Industrial Relations Commission New South Wales Medium Neutral Citation: McDonald v Commissioner of Police (No 2) [2016] NSWIRComm 1032 Hearing dates: 1 July 2016 Date of orders: 29 July 2016 Decision date: 29 July 2016 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The application by Christian McDonald pursuant to section 84 of the Industrial Relations Act 1996 for relief in relation to unfair dismissal is dismissed for want of jurisdiction Catchwords: POLICE – Senior Constable – application pursuant to section 84 for relief in relation to unfair dismissal – application by the respondent that application be struck out on the ground that the Commission does not have jurisdiction – bullying and harassment at work – discrimination in the course of employment – unwarranted investigation into conduct outside of work hours – diagnosed with depression/anxiety and deemed unfit for work – no option other than to resign from employment – constructively dismissed – rights of appeal for police officers – comparison of rights conferred by Part 9 of the Police Act with rights conferred by Chapter 2 Part 6 of the Act – Part 9 of the Police Act 1990 establishes exclusive scheme whereby dismissed police officers are able seek relief – no jurisdiction under Chapter 2 Part 6 of the Act to hear and determine the applicant's unfair dismissal claim – application dismissed Legislation Cited: Police Regulation Act 1899 Police Regulation (Appeals) Act 1923 Industrial Arbitration Act 1940 Crown Employees Appeal Board Act 1944 Government and Related Employees Appeal Tribunal Act 1980 Police Regulation (Appeals) Appeal Tribunal (Amendment) Act 1980 Police Service Act 1990 Police Act 1990 Industrial Arbitration (Unfair Dismissal) Amendment Act 1991 Industrial Relations Act 1991 Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 Evidence Act 1995 Industrial Relations Act 1996 Police Legislation Further Amendment Act 1996 Police Service Amendment Act 1997 Cases Cited: Ferdinands v Commissioner for Public Employment [2006] 225 CLR 130 Commissioner of Police v Eaton [2013] 252 CLR 1 Eaton v Industrial Relations Commission of New South Wales [2012] NSWCA 30 Merritt & Cobar District Hospital (No. 2) 1973 AR 511 Allison v Bega Valley Council (1995) 63 IR 68 Commissioner of Police v Eaton [2011] NSWIRComm 51 Barry Michael Batton v NSW Police Service [1999] NSWIRComm 327 Police Service of New South Wales v Batton [2000] NSWIRComm 79 Police Association v NSW Police (No 3) [2005] NSWIRComm 243 Marcus Lewandowski v NSW Police Force [2009] NSWIRComm 28 Public Service Association and Professional Officers Association Amalgamated Union of New South Wales on behalf of Pearcey Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW ([2012] NSWIRComm 33 David Eaton and Commissioner of Police [2010] NSWIRComm 1035 R v Prince Alfred College 46 SAIR 598 Category: Principal judgment Parties: Christian McDonald (Applicant) Commissioner of Police (Respondent) Representation: Counsel: Mr B Eurell (Applicant) Mr M Seck (Respondent) Solicitors: Carroll & O'Dea Lawyers (Applicant) K&L Gates (Respondent) File Number(s): 2016/00122514 INTERLOCUTORY DECISION 1. The matter before the Commission is an application by Christian McDonald pursuant to section 84 of the Industrial Relations Act 1996 ('the IR Act') for relief in relation to unfair dismissal. The application was filed in the Commission on 21 April 2016. 2. Prior to the termination of the applicant's employment, he was a Senior Constable in the NSW Police Force. The respondent to the application is the Commissioner of Police. 3. On 10 June 2016 the respondent filed a Notice of Motion which, in effect, sought an order from the Commission that the applicant's unfair dismissal application be struck out on the ground that the Commission does not have jurisdiction to hear and determine it. 4. Shortly stated, the respondent submits that Division 1C – Review of Commissioner's decision under Division 1B, of Part 9 of the Police Act 1990 constitutes an exclusive scheme whereby a police officer, whose employment has been terminated, is able to seek reinstatement. According to the respondent's submission, because the applicant was not removed from the police force pursuant to Division 1B – Summary removal of police officers in whom Commissioner does not have confidence, there is no avenue open to the applicant to seek redress. In particular, the applicant is prevented from pursuing relief pursuant to section 84 of the IR Act. Background 1. The applicant joined the NSW Police Force in August 2008, commencing at the Police Academy from which he graduated in August 2009. After his graduation, the applicant was stationed at Newtown Police Station. 2. The applicant claims that, from about 2010 continuing through to March 2016, he was subjected to bullying and harassment at work and/or discrimination in the course of his employment. Between July and December 2015, according to the applicant, he was subjected to an unwarranted investigation into his conduct outside of work hours for reasons which were inter alia discriminatory. 3. According to the applicant, on or about 6 December 2015, he consulted his General Practitioner and was diagnosed with depression/anxiety and was deemed unfit for work. He submitted a workers compensation claim but provisional liability was denied. On or about 8 February 2016, the applicant returned to work and was posted to a position in which he did not have contact with other officers, and was allocated menial duties which were substantially different from general duties, including scanning, archiving and photocopying for ten hours each day for three weeks. 4. The applicant claims that, in late February 2016, he was subjected to further hostile behaviour which caused him concern that he would be prevented from returning to his former position or, if he did, he would continue to be targeted until such time as he left his employment. 5. The applicant took three weeks of personal leave and was due to commence duties at another police station, but experienced deterioration in his medical condition. 6. Between 21 January and 29 March 2016, the applicant's legal representatives sought information and/or assurances from management of the police force that inter alia measures had been, or would be, taken to protect the applicant in his employment. No information or assurances were received. 7. On or about 22 March 2016 the applicant was advised by the workers compensation insurer that his claim was declined. He asked the insurer whether he could see his doctor as he was unwell and still required medical treatment. The applicant claims that he was advised that medical treatment would not be funded and it was suggested that he 'quit and go on Medicare'. 8. According to the applicant, he was distressed, overwhelmed and very unwell by this time. He considered that he had no option other than to resign from his employment, otherwise he would be without an income or exacerbating his injury. 9. On 23 March 2016, the applicant forwarded an email to the Local Area Manager advising of his resignation and attaching a current medical certificate. On the same day the applicant was advised that his resignation was accepted. His last date of service was 31 March 2016. On that day the applicant was advised that his workers compensation claim would be accepted. 10. The applicant claims that he was constructively dismissed and, on 21 April 2016, filed the application for relief in relation to unfair dismissal which is presently before the Commission. This application seeks an order for re-employment to another position. 11. The respondent claims that the Commission does not have jurisdiction to make such an order, or to grant the applicant any other relief pursuant to Chapter 2, Part 6 – Unfair dismissals of the IR Act. Rights of appeal for police officers 1. Historically, rights of appeal for police officers in New South Wales have stood apart from the appeal mechanisms available to other government employees, and to the workforce generally. 2. The Police Regulation Act 1899 contained provisions dealing with appointment, discipline and duties of the police force, but did not provide for any process of appeal for members of the force who were dismissed. 3. The Police Regulation (Appeals) Act 1923 provided a mechanism for police officers to appeal to the Police Appeal Board from certain decisions of the Inspector-General of Police, including a decision to dismiss. 4. With the passing of the Crown Employees Appeal Board Act 1944, police officers were excluded from the appeal mechanism established under that Act, but the Crown Employees Appeal Board, which was created by that statute, replaced Police Appeal Board as the tribunal to hear and determine appeals under the Police Regulation (Appeals) Act. 5. The Government and Related Employees Appeal Tribunal Act 1980 replaced the Crown Employees Appeal Board with the Government and Related Employees Appeal Tribunal ('GREAT'). Police officers, however, continued to have their appeal rights dealt with under the Police Regulation (Appeals) Act. The Police Regulation (Appeals) Appeal Tribunal (Amendment) Act 1980 further amended the Police Regulation (Appeals) Act by replacing the Crown Employees Appeal Board with GREAT as the tribunal to hear and determine police appeals. 6. The Police Service Act 1990 (subsequently renamed the Police Act 1990) repealed and replaced the Police Regulation Act 1899. Section 117 of the Police Service Act stated: 117 (1) The Industrial Arbitration Act 1940 is not affected by anything in this Act. (2) Subsection (1) does not limit section 44 or 89 or any provision of the Industrial Arbitration Act 1940. Sections 44 and 89 provided that any matter relating to the employment of executive officers (s.44) or any matter relating to the appointment of, or failure to appoint, a person to a vacant non-executive position (s.89) was not an industrial matter for the purposes of the Industrial Arbitration Act 1940 ('the 1940 Act'). 