." (at 636). 61A superficial review of Pt 9 of the Police Act is sufficient to enable a conclusion that s 218(1) cannot mean what is prima facie expressed in the subsection. There are specific provisions which we have earlier set out that directly impact upon the application of certain provisions of the Act to the circumstances set out in Pt 9. A ready example is s 179(1) of the Police Act which particularises certain provisions of the Act, which do not have effect. In these circumstances, it cannot be said that the Act is not affected by anything in the Police Act . It is clearly affected. It is erroneous to argue that the provisions of s 179 of the Police Act have no effect because of the application of s 218 of the Act. 62Accordingly, s 218 must have some other meaning. Its construction must be approached in the same manner adopted by the Court of Appeal in the Public Service Association case. That is, positive statements about certain matters will have the necessary effect of negativing the jurisdiction and powers created by the Act. 63We would construe this provision as leaving intact the power of the Commission to deal with industrial matters covering police officers unless especially restricted by some provision of the Police Act . This conclusion is consistent with the judgment of the Full Commission of the Industrial Commission of South Australia in Nassar (at 395). 64Reference was also made by the respondent to s 405 of the Act. It is in the following terms: 405 Statutory provisions relating to public sector employees (1)Any award or order of the Commission does not have effect to the extent that it is inconsistent with: (a)a right of appeal under Part 7 of Chapter 2 or the Police Service Act 1990, or (b)a function under the Police Service Act 1990 with respect to the discipline, promotion or transfer of a police officer, or with respect to police officers who are hurt on duty. (2)The regulations may provide that an award or order of the Commission has effect despite any right or function referred to in subsection (1). (3)This section does not affect any decision of the Commission under Part 6 of Chapter 2 (Unfair dismissals). 65We would construe this provision as excluding the general powers of the Industrial Relations Commission with respect to the discipline of a police officer (s 405(1)(b)). 66We would further construe s 405(3) as referring to a decision of the Commission under Pt 6 of Ch 2 within jurisdiction and power. It is not indicative of any extension of power in circumstances that would lead to a rejection of the conclusion to which we have already come. Orders 67In consequence of the conclusions we have reached as to the disposal of these proceedings, we make the following orders: 1.Leave to appeal is granted and the appeal is upheld. 2.The decision of Commissioner Bishop given on 30 June 2010 is quashed. 3.The application by the respondent, David John Eaton, for a remedy pursuant to s 84 of the Industrial Relations Act 1996 is dismissed. ********** 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: 05 May 2011