Criss Shorrock and NSW Police Force [2014] NSWIRComm 1008

Industrial Relations Commission New South Wales Medium Neutral Citation: Criss Shorrock and NSW Police Force [2014] NSWIRComm 1008 Hearing dates: 12 November 2013 Decision date: 14 July 2014 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: Claim dismissed Catchwords: Appeal Against decision of the Commissioner of Police to grant or refuse leave of absence when hurt on duty; Legislation Cited: Industrial Relations Act 1996 Workers Compensation Act 1987 Police Regulation 2000 Cases Cited: Attorney General's Department v K [2010] NSWWCCPD 76; State Transit Authority of New South Wales v Chelmer [2007] NSWCA 249 Category: Principal judgment Parties: Mr Criss Shorrock (Applicant) Commissioner of Police (Respondent) Representation: Mr Paul Stockley, Counsel (Appellant) Ms Jane Petrolo, Counsel (Respondent) Mr Paul Thomas Walter, Walter Madden Jenkins (for the Appellant) Mr James Vandervord, Vandervord Solicitors (for the Respondent) File Number(s): IRC 1234 of 2012

DECISION

Chronology 1Mr Criss Shorrock (the Appellant), 49 years of age, joined the Academy on 1 April 1987 and was attested as a Constable of Police on 26 June 1987. He currently holds the rank of Detective Senior Constable and is attached to Fingerprint Operations, Identification Services Branch, Police Headquarters. 2During the course of his employment, he has performed general, operational and specialist police duties, including fingerprint duties, at various locations. 3On 12 June 2003, the Appellant sustained an injury to his lumber spine whilst at work doing fingerprint duties. The injury was classified as hurt on duty and he was absent until he was certified fit for duty on 15 October 2003, albeit with a number of restrictions. The WorkCover medical certificate he provided listed the following restrictions: He was required to work 12-hour shifts; He was not to lift more than 10 kilograms; He was not to engage in unarmed combat; and He was not to perform operational police duties. 4In accordance with the requirements of the WorkCover medical certificate, the Respondent commissioned a workplace assessment from Regain Health Management on or about 27 October 2003. 5As a result, the Appellant was stationed to work in the Tenprint Section, Fingerprint Operations, Identification Services Branch, on a permanent basis working in accordance with the restrictions identified in his (15 October 2003) WorkCover certificate. 6The Appellant consulted Dr A Oertel and obtained a report dated 17 June 2005 regarding the ongoing need for him to continue on 12 hour shifts. 7On 6 December 2005, the Appellant was advised by letter from Mr Peter Driscoll, Manager, Restricted Duties Co-Ordination Unit, that he was placed on permanent restricted duties as a result of the lumber spine condition. 8On 2 July 2009, the Appellant filed a subsequent claim for aggravation of his lower back and neck injuries. The claim was approved and the injury was classified as Hurt on Duty on 17 August 2010. Further restrictions were placed on the performance of his duties. 9In early August 2011, whilst working in Tenprints, the Appellant forwarded an email to Mr Tony Bush, Sergeant, seeking training in certain procedures - Digital Imaging (DIMS), WorkMate and Powerpoint presentations which, he said, he required at times to fulfil his duties either as team leader or as a senior experienced fingerprint expert. 10On 18 August 2011, an email from Detective Sergeant Bush was forwarded to the Appellant and 24 other experts seeking expressions of interest (EOI) for the first rotation to the Latent section to commence on 18 September 2011. The decision was made - ... after hearing of staff dissatisfaction with the lack of training with new systems such as Workmate and DIMS. It was felt that a normal rotation by the experts from tenprints would help to alleviate the experts concerns about their lack of training and knowledge of the new systems that have been implemented within Fingerprint Operations.... 11In the absence of any EOIs, the Respondent selected the Appellant to commence the rotation. Shortly after, the Appellant received a new roster prepared by the Roster Clerk, Ms Zammit, which spelt out that, starting from 18 September 2011, he would transfer to the Latents Section on 9.5 hour shifts for training. 12The Fingerprint department is divided into sections - the Tenprint section where fingerprints from a person requiring a particular licence or from an arrested person are compared to fingerprints collected in a database. In the Latent section, the comparison is between fingerprints developed at a crime scene (a latent fingerprint) against the same database on the same computer system in the same floor and in the same location. 13In the absence of any discussion or comment from the Command, the Appellant said he spoke to Acting Commander Mitchell Turner and Sergeant Tony Bush reminding them of his medical restrictions, particularly in relation to the requirement to work 12-hour shifts. 14The Appellant attended on his General Practitioner, Dr Hanif, on 23 August 2011 complaining of feeling very disturbed and anxious about what was going on at work and its effect on his back and neck injuries. 15The Appellant reported that he suffered psychological injury in the form of Adjustment Disorder with Mixed Anxiety and Depressed Mood (ADMADM) during the course of August 2011 to September 2011 as a result of the proposed changes to his work hours and transfer. 16The Appellant contacted the Police Association (the Association) on or about 24 August 2011 for assistance. Also on or about 24 August 2011, the Appellant contacted Ms Heasman of the Rehabilitation and the Hurt on Duty Units. The Appellant complained that the Commander was not complying with the Respondent's duty of care obligations in relation to the previous injuries by continuing to provide the Appellant with 12 hour shifts. 17On 6 September 2011, the Appellant again attended on Dr Hanif complaining of feeling very stressed and anxious and obtained a report from her in that regard. 18On 18 September 2011, the Appellant did not commence duties with the Latents Section as proposed in the roster. 