1. At the time when the Police Service Act was enacted, the 1940 Act contained no provisions dealing with unfair dismissals. However, section 25 of the 1940 Act enabled the Commission to order the reinstatement of a dismissed employee during compulsory conference proceedings, usually convened pursuant to a notification of an industrial dispute by an industrial union, or an employer, pursuant to section 25A of the 1940 Act (see for example In re Merritt & Cobar District Hospital (No. 2) 1973 AR 511). 2. The right of an individual dismissed employee to seek reinstatement first came about by way of the Industrial Arbitration (Unfair Dismissal) Amendment Act 1991 which inserted sections 91ZA and 91ZB into the 1940 Act. These were the predecessor provisions to Chapter 3, Part 8 – Unfair Dismissals of the Industrial Relations Act 1991 ('the 1991 Act') and Chapter 2, Part 6 Unfair dismissals of the IR Act. 3. Section 245(1)(b) of the 1991 Act provided that the unfair dismissal provisions of that Act applied to the dismissal, or threatened dismissal, of an employee of the Crown. Section 4 defined "employee of the Crown" to include a member the Police Service. Section 83(1)(a) of the IR Act provides that the unfair dismissal provisions of that Act apply to the dismissal of any public sector employee. The Dictionary to that Act defines "public sector employee" to include a member of the NSW Police Force. Despite these provisions, the rights of appeal for dismissed police officers generally continued to be dealt with in legislation specific to the police force. 4. The Police Regulation (Appeals) Act 1923 remained in place until it was repealed and replaced by the Police Service (Complaints, Discipline and Appeals) Amendment Act 1993. This amending legislation inserted Part 9 – Discipline of Members of the Police Service into the Police Service Act. The amending legislation also created the Police Tribunal of New South Wales with the power to hear and determine disciplinary charges against police officers. There was a limited right of appeal to the Review Division of the Police Tribunal. The Police Tribunal would then advise the Minister or the Commissioner of its recommendation with respect to penalty. The Commissioner's disciplinary powers included the power to dismiss a police officer. A dismissed officer could then appeal to GREAT but, if the decision appealed against was in respect of a charge heard and determined by the Police Tribunal, the appeal to GREAT was limited to an appeal against the severity of the punishment. Section 117 of the Police Service Act 1990 was renumbered as section 218. 5. Following the Wood Royal Commission into the New South Wales Police Service, the Police Service Act was further amended to include section 181B which was in the following terms: 181B Dismissal of police officers—information arising out of Police Royal Commission (1) The Commissioner may, by order in writing, dismiss a police officer from the Police Service if the Commissioner has formed the opinion, based on information arising out of the Police Royal Commission, that the officer: (a) has engaged in corrupt conduct (or any other conduct constituting an indictable offence), and (b) is no longer a fit and proper person to hold a position in the Police Service. (2) The dismissal takes effect when the order is made. (3) Before deciding whether to dismiss a police officer under this section, the Commissioner must: (a) give the officer a notice setting out the grounds on which the Commissioner has formed the opinion referred to in subsection(1), and (b) give the officer an opportunity to make a written submission to the Commissioner within 21 days of receiving the notice, and (c) take into consideration any such submission received within that period. (4) Section 182 (Appeal to GREAT against disciplinary decision of Commissioner) does not apply to or in respect of the decision by the Commissioner to dismiss a police officer under this section. (5) Without limiting the generality of section 218 (Industrial Relations Act 1991 not affected), nothing in this section affects Part 8 (Unfair dismissals) of Chapter 3 of the Industrial Relations Act 1991. 1. As a consequence of this amendment to the Police Service Act, police officers, who were dismissed pursuant to section 181B of that Act, had the capacity to pursue an unfair dismissal application before the Industrial Relations Commission. An example of such a proceeding occurred in the matter of Bigg and anor v New South Wales Police Service [(1998) 80 IR 434]. In that matter a Full Bench of the Commission (Bauer and Schmidt JJ, Murphy C), on appeal, found that the dismissal from the NSW Police Service of Mr Bigg pursuant to section 181B, was unjust but declined to order reinstatement. The respondent was ordered to pay Mr Bigg compensation in an amount equivalent to six months remuneration. 2. Section 181B was repealed by the Police Legislation Further Amendment Act 1996 and replaced by section 181D, which was originally in the following terms: 181D Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from the Police Service if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. (2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister. (3) Before making an order under this section, the Commissioner: (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and (b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the police officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the Police Service. (5) The removal takes effect when the order is made. (6) The Supreme Court has jurisdiction to review a decision or order of the Commissioner to remove a police officer under this section. Any such review is to be conducted in accordance with the administrative law principles applicable to the review of decisions that turn on the opinion of a decision-maker. (7) Except as provided by subsection (6): (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes GREAT and the Industrial Relations Commission. (8) For the purposes of this Act, removal of a police officer from the Police Service under this section has the same effect as if the police officer had resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from the Police Service. (9) The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the police officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action. 1. Under this provision, in particular subsections (6) and (7), it was clear that a police officer who was removed from the service had no right to pursue an unfair dismissal application in the Commission. The only available avenue to seek redress was by way of an application to the Supreme Court seeking a review of the Commissioner's decision in accordance with administrative law principles applicable to the review of decisions that turn on the opinion of a decision-maker. 2. It is highly unlikely that the legislature intended, at this time, that a police officer who resigned before being removed by the Commissioner, could pursue an unfair dismissal application in the Commission on the basis of an alleged constructive dismissal, whereas an officer who had been removed from the force was, despite section 218 of the Police Service Act, clearly precluded from doing so. 3. The Police Service Act was again amended by the Police Service Amendment Act 1997. Section 181D was amended by the repeal of subsection (6) and the insertion of subsections (7A) and (7B). The current form of section 181D reads: 181D Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. (2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister. (3) Before making an order under this section, the Commissioner: (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and (b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the police officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force. (5) The removal takes effect when the order is made. (7) Except as provided by Division 1C: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, "tribunal" means a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission. (7A) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action. (7B) Nothing in Division 1C limits or otherwise affects the Commissioner's power to vary or revoke an order in force under this section. (8) For the purposes of this Act, removal of a police officer from the NSW Police Force under this section has the same effect as if the police officer had resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from the NSW Police Force. (9) The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the police officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action. 1. The 1997 amending legislation also inserted Divisions 1C and 1D into Part 9 of the Police Service Act. Division 1C contained the following provisions: Division 1C Review of Commissioner's decision under Division 1B 181E Review generally (1) A police officer who is removed from the Police Service by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the removal is harsh, unreasonable or unjust. (2) An application under this section does not operate to stay the operation of the order in respect of which it is made. (3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D(1). 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the Police Service, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the Police Service is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the Police Service, and the fact that the Commissioner made the order pursuant to section 181D(1)). 