Wright and Commissioner of Police [2013] NSWIRComm 77

Industrial Relations Commission New South Wales Medium Neutral Citation: Wright and Commissioner of Police [2013] NSWIRComm 77 Hearing dates: 22 August 2013 Written submissions: 29 August 2013; 6 September 2013 Decision date: 16 September 2013 Jurisdiction: Industrial Relations Commission Before: Staff J Decision: The application to amend save in respect of ground 8 is refused. Catchwords: Application for review - Police Act - applicant seeks to amend application - amendment not part of Order - application refused - s 173, s 174 Police Act 1990, s 170 Industrial Relations Act 1996 Legislation Cited: Industrial Relations Act 1996 Police Act 1990 Category: Interlocutory applications Parties: Mr Grant Wright (Applicant) Commissioner of Police (Respondent) Representation: Counsel: Applicant self-represented Mr S Jauncey, Solicitor, appeared for Respondent Solicitors: Applicant self-represented Henry Davis York (Respondent) File Number(s): IRC 1190 of 2012

DECISION 1Grant Wright ("the applicant") seeks to amend an application filed by him on 28 November 2012 pursuant to s 174 of the Police Act 1990 ("Police Act"). This section enables a police officer to seek a review of an order made by the Commissioner of Police ("the respondent") or his delegate, in circumstances where a police officer has engaged in conduct which has resulted in reviewable management action being taken. 2The respondent opposed the application for amendment.

Background 3On 28 September 2012, the applicant was served with a Notice under s 173(5) of the Police Act, inviting him to show cause why reviewable action should not be taken against him in the form of a disciplinary transfer. 4The Notice contended that the applicant: (a)allegedly disobeyed a direction to attend work and perform duties from 28 December 2011 to 30 December 2011; and (b)allegedly disobeyed directions on 24 May 2012 by the Shift Supervisor Senior Constable Joe Johanson to put his appointments (belt containing pistol, handcuffs, etc) back on as his shift was not completed. 5On 7 November 2012, Superintendent Adrian McKenna, after considering the applicant's response to an investigator's report into the allegations, made the following Order: In all the circumstances, I have formed the view that your misconduct has been shown to be improper and that you should be subject to the action proposed in the Notice. I therefore order the following action: That pursuant to s 173(2) of the Police Act 1990, you will be disciplinary transferred from Griffith Local Area Command to Lake Illawarra Local Area Command. 6Section 174 of the Police Act enables a police officer who is the subject of an order for reviewable action made under s 173 of the Police Act to apply to the Industrial Relations Commission of New South Wales ("the Commission") for a review of the order on the grounds that the order is beyond power or is harsh, unreasonable or unjust. 7Section 174(4) of the Police Act provides that: "An application may not be made by or on behalf of a police officer more than 21 days after the date on which written notice of the making of the order to which it relates was served on the police officer." 8It was common ground that the reviewable Order made by Superintendent McKenna on 7 November 2012 was served on the applicant on that day. 9On 28 November 2012, the applicant filed an application for review under s 174 of the Police Act. 10Pursuant to s 173(8) of the Police Act, the Order does not take effect for 21 days or, if an application for review is made, until the application is finally determined by the Commission. 11On 13 November 2012, Superintendent Michael Rowan advised the applicant that he had taken "interim management action requiring the applicant to undertake work at the Lake Illawarra Local Area Command". 12On 14 December 2012, a directions hearing occurred before Deputy President Harrison. These proceedings were delayed due to the applicant filing an application with the Administrative Decisions Tribunal alleging unlawful discrimination. 13On or about 18 December 2012, a dispute developed between the parties as to whether the applicant was entitled to certain payments under the Crown Employees (Police Officers - 2009) Award ("the Award") as a result of performing work at the Lake Illawarra Local Area Command. The applicant performed work at this Command until late March 2013 when the interim management action was withdrawn. The applicant was then rostered to perform duties at the Griffith Local Area Command. 14On 13 June 2013, a further directions hearing occurred before Deputy President Harrison. The matter was subsequently reallocated to the Commission as presently constituted. I chaired a conciliation conference between the parties on 22 August 2013, when the matter remained unresolved. At the commencement of the proceedings on that day, the applicant sought to amend his application. It was agreed that the Commission would determine the application on the papers.