19The Appellant said he spent some time on 21 September 2011 making enquiries from numerous trainers and supervisors to obtain an idea as to how much time was required for the DIMS training. 20On 22 September 2011, the Appellant had a conversation with Detective Sergeant Bush during which he was informed that he was allowed to work 12 hour shifts in Latents given his medical restrictions. 21On 23 September 2011, the Appellant had a conversation with Sergeant Turner about his grievances. Sergeant Turner completed and submitted an Incident Notification Form in relation to that conversation. The Appellant consulted Dr Hanif on the same day complaining of emotional anxiety, tearfulness, sleep disturbance and irritability. Dr Hanif issued a WorkCover medical certificate certifying him unfit for work from 23 September 2011 to 7 October 2011. 22In late September 2011/early October 2011, the Appellant consulted Mr G Pankhurst, Police Psychologist. 23On 7 October 2011, the Appellant obtained another WorkCover medical certificate from Dr Hanif for the period 7 October 2011 to 21 October 2011 inclusive. In addition, Dr Hanif referred the Appellant to Mr S Borenstein, psychologist who he consulted on seven occasions from 7 October 2011 to 20 January 2012 inclusive and obtained reports from him. 24On 21 October 2011, Dr P Choueifati issued the Appellant with a WorkCover medical certificate certifying him fit for suitable duties from 22 October 2011 to 18 November 2011. 25Also on 21 October 2011, the Tenprints Commander signed a claim form certifying satisfaction that the injury/illness was received in the manner reported. 26On 1 November 2011, the Appellant submitted a "Claim for Hurt on Duty Benefits form" alleging that he had sustained the "psychological" injury during the course of his duties for which his employment was a substantial contributing factor and which eventually rendered him unfit for operational duties. The injury, he claimed, resulted from the 22-23 September 2011 incidents - Whilst in discussions/arguments with Sgt T Bush on the 22/9/11 at 4 pm and further discussions/arguments with Sgt Turner on the 23/9/11 about my placement regarding negotiated agreements/WorkCover restrictions/Permanent Restricted duties position in Tenprints/Letters from my treating Doctor and Chiropractor. 27On 18 November 2011, Dr Hanif issued the Appellant with a WorkCover medical certificate certifying him fit for suitable duties from 18 November 2011 to 25 November 2011. 28On 26 November 2011, Dr P Choueifati issued the Appellant with a WorkCover medical certificate certifying him fit for suitable duties from 26 November 2011 to 12 December 2011. 29On 30 Nov 2011, the Police Commissioner declined to classify the Appellant's absence from duty as hurt on duty. 30On 12 December 2011 Dr P Choueifati issued the Appellant with a WorkCover medical certificate certifying him fit for suitable duties from 13 December 2011 to 21 December 2011. Also on the same day, the Appellant consulted Mr Borenstein and obtained a report. 31Dr Hanif prepared a report to the Respondent on 21 December 2011 regarding the Appellant's psychological condition. 32On 20 January 2012, Dr Hanif issued a WorkCover medical certificate certifying the Appellant as fit for pre-injury duties as his symptoms had resolved. 33On 22 January 2012, Mr Borenstein, Psychologist, provided a report in relation to the psychological injury. 34On 22 February 2012, Detective Senior Sergeant Miller emailed Sergeant Turner confirming that a workplace assessment had been undertaken and completed on that day. That email was forwarded to the Appellant on 24 February 2012. 35The Appellant commenced with the Latents section, Volume Crime Analysis Unit, Fingerprint Operations, Identification Services Branch In March 2012. 36The period of absence from work as a result of that injury were paid for out of the Appellant's accrued sick leave. The Appellant was advised on 5 December 2012 that his appeal to the Police Commissioner to have that period of absence classed as a period when he was hurt on duty had been rejected. 37On 13 December 2012, The Appellant brought an appeal pursuant to Regulation 98 of the Police Regulation 2000 (as saved by regulation 138 of Police Regulation 2008). The grounds of the appeal were: Respondent failing to adhere to WorkCover requirements in reducing the Appellant's hours on the proposed roster at the time Enquiring with Detective Sergeants in an attempt to remedy the issue Suffering psychological injury as a result of the failures and interactions with supervising Detective Sergeants Taking leave as a result of the psychological injury under sick leave On 1 November 2011, the Appellant submitted a Claim for Hurt on Duty Benefits form to the Respondent for a 'psychological' injury, with respect to the Appellant's claim of suffering a psychological injury during the course of his duties is for which his employment was a substantial contributing factor, and which eventually rendered him unfit for full operational duties. 38The appeal is in relation to the following periods: Total incapacity for duty on and between 23.09.11 - 21.10.11 inclusive Partial incapacity for duty on and between 22.10.11-19.01.12 inclusive The Appellant argued that his employment was a substantial contributing factor to the cause of his ADMADM which had resulted directly from the bullying actions of the two Acting Sergeants and the Inspector. The Appellant is seeking to have all his leave re-credited as hurt on duty thus enabling him to recover his bank of sick leave entitlements for future use, if the need arose. 39Prior hurt on duty claims were not in dispute between the parties. 40Conciliation attempts before Newall C on 21 August 2013 were unsuccessful. 41The matter was listed for hearing on 12 November 2013 at which time Mr Paul Stockley, Counsel, appeared on behalf of the Appellant and called evidence from the Appellant, Detective Senior Constable Criss Shorrock. Ms Jane Petrolo, Counsel, appeared on behalf of the Respondent and called evidence from: Detective Senior Sergeant Wayne Peter Miller Detective Sergeant Tony Scott Bush A statement was received from Detective Sergeant Mitchell Scott Turner. He was not required for cross-examination.