181G Application of Industrial Relations Act 1996 to reviews (1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications: (a) section 83 (Application of Part) is to be read as if subsection (3) were omitted, (b) section 85 (Time for making applications) is to be read: (i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and (ii) as if subsection (3) were omitted, (c) section 86 (Conciliation of applications) is to be read as if it provided that a judicial member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review, (d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted, (e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made, (f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless: (i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or (ii) the Commission gives leave. (2) The Commission may grant leave as referred to in subsection (1) (f) (ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances: (a) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information, (b) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently or vexatiously, (c) where the Commission is satisfied that the new evidence might materially have affected the Commissioner's decision. These sections are in substantially identical terms as those appearing in the current Police Act 1990. 1. Despite section 83(1) of the IR Act and section 218 of the Police Act, it is uncontroversial that a police officer, who has been removed from the force by order of the Commissioner, is, in seeking redress, confined to the provisions of Part 9 of the Police Act and does not have access to the provisions of Chapter 2, Part 6 of the IR Act. Part 9, Division 1C of the Police Act establishes an exhaustive regime for dismissed police officers to seek relief. 2. The processes established for this Commission to review a removal order made under section 181D of the Police Act are different in a number of significant respects from the processes which the Commission follows when dealing with an unfair dismissal application under Chapter 2, Part 6 of the IR Act. 3. Section 181F(1) gives primacy to the Commissioner's reasons for the decision to remove the applicant. Section 181F(2) provides that the applicant has, at all times, the burden of establishing that the removal of the applicant is harsh, unreasonable or unjust. Section 181F(3)(b) places an obligation on the Commission to have regard to the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D(1)). 4. These provisions create a number of barriers which an applicant under Part 9, Division 1C of the Police Act must overcome. Barriers of this type do not stand in the way of an applicant under Chapter 2, Part 6 of the IR Act. 5. Section 181G applies the provisions of Chapter 2, Part 6 of the IR Act to applications under Part 9, Division 1C of the Police Act, but with some important modifications: 1. The time for making an application is reduced from 21 days after the dismissal of an employee to 14 days from the day on which a police officer is given a copy of the section 181D Order (s.181G(1)(b)). 2. A member of the Commission who has endeavoured to settle an application by conciliation must not subsequently be involved in the conduct of proceedings on the review (s.181G(1)(c)). 3. The Commission's power to order an employer not to dismiss an employee, who has been threatened with dismissal, has been omitted (s.181G(1)d)). 4. The Commission is required to commence hearing an application within four weeks after the application is made (s.181G(1)(e)). 5. There are restrictions on the ability of the parties to adduce new evidence (s.181G(1)(f) and (2)). 6. Neither the Commissioner, nor any member of the Commissioner's Advisory Panel, is compellable to give evidence unless the Commission gives leave, which may only be given if the Commission considers that extraordinary grounds exist (s.181H). 7. Section 128 of the Evidence Act 1995 applies to witnesses (s.181I). 8. Reviews are to be conducted by a member of the Commission who is an Australian Lawyer. Appeals are to be conducted before a Full Bench of the Commission constituted by one Presidential member who is a judicial member and two other members who are Australian lawyers (s.181K). 1. Significantly, there is no power in the Commission under Part 9, Division 1C of the Police Act to restrain the Commissioner from removing an officer who has been threatened with dismissal, as there is under section 89(7) of the IR Act. The significance of this omission is discussed later in these reasons for decision. Constructive dismissal 1. The applicant claims that the circumstances which led up to him tendering his resignation from the police force amounted to a constructive dismissal. He asserts an entitlement to seek relief pursuant to Chapter 2, Part 6 of the IR Act. 2. The concept of constructive dismissal was considered in R v Prince Alfred College (46 SAIR 598), a decision of Olsson P (as he then was) in the South Australian Industrial Court. In discussing the question of constructive dismissal his Honour said: The so-called doctrine of constructive dismissal has re-emerged and developed rapidly of recent times. Perhaps the most helpful authorities on the topic are to be found in the published reports of the English tribunals. Of these one of the leading decisions is the judgment of the Employment Appeal Tribunal in Sheffield v Oxford Controls Company Ltd (1979) IRLR 133 ("Sheffield's Case"). The facts then before the tribunal are summarised in the headnote to the report in the following terms - The appellant was employed as a director of the respondent company. His wife was also employed by the company. On 31.1.77, there was a disagreement between the appellant's wife and the controlling shareholders of the company. Mrs Sheffield was told that she would have to leave the company and Mr Sheffield responded by stating 'if she goes, I go'. This led to Mr Sheffield being asked how much he wanted to go. He replied 10,000 (pounds). It was said that the company could not pay that all at one time and the meeting broke up. A letter was written to the appellant threatening him that if he did not resign he would be dismissed. He was shown this letter and threatened verbally. Later that day, an agreement was prepared which set out the terms on which Mr Sheffield was prepared to resign. Mr Sheffield and the respondents initialled the agreement and his employment terminated. He claimed unfair dismissal compensation. An Industrial Tribunal found that Mr Sheffield had not been dismissed in law. In the tribunal's reasons for decision Arnold J, having recited the full factual circumstances, reviewed the major decisions published to that time dealing with the doctrine of constructive dismissal. In so doing, he pointed out that virtually all of them arose out of factual circumstances in which the employer indicated to the employee that, if the latter did not resign, then he or she would be dismissed. In summarising the views of the members of the tribunal, Arnold J discussed the principle involved in these terms - ... It is plain, we think, that there must exist a principle, exemplified by the four cases to which we have referred, that where an employee resigns and that resignation is determined upon by him because he prefers to resign rather than to be dismissed (the alternative having been expressed to him by the employer in the terms of the threat that if he does not resign he will be dismissed), the mechanics of the resignation do not cause that to be other than a dismissal. The cases do not in terms go further than that. We find the principle to be one of causation. In cases such as that which we have just hypothesised, and those reported, the causation is the threat. It is the existence of the threat which causes the employee to be willing to sign, and to sign, a resignation later or to be willing to give, and to give, the oral resignation. But where that willingness is brought about by other considerations and the actual causation of the resignation is no longer the threat which has been made but is the state of mind of the resigning employee, that he is willing and content to resign on the terms which he has negotiated and which are satisfactory to him, then we think there is no room for the principle to be derived from the decided cases. In such a case he resigns because he is willing to resign as the result of being offered terms which are to him satisfactory terms on which to resign. He is no longer impelled or compelled by the threat of dismissal to resign, but a new matter has come into the history, namely that he has been brought into a condition of mind in which the threat is no longer the operative factor of his decision; it has been replaced by the emergence of terms which are satisfactory. Therefore we think that the finding that Mr Sheffield had agreed to terms upon which he was prepared to agree to terminate his employment with the company - terms which were satisfactory to him - means that there is no room for the principle and that it is impossible to upset the conclusion of the tribunal that he was not dismissed. Strangely enough, there does not appear to be a great deal of recent reported Australian authority on this topic, although the judgment of Macken J in the New South Wales decision of Re David Jones Ltd v the Australian Workers' Union; Re Levette [1978] AR 206 does contain a dictum which is in strong accord with the approach in Sheffield's Case. In my view, the dicta contained in Sheffield's case, with respect, accurately summarise the relevant principles of law applicable to the case now before me, and I am content to adopt them. There is, as I see it, a fundamental factual difference between the situation which arose in Sheffield's case and that now before me. In the case at bar there is no suggestion that the applicant terminated his employment after negotiation of terms which were satisfactory to him. Nothing changed from the moment of actual original