Ross and Commissioner of NSW Police [2011] NSWIRComm 92

Industrial Relations Commission New South Wales Medium Neutral Citation: Ross and Commissioner of NSW Police [2011] NSWIRComm 92 Hearing dates: 21 - 24 June 2010Written submissions: 9 June 2011 Decision date: 15 July 2011 Jurisdiction: Industrial Relations Commission Before: Staff J Decision: 1. The applicant's removal under s 181D(1) of the Police Act 1990 was harsh. 2. The applicant is reinstated to the NSW Police Force. Catchwords: POLICE - application for review of an order of the NSW Commissioner of Police - Police Act 1990 - removal of applicant by Commissioner under s 181D of the Police Act - removal based on findings that applicant used unreasonable force and wilfully disobeyed a lawful direction not to discuss incident - applicant charged with assault - convicted by magistrate - dismissal prior to appeal to District Court of New South Wales - appeal upheld decision of magistrate quashed - applicant suffered work related injury prior to incident - applicant found unfit for employment in NSW Police Force - removal found to be harsh - consideration of s 89 of Industrial Relations Act 1996 - whether reinstatement can be ordered where applicant unfit for employment - principles - reinstatement ordered - s 181D, s 181E of the Police Act; s 89 of the Industrial Relations Act 1996 Legislation Cited: Industrial Relations Act 1996 Police Act 1990 Workers Compensation Act 1987 Workplace Relations Act 1996 (Cth) Cases Cited: Australian Salaried Medical Officers' Federation (NSW) v Central Sydney Area Health Service [2005] NSWIRComm 339; (2005) 147 IR 56 Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2; (2010) 192 IR 363 Commissioner of Police v Eade-Smith [2010] NSWIRComm 162; (2010) 200 IR 424 Commissioner of Police v Dobbie [2006] NSWIRComm 285; (2006) 157 IR 44 Commissioner of Police v Sewell [2008] NSWIRComm 147; (2008) 180 IR 91 Flanagan v Commissioner of Police [2008] NSWIRComm 138; (2008) 180 IR 85 Hessenberger v Commissioner of Police [2010] NSWIRComm 24; (2010) 191 IR 468 Hosemans v Commissioner of Police [2004] NSWIRComm 253; (2004) 138 IR 159 McIntosh v Webster (1980) 43 FLR 112 Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47; (2010) 193 IR 244 Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 420 Wells v Commissioner of Police [2000] NSWIRComm 157; (2000) 100 IR 106 Woodley v Boyd [2001] NSWCA 35 Texts Cited: X Category: Principal judgment Parties: Jamie Ross (Applicant) Commissioner of New South Wales Police (Respondent) Representation: Counsel Mr T Edwards of counsel (Applicant) Mr P Skinner of counsel (Respondent) Solicitors Harris Wheeler Lawyers (Applicant) McCabe Terrill Lawyers (Respondent) File Number(s): IRC 2268 of 2008