Commissioner of Police v Ross [2012] NSWIRComm 17

Industrial Relations Commission New South Wales Medium Neutral Citation: Commissioner of Police v Ross [2012] NSWIRComm 17 Hearing dates: 14 February 2012 Decision date: 29 March 2012 Before: Boland J, President, Walton J, Vice-President, Backman J Decision: The Full Bench makes the following orders: (1) Leave to appeal is granted. (2) The appeal is dismissed. (3) Orders (1) to (4) of his Honour's orders in Ross v Commissioner of New South Wales Police (No 2) [2011] NSWIRComm 122 are confirmed. (4) The stay order of 28 September 2011 is dissolved. Catchwords: APPEAL - POLICE - Application by Commissioner of Police for leave to appeal and appeal from decision at first instance to order reinstatement of a police officer - Officer removed pursuant to s 181D of Police Act 1990 on grounds of use of unreasonable force against a person who had been taken into custody and for willfully disobeying a lawful direction - Whether primary judge erred in finding removal was harsh - Whether Commission has jurisdiction under s 89(1) of the IR Act to order reinstatement of a worker who is permanently unfit for work - Consideration of Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 and Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47; (2010) 193 IR 244 - Leave to appeal granted - Appeal dismissed Legislation Cited: Crimes Act 1990 Industrial Arbitration Act 1940 Industrial Relations Act 1996 Law Enforcement (Powers and Responsibilities) Act 2002 Police Act 1990 Workers Compensation Act 1987 Workplace Relations Act 1996 (Cth) Cases Cited: Anderson v Northern Co-Operative Meat Company Pty Limited [2004] NSWIRComm 300; (2004) 137 IR 404 Big W Discount Stores v Donato [1994] NSWIRComm 144 Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 Cachia v State Authorities Superannuation Board (1993) 47 IR 254 Casari v Sydney South West Area Health Service (2009) 185 IR 217; [2009] NSWIRComm 103 Commissioner of Police for New South Wales v Lawrance [2011] NSWCA 377 Commissioner of Police v Eade-Smith [2010] NSWIRComm 162; (2010) 200 IR 424 Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47; (2010) 193 IR 244 Finch v Sayers [1976] 2 NSWLR 540; Hilton Hotels of Australia Limited v Pasovska [2003] NSWIRComm 17; (2003) 122 IR 428 Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 Police Service of New South Wales v Honeysett [2001] NSWCA 452; (2001) 115 IR 243 Retail Traders Association of NSW v Shop, Distributive and Allied Employees Association of NSW (1990) 36 IR 38 Ross v Commissioner of NSW Police [2011] NSWIRComm 92 Ross v Commissioner of NSW Police (No 2) [2011] NSWIRComm 122 Wells v Commissioner of Police [2000] NSWIRComm 157; (2000) 100 IR 106 Category: Principal judgment Parties: Commissioner of Police (Appellant) Jamie Ross (Respondent) Representation: Mr M Kimber SC with Mr P Skinner of counsel (Appellant) Mr B Dooley SC with Mr T Edwards of counsel (Respondent) McCabe Terrill Lawyers (Appellant) Harris Wheeler Lawyers (Respondent) File Number(s): IRC 1536 of 2011 Decision under appeal Citation: Ross and Commissioner of NSW Police [2011] NSWIRComm 92 Ross and Commissioner of NSW Police (No 2) [2011] NSWIRComm 122 Before: Staff J File Number(s): IRC 2268 of 2008