dismissal to the time of alleged constructive dismissal - other than the fact that the employer permitted the substitution of a resignation for the dismissal which had preceded it. There is no doubt, as Mr Bollen QC for the respondent suggested, that in tendering his resignation the applicant meant what he said. But in substance and in fact he had no real choice in the matter. The substitution of the resignation for the dismissal was simply, as it were, an act of clemency accorded him by the respondent; so as to minimise the prejudice to him in obtaining other employment later on. Viewed realistically, the applicant was in exactly the same position as at the time when he tendered his resignation as he would have been if the employer had said to him: 'We will dismiss you if you do not resign of your own accord.' The fact that the act of resignation subsumed the act of dismissal does not alter the essential character of the transactions between the parties. By virtue of the implicit waiver of the original act of formal dismissal by the employer, the applicant was, in reality, in a position in which he had resigned because he had been given virtually no option but to do so - on pain of the formal dismissal remaining in force and acting to his prejudice at a later point of time. For these reasons I am compelled to the view that, at the time at which his employment was terminated, the applicant was constructively dismissed by the respondent. (p. 614-617) 1. It appears from the above extract that a constructive dismissal usually occurred in circumstances where an employee was threatened with dismissal if he or she did not resign. 2. A Full Bench of the Commission (Peterson and Marks JJ, Connor C) in Allison v Bega Valley Council [(1995) 63 IR 68] stated: It is a trite observation that a contract of employment like any contract can come to an end in a number of ways. Termination can be "by" the employer where an employee is "dismissed" either with notice in accordance with the provisions of the contract or without notice in the event of serious and wilful misconduct. Both the employer and the employee may mutually agree that the contract of employment should come to an end. In other cases the employee may bring about the termination by resigning. In some cases the circumstances in which the termination comes about makes it difficult to determine whether there was termination "by" the employer or the employee. There are cases where the courts, after analysis, have determined that although on the face of it an employee has resigned and brought about the termination of the contract of employment, in reality the conduct of the employer has compelled or unduly influenced the employee to resign. The most quoted example is an assertion by an employer to an employee to the effect that the employee must resign or he or she will be dismissed. This situation is commonly referred to in the text books and decided cases as a "constructive dismissal", that is in effect the employer has brought about the termination of the contract of employment. Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation? It is obvious that a consideration of these matters must be made on a case by case basis and that an attempt to formulate general principles in the absence of particular facts will not assist in the overall determination of this issue. In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee particularly where the dynamics within a factual situation may change. For example, an employer may demand a resignation with a threat of dismissal, negotiations may then ensue and the employee may ultimately be genuinely pleased with the outcome of those negotiations to the extent that any resultant resignation may be said to be given freely and without any undue influence being brought to bear by the employer. Where an employee initiates the termination of the contract of employment it is necessary to consider whether that ostensible act of termination was given freely and without any undue pressure. If the ostensible resignation is, in effect, a response to and consistent with a desire by an employer that such resignation be forthcoming, then what has occurred may be that the termination has been brought about by the employer and that in this way the employee has been dismissed. (p. 72-73) The Full Bench then considered the decision of Olsson P in R v Prince Alfred College and stated as follows: In each of the cases cited above the facts involved a resignation in the face of a threat of dismissal by the employer. We note that in Sheffield v Oxford Controls, cited by Olsson P, Arnold J said: "The cases do not in terms go further than that." However, we do not regard anything said in any of these cases as confining the ability to characterise a termination involving a resignation made by an employee as a dismissal by the employer to circumstances where the choice is a threat of dismissal or resignation. What is important is the significance of the threat made by the employer as it impacts upon the resignation of the employee. In the examples given, particularly in the extract from the decision of Arnold J, the threat is no longer a significant factor or alternatively the employee no longer regards the threat as a significant factor. In the circumstances of these proceedings, the threat made by the employer to call in the police was always regarded by Mr Allison as a significant factor. Indeed, the threat of police action and the consequent impact that it would have on Mr Allison and his family were at all material times motivating in his decision ultimately to tender a letter of resignation. It is clear from the evidence that he was otherwise reluctant to do so. Such a threat in our opinion has in the circumstances of these proceedings similar force and effect as a threat of dismissal. There was no doubt in the mind of the General Manager that the threat was real and that Mr Allison so understood it. Given the natural impact that this would have on Mr Allison we regard the threat in the overall context in which it occurred as having the same force and effect in initiating the letter of resignation as if it had been in fact a threat of dismissal. This is particularly so where we are satisfied that, as Commissioner McKenna found, there were mitigating circumstances in Mr Allison's favour. There are, however, even more compelling circumstances why in our opinion on analysis Mr Allison was dismissed by the Council. It will be remembered that Mr Allison asked the General Manager "Do you want me to resign?" That question was directed to what the employer wanted. In signifying assent the employer was in fact indicating to Mr Allison that it wanted him to resign, that is, that it desired that the contract of employment be brought to an end. The subsequent behaviour of Mr Everett in pursuing the letter of resignation from Mr Allison is consistent with the employer's desire to bring about a termination of the contract of employment with him. In reality, and in effect, the combined circumstances of the threat to call in the police, the request for Mr Allison's resignation and the subsequent insistence that the resignation be forthcoming can result in only the conclusion that the real and effective cause of the termination of Mr Allison's employment was the conduct of the employer. That is, that Mr Allison was dismissed by the Council. (p. 76) 1. Following Allison it became accepted that an employee who tendered a resignation could be found to have been constructively dismissed, even in circumstances where the employer had not threatened dismissal. In that case the 'threat' was to report to the police that Mr Allison had taken for his own use, and without permission, two cedar doors from a council demolition site. 2. The Commission has, in the past, dealt with cases of constructive dismissal of police officers under Chapter 2, Part 6 of the IR Act (see for example Barry Michael Batton v NSW Police Service [1999] NSWIRComm 327 (30 July 1999) per Schmidt J; upheld on appeal in Police Service of New South Wales v Batton [2000] NSWIRComm 79 (23 May 2000); Marcus Lewandowski v NSW Police Force [2009] NSWIRComm 28 (18 March 2009) per Kavanagh J). It does not appear that the jurisdictional objection taken in the present matter was raised in any of those cases. 3. In Police Association v NSW Police (No 3) ([2005] NSWIRComm 243 (15 July 2005)) Boland J considered the availability of relief, pursuant to the Commission's dispute settlement powers, to a police officer who was found to have been constructively dismissed. His Honour stated as follows: Jurisdiction under Industrial Relations Act 55 The more significant point here, however, is that where Divisions 1B-1D of Pt 9 of the Police Act have no work to do, it is apparent from s 405(3) of the Industrial Relations Act and s 218 of the Police Act that the Commission's jurisdiction under Pt 6 of Ch 2 of the Industrial Relations Act is unimpaired in respect of the dismissal of police officers. See also s 83(1) of the Industrial Relations Act, which provides that Pt 6 of Ch 2 applies to the dismissal of any public sector employee, which is defined to include a police officer. 56 In my opinion, this means where no order has been made under s 181D of the Police Act, removing an officer from NSW Police, or the order is a nullity, an officer is entitled to pursue relief under Pt 6 of Ch 2 of the Industrial Relations Act. The need to access the provisions of Pt 6 of Ch 2 may arise where, for instance, an officer has been constructively dismissed and no order was made under s 181D or where the removal order or the notice under s 181D(3)(a) was a nullity. The claim by the Association on behalf of Mr Walpole is a classic example; it is claimed that although no removal order was made, Mr Walpole was constructively dismissed because he was left with no option by the Commissioner of Police but to resign. Moreover, it was submitted the notice served on Mr Walpole under s 181D(3)(a) was a nullity. 