Industrial Relations Commission New South Wales Medium Neutral Citation: Ross and Commissioner of NSW Police (No 2) [2011] NSWIRComm 122 Hearing dates: Written submissions: 5 August 2011, 11 August 2011 Decision date: 07 September 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. 3. The Commission orders that the respondent pay to the applicant an amount which equates with the remuneration that the applicant would, but for being dismissed, have received in the intervening period between dismissal, reinstatement and/or medical retirement, less any amounts received as payments in respect of workers compensation or derived from alternative employment. This amount is to be paid as soon as practicable and within 21 days from the date of this decision. 4. The Commission orders that the period of employment of the applicant with the employer shall be taken not to have been broken by the dismissal. The intervening period between dismissal and reinstatement of the applicant shall be counted for all purposes as a period of employment. 5. The parties have liberty to have the matter restored to the list to determine any dispute that may arise in respect of order 3. Catchwords: POLICE - unfair dismissal - removal of applicant found to be harsh - whether applicant entitled to continuity of service upon reinstatement being ordered - held - applicant entitled to order for continuity of service - Industrial Relations Act 1996, s 89(4) Legislation Cited: Industrial Relations Act 1996 Police Act 1990 Workers Compensation Act 1987 Cases Cited: Ross and Commissioner of NSW Police [2011] NSWIRComm 92 Category: Separate question 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 Judgment 1In Ross and Commissioner of NSW Police [2011] NSWIRComm 92, I determined that the removal of Mr Jamie Ross ("the applicant"), from the NSW Police Force pursuant to s 181D(1) of the Police Act 1990 by order of the Commissioner of Police ("the respondent") was harsh. 2I ordered that the applicant be reinstated to the NSW Police Force. I invited the parties to provide written submissions in respect of what orders, if any, should be made regarding the applicant's continuity of service (s 89(4) of the Industrial Relations Act 1996). 3The parties agreed to have this issue determined upon their further written submissions. Each party filed further submissions. However, the respondent sought leave to file additional submissions. Although the Commission granted this application, which was opposed by the applicant, the respondent subsequently advised that he no longer wished to supplement his submissions. 4The respondent opposed an order for continuity of service for the following reasons: a. The Applicant is clearly not returning to active duty but being restored to his employment as a police officer on sick leave; b. the Applicant stated in his affidavit dated 10 February 2010 (exhibit A5 in the proceedings) that he had been informed by his doctor that he was unable to return to work as a police officer as a result of his Post Traumatic Stress Disorder; c. the Applicant further stated in his affidavit dated 10 February 2010 that if the Commissioner's order was set aside he would be entitled to a medical discharge; d. even if the Applicant was certified fit to resume active duties he was unwilling to return to police work; e. the Applicant has been in gainful employment since his last day of service with the New South Wales Police Force on 24 July 2007; f. in view of the nature of the conduct that led to the applicant's removal from the NSW Police force, he should not receive any recognition for continuity of service; g. the applicant is returning to a position of a police officer receiving worker's compensation benefits with an ongoing medical discharge application under the Crown Employees (Police Officers Death and Disability) Award 2005. As such, continuity is, in effect, frozen, as at the last day of the applicant's active service, being 24 July 2007. 5In light of my finding that the decision of the respondent to remove the applicant from the NSW Police Force was harsh, there is no substance in the submission that the "nature of the conduct that led to the applicant's removal", should disentitle him to an order for continuity of his service. I have determined that the removal of the applicant from the NSW Police Force was harsh. 6The consideration of whether the applicant is willing to return to police work, in my view, should not be given weight, particularly in circumstances where the medical evidence is that the applicant cannot resume active duties. 7Having concluded that the removal of the applicant was harsh, I determined that the principles in Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 should be applied: see Ross and Commissioner of NSW Police [2011] NSWIRComm 92 at [104] - [124]: 8Upon the dismissal of the applicant being set aside, the applicant is restored to the status quo ante, that being, a worker on worker's compensation benefits. In accordance with the Workers Compensation Act 1987, the applicant has a positive obligation to rehabilitate himself by seeking alternate employment. The applicant should not be disadvantaged for ameliorating his economic loss by attempting to find secure alternate employment following his dismissal by the respondent. 9The applicant's inability to return to active duty was because he was suffering from a Post Traumatic Stress Disorder which was caused by his employment with the respondent and unrelated to the incident that led to his dismissal. 10For these reasons, I propose to order the applicant's continuity of service. The final orders, including the order for reinstatement I made on 15 July 2011 will therefore be as set out below. I dissolve the interim stay. Orders 11I make the following orders: 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. 3. The Commission orders that the respondent pay to the applicant an amount which equates with the remuneration that the applicant would, but for being dismissed, have received in the intervening period between dismissal, reinstatement, and/or medical retirement, less any amounts received as payments in respect of workers compensation or derived from alternative employment. This amount is to be paid as soon as practicable and within 21 days from the date of this decision. 4. The Commission orders that the period of employment of the applicant with the employer shall be taken not to have been broken by the dismissal. The intervening period between dismissal and reinstatement of the applicant shall be counted for all purposes as a period of employment. 5. The parties have liberty to have the matter restored to the list to determine any dispute that may arise in respect of order 3. ********** 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: 07 September 2011