1. However, the views of his Honour, as set out above, were expressed prior to, and without the benefit of, the judgements of the High Court in Ferdinands v Commissioner for Public Employment ([2006] 225 CLR 130]) and Commissioner of Police v Eaton ([2013] 252 CLR 1). 2. In Ferdinands, the High Court considered the interrelationship of the Police Act 1998 (SA) and the provisions of the Industrial and Employee Relations Act 1994 (SA) dealing with unfair dismissal. Gleeson CJ stated as follows: 9 Under the Police Act, and the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA), there is established a special statutory regime for complaints against, and discipline of, members of the police force. There is a Police Complaints Authority and a Police Disciplinary Tribunal. Findings of that Tribunal of a breach of discipline may lead to remittal to the Commissioner for the imposition of punishment. There is also a Police Review Tribunal. An appeal to the District Court may lie in respect of a decision of the Commissioner to terminate the appointment of a member for physical or mental incapacity or unsatisfactory performance, or in respect of a decision by the Commissioner to terminate the appointment of a member on probation, or in respect of a finding by the Police Disciplinary Tribunal that a member is guilty of a breach of discipline, or in respect of a decision by the Commissioner imposing punishment for a breach of discipline. There is no such appeal available in respect of a decision to terminate the appointment of a member who has been convicted of an offence. Of course, the conviction itself is subject to the ordinary avenues of appellate review, which will vary according to the nature and seriousness of the offence. 10 There is an elaborate system of merits review of decisions relating to transfer, promotion, termination on certain grounds, and discipline. However, the Police Act reserves to the Commissioner the power to decide whether the appointment of a member of the police force should be terminated following a conviction. The evident reason for that reservation lies in the disciplined nature of the police force, the Commissioner's responsibilities of control and management, and the range of information and considerations that would need to be taken into account in deciding whether, in a particular case, retention of appointment is consistent with such a conviction. In particular, issues of morale and integrity, perhaps extending beyond the circumstances of the individual officer, are likely to arise. The arrangements for control and management of the police force, and for merits review of some kinds of decision by the Commissioner, and the absence of merits review of others, have the appearance of exhaustiveness. 11 Having regard to the nature of the subject of police appointment, discipline, and termination, and to the scheme established by the Police Act to deal with that subject, the Industrial Relations Court and the Full Court of the Supreme Court of South Australia were right to conclude that it would be incompatible with that scheme to treat an exercise of the Commissioner's power under s 40(1)(a) of the Police Act as subject to the industrial regime of the IER Act. 1. Although it does not appear that the specific issue of constructive dismissal was considered in this case, it seems highly unlikely, given these comments by the Chief Justice, that his Honour would have considered that incompatibility between the two schemes would not have arisen in the case of a constructive dismissal claim by a police officer before the Industrial Relations Commission of South Australia. 2. Gummow and Hayne JJ stated as follows: Inconsistency 47 No conclusion can be reached about whether a later statutory provision contradicts an earlier without first construing both provisions. If, upon their true construction, there is an "[e]xplicit or implicit contradiction" between the two, the later Act impliedly repeals the earlier. One example that may be given of an explicit contradiction is provided by the legislation considered in Michell v Brown where the later Act gave the same definition of an offence as had been stated in the earlier Act, but specified a different punishment, and varied the procedure to be followed for its prosecution. It was not possible to comply with both Acts simultaneously. 48 In Rose v Hvric, a distinction was drawn between explicit or implicit contradiction on the one hand and "merely 'inferential contradiction', as Lord Hatherley called it in Attorney-General v Great Eastern Railway Co" on the other. Thus, it was said that to show that provisions of the later Act would ground a conclusion that the train of thought of those who drafted that later Act, if logically pursued, would have led the drafters to enact an exception to the operation of the former Act, would not suffice to demonstrate implicit contradiction. It would show only an inferential contradiction. It would not show implicit contradiction because, as Gaudron J said in Saraswati, the general presumption is that there is no contradiction between two Acts of the one legislature. 49 Reference to "implicit contradiction" may suggest that it is both permissible and useful to resort to "covering the field" tests developed in the application of s 109 of the Constitution in deciding whether a later Act impliedly repeals an earlier. It is, however, necessary to recognise that s 109 concerns the paramountcy of a law of the Commonwealth over a law of a State. The question in the present case is not whether one law enacted by one legislature prevails over a law enacted by another legislature; it is whether the presumption that two laws made by the one legislature are intended to work together is displaced. It is unnecessary to decide in this case whether, or how much, guidance is provided in cases of allegedly implied repeal by the law that has developed in the application of s 109. 50 In the present case there would be difficulties in accommodating provisions of the Police Act with the application of the wrongful dismissal provisions of the Industrial Act. What would happen if the Industrial Commission were empowered to order re-employment of a member of S.A. Police whose appointment had been terminated? Would that person have to make a fresh oath or affirmation under s 25 of the Police Act? Upon re-employment of a member of S.A. Police by order of the Industrial Commission, could the Police Commissioner take some other less severe action against that member on account of the conviction that led the Police Commissioner to terminate his or her appointment? Or would the Police Commissioner's powers under s 40(1) be spent upon the Police Commissioner's deciding that the appointment should be terminated? In deciding whether a termination of appointment of a member of the police force was harsh, unjust or unreasonable, would the Industrial Commission be bound to take account of, and be limited to considering, matters the Police Commissioner was bound to consider when exercising the power given by s 40(1) of the Police Act? Or would the Industrial Commission be guided by those considerations that are usually grouped together under the description the "industrial justice" of the matter? 51 These difficulties in reconciling the two Acts stem from two features of the legislation which, although it is convenient to deal with them separately, are linked one to the other. First, different considerations inform the exercise of power under the Police Act from those that inform the exercise of power under the wrongful dismissal provisions of the Industrial Act. Secondly, the Police Act appears intended to deal comprehensively with questions of termination of appointment of a member of S.A. Police. 52 As is pointed out earlier in these reasons, the Police Commissioner must decide whether to exercise the powers given by s 40(1) of the Police Act having regard to the purpose and objects of the Act which confers those powers. Two of those statutory purposes are that S.A. Police reassure and protect the community in relation to crime and disorder by the provision of services to uphold the law and prevent crime. That is, the power given by s 40(1) to the Police Commissioner to take action against a member of S.A. Police who has contravened the criminal law is to be exercised having regard to the Police Act's purpose of establishing and maintaining a police force (or service) whose members are not only sworn to uphold and enforce the criminal law, but do so in fact. 53 Moreover, the Police Commissioner is obliged to ensure that personnel management practices are followed in S.A. Police under which employees are treated fairly and consistently, and are not subjected to arbitrary or capricious administrative decisions. Performance of this obligation would, at least for the most part, if not entirely, avoid harsh, unjust or unreasonable termination of a member's appointment. What is fair and consistent and is not arbitrary or capricious will usually not be harsh, unjust or unreasonable. But if there are considerations encompassed by the expression "harsh, unjust or unreasonable" or the "industrial justice" of the case which would fall outside the principles which the Police Act requires the Police Commissioner to take into account in deciding whether to terminate a member's appointment, it would follow that the exercise of powers under the wrongful dismissal provisions of the Industrial Act would be informed by different considerations from those which are to be derived from the Police Act. 54 Standing alone, the considerations just mentioned would not demonstrate explicit or implicit contradiction between the two Acts. The two Acts could be accommodated by reading the requirements which the wrongful dismissal provisions of the Industrial Act would require an employer to take into account in exercising the power to terminate an employee's services, as additional considerations to be taken into account by the Police Commissioner when exercising the powers under s 40(1) of the Police Act. There are, however, two further matters that must then be taken into account in deciding whether the two Acts are contradictory. Again, they are linked. 55 First, it is important to recognise that "affirmative words appointing or limiting an order or form of things may have also a negative force and forbid the doing of the thing otherwise". Secondly, when read as a whole, the Police Act reveals an intention to deal comprehensively not only with questions of appointment and termination of appointment of members of S.A. Police, but also with what decisions of the Police Commissioner to terminate appointment of a member are to be subject to review apart from the general supervisory jurisdiction of the Supreme Court, a general supervisory jurisdiction exercised principally by the grant of relief in the nature of prohibition, mandamus and certiorari. 56 Termination of appointment is only one of 12 actions which the Police Commissioner may take against a member who has been convicted of an offence. It would indeed be strange if the Police Commissioner's action of terminating an appointment could be measured by the Industrial Commission, against the standard of "harsh, unjust or unreasonable", without also committing to the body required to make that assessment the power to decide what other form of action, short of termination of appointment, the conviction warranted. Yet that is the step which would have to be taken if the two Acts are to be read as operating together. 57 That is not the better construction of the Police Act. Rather, the Police Act should be read as a comprehensive statement of (a) the powers of the Police Commissioner to terminate the appointment of a member of S.A. Police (powers that are conditioned upon affording procedural fairness to the member concerned); (b) the matters that are to be taken into account in exercising those powers (including the need to treat employees fairly and consistently, and not arbitrarily or capriciously); (c) the kinds of termination decision that are to be subject to review apart from the general processes of judicial review; and (d) the ways in which those termination decisions that are amenable to review are to be reviewed. The affirmative words of these provisions of the Police Act are to be read as also having a negative force and forbidding the doing of the thing otherwise under the Industrial Act. It follows that the Police Act explicitly or implicitly contradicts the wrongful dismissal provisions of the Industrial Act. 1. In the present matter the later statutory provision was the Police Service Amendment Act 1997 which inserted Divisions 1C and 1D into Part 9 of the Police Act. Immediately prior to the passing of this amending legislation, the Commission was expressly prohibited from reviewing any decision by the Commissioner to remove a police officer. The amending legislation constituted a "comprehensive statement" as to the manner in which the Commission would deal with applications for review such orders. Reservation to this Commission of a power to deal with constructive dismissals of police officers under its general unfair dismissal jurisdiction would, on the approach of the High Court in Ferdinands as set out above, be inconsistent with the "comprehensive statement" of the rights of dismissed police officers to seek redress, as set out in Part 9 of the Police Act. 2. It should be noted, however, that the South Australian Police Act contained no equivalent provision to section 218 of the New South Wales Police Act. The Eaton litigation 1. In David Eaton v Commissioner of Police ([2010] NSWIRComm 1035 (30 June 2010)) Commissioner Bishop considered an application pursuant to section 84 of the IR Act by the applicant, David Eaton. Mr Eaton was a probationary constable who had been dismissed during his probationary period. 2. Section 80 of the Police Act is in the following terms: 80 Appointment and promotion of constables (1) The Commissioner may, subject to this Act and the regulations, appoint any person of good character and with satisfactory educational qualifications as a police officer of the rank of constable. (2) A person when first appointed as such a police officer is to be appointed on probation in accordance with the regulations. (3) The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason. (4) The promotion of police officers within the rank of constable is subject to the regulations. 1. Commissioner Bishop rejected the submission, put on behalf of the respondent that, having regard to the power granted to the respondent by section 80(3), the Commission, in determining a probationary constable's claim, was not permitted to, or ought not, conduct a review of the merits of the section 80(3) decision, as to do so would require the Commission to form a judgement as to reasons underlying the probationary constable's dismissal. It was submitted that such a process, leading as it may to the Commission overturning the respondent's merit decision, would render the section 80(3) power nugatory and give the words "at any time" and "without giving any reason" no real work to do . 2. Commissioner Bishop went on to consider the merits of the applicant's unfair dismissal application and, ultimately, ordered his reinstatement. 3. On appeal, a Full Bench of the Commission (Walton VP, Marks and Kavanagh JJ) came to a different view (Commissioner of Police v Eaton ([2011] NSWIRComm 51 (5 May 2011)). The Full Bench held that the Commission did not have jurisdiction under section 84 of the IR Act to hear and determine an unfair dismissal application by a probationary constable who had been dismissed pursuant to section 80(3) of the Police Act. 4. The Full Bench (at [55]) noted that, if a dismissed probationary constable was able to pursue an unfair dismissal application under Chapter 2, Part 6 of the IR Act, that probationer would have greater rights than would an officer who was removed by order of the Commissioner, given the limitations imposed by Part 9 of the Police Act. 5. The Full Bench then stated: 57. The respondent sought to rely on s 218 of the Police Act , which is in the following terms: 218 Industrial Relations Act 1996 not affected (1) The Industrial Relations Act 1996 is not affected by anything in this Act. (2) Subsection (1) does not limit section 44 or 89 or any provision of the Industrial Relations Act 1996. In his submissions, the respondent asserted that s 218 was a complete answer to the appellant's submissions. 58. The principles to be applied in considering whether there is inconsistency in provisions of the kind contained within s 218 in the context of more specific provisions of other legislation are well known. They are discussed in the High Court of Australia in Rose v Hvric [1963] HCA 13; (1963) 108 CLR 353. The test, which seemingly the Court applied in that case, was to consider whether or not the two pieces of legalisation under consideration could "work together"(at [11]). We have found the decision of the New South Wales Court of Appeal in Public Service Association of New South Wales v Industrial Commission of New South Wales (1985) 1 NSWLR 627 more helpful. However, in considering that decision, care needs to be taken to accommodate the focus of attention which was on the particular words used in the Public Service Act, namely "unless otherwise expressly provided, nothing in this Act affects the Industrial Arbitration Act ...." 59. In his judgment, Street CJ referred first to Rose v Hvric and then observed that the words "expressly provided" "merely serve to emphasise the generality of the main provision by making clear that no case is outside that provision unless that is the necessary result of the operation of another enactment according to the intention it manifests ..." (quoting from Rose v Hvric). Street CJ also referred to whether or not there was an implied contradiction in the two pieces of legislation such that "the two cannot live together." 60. Street CJ concluded that particular provisions contained within the Public Service Act, which dealt specifically and in a positive manner with the circumstances of redundancy, necessarily contained "a negative implication precluding the making of an Award inconsistent in operation, or in contradiction of the enactments ...." (at 636). 61. A superficial review of Pt 9 of the Police Act is sufficient to enable a conclusion that s 218(1) cannot mean what is prima facie expressed in the subsection. There are specific provisions which we have earlier set out that directly impact upon the application of certain provisions of the Act to the circumstances set out in Pt 9. A ready example is s 179(1) of the Police Act which particularises certain provisions of the Act, which do not have effect. In these circumstances, it cannot be said that the Act is not affected by anything in the Police Act. It is clearly affected. It is erroneous to argue that the provisions of s 179 of the Police Act have no effect because of the application of s 218 of the Act. 62. Accordingly, s 218 must have some other meaning. Its construction must be approached in the same manner adopted by the Court of Appeal in the Public Service Association case. That is, positive statements about certain matters will have the necessary effect of negativing the jurisdiction and powers created by the Act. 63. We would construe this provision as leaving intact the power of the Commission to deal with industrial matters covering police officers unless especially restricted by some provision of the Police Act . This conclusion is consistent with the judgment of the Full Commission of the Industrial Commission of South Australia in Nassar (at 395). 1. The Full Bench upheld the appeal by the Commissioner of Police, quashed the decision of Commissioner Bishop and dismissed the application by Mr Eaton for a remedy pursuant to section 84 of the IR Act. 2. Mr Eaton instituted proceedings in the Court of Appeal for judicial review and sought orders in the nature of certiorari and mandamus to require the Commission to exercise its jurisdiction in relation to his unfair dismissal application (Eaton v Industrial Relations Commission of New South Wales [2012] NSWCA 30 (6 March 2012) per Bathurst CJ, Handley AJA and Tobias AJA). 3. The Court of Appeal held as follows: That the Commission had jurisdiction to hear and determine the applicant's claim under Pt 6 of Ch 2 of the IR Act and that the relief sought by the applicant should be granted. per Tobias AJA. Bathurst CJ agreeing: (a) A survey of the legislative history of the Police Act and the IR Act reveals that the legislature, through the respondent and the Police Minister, was aware at all material times that first, probationary constables who were dismissed pursuant to s 80(3) of the Police Act were entitled to engage and had engaged Pt 6 of Ch 2 of the IR Act ; second, that Divisions 1B and 1C of Pt 9 of the Police Act were enacted in 1997 with that knowledge and, third, that those Divisions were not intended to apply to probationary, as distinct from, confirmed police officers. (b) The present case was one of implied inconsistency and not explicit inconsistency. (c) The fact that the applicant was a probationary police officer did not relevantly differentiate his dismissal under s 80(3) of the Police Act from the removal of a confirmed officer from the Police Force pursuant to s 181D(1) of that Act. (d) To permit a probationary constable to engage Pt 6 of Ch 2 of the IR Act would not relevantly place that officer in a position of advantage over a confirmed officer seeking to engage the provisions of Divisions 1B and 1C of Pt 9 of the Police Act . (e) The remedies available to the Commission under Pt 6 of Ch 2 were not irreconcilable with the position of a dismissed officer as a probationary constable. (f) There was no good reason why the power of the respondent to dismiss under s 80(3) could not be read harmoniously with the right of the dismissed officer to engage Pt 6 of Ch 2. The right of that officer to engage those provisions did not detract from or inhibit the respondent's power to dismiss the officer pursuant to s 80(3). (g) As s 80(3) was the only provision (apart from s 88 which was irrelevant) of the Police Act relied on by the respondent as being incompatible with Pt 6 of the IR Act , as it pre-dated the IR Act , it could not effect an implied repeal of those provisions with regard to the dismissal of a probationary police officer. (h) The respondent's position was not assisted by Divisions 1B and 1C of Pt 9 of the Police Act which post-dated Pt 6 of Ch 2 of the IR Act as the parties accepted that Pt 9 did not apply to probationary police officers. (i) The existence of Pt 9 did not lead to the conclusion that on its true construction s 80(3) excluded a dismissed probationary police officer from engaging the unfair dismissal provisions of Pt 6 of Ch 2 of the IR Act . (j) Irrespective of the validity of the implied inconsistency argument, Pt 6 of Ch 2 of the IR Act (in its application to probationary police officers) was saved by s 218(1) of the Police Act. per Handley AJA; Bathurst CJ agreeing: (a) There are a number of provisions of the Police Act which evince an intention not to exclude probationary constables from the unfair dismissal provision of the IR Act . (b) There were also provisions of the IR Act which assume that a decision of the Commission under its unfair dismissal provisions might be inconsistent with the Police Act . (c) Both with respect to the Police Act and the IR Act Parliament had given close attention on a number of occasions to the relationship between the two statutes without excluding probationary constables from the unfair dismissal regime in the IR Act. (d) By virtue of s 83(2)(b) of the IR Act , the unfair dismissal provisions of that Act apply to probationary constables unless specifically excluded by regulation and there was no relevant exclusion in the present case. (e) Section 80(3) of the Police Act is not intrinsically inconsistent with the unfair dismissal regime of the IR Act and even if there was such an inconsistency, the IR Act , being the later Act, should by virtue of s 218 of the Police Act and s 405(3) of the IR Act , prevail. (f) Accordingly, the unfair dismissal regime in the IR Act should be characterised as adding an additional layer of legislation to the Police Act so that each may operate within its respective field: Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 at 553-4 per Lord Wilberforce, applied. (g) The Commission therefore has jurisdiction to hear and determine the applicant's claim under the unfair dismissal regime of the IR Act. 1. Specifically, in relation to the question of whether Chapter 2, Part 6 of the IR Act confers greater rights on an applicant than does Part 9 of the Police Act, Tobias AJA observed as follows: 74. Section 181G is headed " Application of Industrial Relations Act 1996 to reviews ". Section 181G(1) then provides that the provisions of the IR Act are to apply to an application for review under Division 1C in the same way as they apply to an application under Pt 6 of Ch 2 of IR Act subject to the provisions of Division 1C and to a number of modifications which are then set out. 75. Those modifications were relied upon by the Full Bench (at [55] of its reasons (see [113] below)) and the respondent on the present application to support a finding that if Pt 6 of Ch 2 of the IR Act applies to a probationary constable, that officer will be in a more beneficial position in the Commission than a confirmed officer whose right of review by the Commission is subject to those modifications. It is therefore necessary to set them out in full: His Honour then set out section 181G of the Police Act in full. 76. I pause to make the following observation. Apart from s 181G(1)(d) and (f), the other modifications effected by s 181G(1) are in my view inconsequential. Although relied on by the respondent, I would make the same comment with respect to s 181G(1)(d) notwithstanding that its effect is to deny a confirmed police officer a right of review under Pt 6 of Ch 2 of the IR Act where he or she is subject to a threat of dismissal or, more accurately given the terms of s 181D(1), removal from the NSW Police Force. However, that is counterbalanced by the provisions of s 181D(8) which provide that removal of a police officer under s 181D(1) has the same effect as if that officer had resigned (or if under the age of 55, retired) from the Police Force. 77. That leaves the provisions of s 181G(1)(f). It refers to s 163 of the IR Act which relevantly provides as follows: His Honour then set out section 163 of the IR Act in full. 78. However, the modification effected by s 181G(1)(f) is ameliorated by s 181G(2). It is true that the benchmarks to be achieved before leave must be granted are at least theoretically higher than under s 163 of the IR Act which empowers the Commission to receive new evidence at its discretion. But that discretion is not entirely unfettered and must, like all such discretions, be exercised judicially. Thus one would imagine that the Commission would not allow new evidence if it did not have any real probative value with respect to the issues under consideration. 79. It follows in my opinion that the modifications to Pt 6 of Ch 2 of the IR Act effected by s 181G of the Police Act are not so significant as to justify the weight given to them by the Full Bench in support of its finding that the legislature could not have intended to give probationary police officers greater rights over confirmed officers when seeking a review of their dismissal or removal, as the case may be, from the Police Force on the ground that such dismissal or removal was harsh, unreasonable or unjust. I shall refer further to this issue below. And later: 113. The second reason advanced by the Full Bench in rejecting the submission that a probationary police officer had no (this appears to be a misprint) right of review under s 84, was stated in the following terms: 55. Secondly, the counterpoint to the respondent's submissions is that the construction proposed by the respondent, namely, that the probationer would have rights under s 84 of the Act would result, as the appellant submitted, in the probationary constable effectively having greater rights than the constable in the case of a dismissal or removal (given the limitations imposed by Pt 9 of the Police Act ). I have commented on this assertion at [74] - [79] above. Section 218 of the Police Act 114. Both before the Full Bench and in this Court the applicant relied on the provisions of s 218(1) of the Police Act the terms of which I have set out at [64] above. At [61] of its reasons the Full Bench observed that a superficial review of Pt 9 of the Police Act was sufficient to enable the conclusion that s 218(1) could not be read literally as there were specific provisions of the Police Act which had a direct impact upon the application of various provisions of the IR Act to the circumstances set out in Pt 9. A ready example was s 179(1) of the Police Act which particularised certain provisions of the IR Act which did not have effect. Accordingly, there are provisions of the IR Act which are affected by the Police Act contrary to the literal words of s 218(1). 115. The Full Bench's conclusion on the effect of s 218 was as follows: 63. We would construe this provision as leaving intact the power of the commission to deal with industrial matters covering police officers unless especially restricted by some provision of the Police Act . This conclusion is consistent with the judgment of the Full Commission of the Industrial Commission of South Australia in Nassar (at 395). 116. It is sufficient to observe at this point that there are difficulties with this conclusion. It does not necessarily follow that because the general words of s 218(1) must give way to those specific provisions of the Police Act which expressly modify or exclude provisions of the IR Act such as s 44(2A) and Pt 9, that the provisions of Pt 6 of Ch 2 of the IR Act do not apply to those police officers who are dismissed from the NSW Police Force otherwise than pursuant to the scheme in Pt 9. 1. It is apparent that the Court of Appeal came to a different conclusion to that of the Full Bench on: 1. the significance of the modifications made by section 181G of the Police Act to the provisions of Chapter 2, Part 6 of the IR Act as those provisions are to be applied to applications made under section 181E of the Police Act, and 2. whether a dismissed probationary constable would, effectively, have greater rights than a confirmed constable, in the case of dismissal or removal, if the former had access to Chapter 2 , Part 6 of the IR Act in circumstances where the rights of the latter are those prescribed by Part 9 of the Police Act. 1. It also appears that the Court of Appeal, based on the reasoning of Tobias AJA as set out above, would have determined that a police officer, who claimed to have been constructively dismissed, could apply to the Commission for relief in relation to unfair dismissal under Chapter 2, Part 6 of the IR Act because that officer had not been removed pursuant to Part 9 of the Police Act. 2. The Commissioner of Police appealed from the decision of the Court of Appeal to the High Court 3. The High Court by majority (Heydon, Crennan, Kiefel and Bell JJ, Gageler J dissenting) upheld the Commissioner's appeal and reversed the decision of the Court of Appeal (Commissioner of Police v Eaton [2013] 252 CLR 1). The High Court held that a decision to dismiss a probationary officer under section 80(3) of the Police Act was not subject to a merits review under Chapter 2, Part 6 of the IR Act. The general provisions of the IR Act did not apply in the face of the special, and inconsistent, terms of the Police Act. 4. On the issue of the differences between the processes to be adopted by the Commission pursuant to Chapter 2, Part 6 of the IR Act as opposed to those prescribed by Part 9 of the Police Act, Heydon J stated as follows: 22. Fourthly, the Commissioner's powers under s 80(3) of the Police Act in relation to probationary constables stand in contrast with the Commissioner's powers under s 181D of the Police Act in relation to police officers. Section 181E of the Police Act provides that a non-probationary police officer who is removed from the NSW Police Force by an order under s 181D of the Police Act may apply to the Commission for a "review" of the order on the ground that the removal is harsh, unreasonable or unjust. That is a process which is distinct from the process of having a "claim" dealt with under s 84(1) of the IR Act. 23. In some respects, the process under s 181E for a removed non-probationary police officer is superior to the process under s 84(1) for a dismissed employee. For example, s 181E(3) imposes a duty on the Commissioner to make available to the applicant all the documents and other material on which the Commissioner relied in deciding under s 181D(1) that the Commissioner did not have confidence in the applicant's suitability to continue as a police officer. The Commissioner is subject to no equivalent duty in relation to s 84(1) of the IR Act. 24. In other respects the processes, whether superior or inferior from the point of view of the removed non-probationary police officer or the dismissed employee, are different. Thus s 181F(1) requires the Commission to proceed on a "review" in the following way. First, it must consider the Commissioner's reasons for the decision to remove the non-probationary police officer from the NSW Police Force. Secondly, it must consider the case presented by the applicant for the view that the removal was harsh, unreasonable or unjust. Thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. This stands in contrast with the procedure in relation to s 84(1) applications. Section 88 of the IR Act provides that the Commission "may, if appropriate", take into account six factors, the last of which is "such other matters as the Commission considers relevant." Liberty not to take account of a relevant matter gives the Commission fluidity. Its role, as the Commissioner submitted, is "very free flowing". 25. If a probationary constable dismissed under s 80(3) of the Police Act could apply to the Commission under s 84(1) of the IR Act, that probationary constable would enjoy a right of review superior to that of a confirmed constable. Indeed, that probationary constable would enjoy a right of review superior to that of any police officer of higher rank. That would, in turn, produce remarkable anomalies. 26. One anomaly is that if dismissed probationary constables could make applications under s 84(1) they would be in a better position than non-probationary officers. The rights of review s 181E gives to the latter in relation to s 181D removals would be more qualified than those s 84(1) gives to the former in relation to s 80(3) dismissals. In proceedings under s 84(1), where the dismissal has taken place because of alleged criminal activity, the employer bears the burden of proving that the crime was committed. But in proceedings under s 181E for review on the ground that removal was harsh, unreasonable or unjust, the applicant bears the burden of proving that the crime was not committed. That is because the applicant has, under s 181F(2), the burden of establishing that the applicant's removal from the NSW Police Force was harsh, unreasonable or unjust. The consequences of s 181F(2) are not narrow or trivial. They are significant in view of the fact that s 201 of the Police Act renders it a criminal offence for a police officer to neglect or refuse to obey any lawful order or carry out any lawful duty as a police officer. The scope for criminal offences by police officers, and for removal because of them, is thus wide. 27. Another anomaly stems from the fact that s 181F(3)(b) of the Police Act operates adversely to the applicant under s 181E reviews. Section 181F(3)(b) provides: Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: ... (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D(1). This is a reference to the "public interest" in a different sense from the "public interest" referred to in s 146(2) of the IR Act. Section 146(2) requires the Commission to: take into account the public interest in the exercise of its functions and, for that purpose, [the Commission] must have regard to: (a) the objects of this Act, and (b) the state of the economy of New South Wales and the likely effect of its decisions on that economy. The objects of the IR Act are stated in s 3. They are broad, but they relate essentially to industrial relations. The matters referred to in s 181F(3)(b) of the Police Act stand outside s 146(2) of the IR Act. The Commission's duty to have regard to the public interest as defined in s 181F(3)(b) is adverse to the interests of applicants seeking reviews under s 181E of orders made under s 181D. An applicant for a remedy under s 84(1) of the IR Act does not face that obstacle. 28. Another relevant provision is s 181G of the Police Act. Sub-section (1) commences with the words: The provisions of the [IR Act] apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications. Section 181G(1) is significant in two respects. One is that pars (a)-(f) of s 181G(1) apply six provisions of the IR Act in modified form to applications for review by non-probationary police officers. The other is that some of these modifications are adverse to the applicant seeking review under s 181E. For example, s 181G(1)(b) gives the applicant only 14 days within which to apply for review under s 181E, compared to the 21 days within which a claimant under s 84(1) of the IR Act can apply to have a claim dealt with. 29. As the Full Bench said, on the first respondent's construction of the IR Act, probationary constables "effectively [have] greater rights" than non-probationary officers in the above respects. 30. The first respondent submitted that the practical consequences of the differences between the beneficial way that probationary constables would be treated on his case when compared to non-probationary police officers are not large. In a sense that may be true. But the differences do reveal a different statutory scheme and structure applying to s 84(1) applicants. That statutory scheme and structure creates a regime which in some respects is less beneficial to s 181E applicants than the Ch 2 Pt 6 scheme is to s 84(1) applicants. In view of the generally fragile position of probationary constables and the more secure position of other police officers, that is a significant anomaly. Probationary constables have relatively slight expectations, for they may not survive the probationary period of testing. Non-probationary police officers have relatively greater expectations, for the simple reason that they are not on probation. On the first respondent's case, those with slight expectations are given better means of protecting them than the means given to those with firmer expectations. The first respondent's construction of s 84(1) of the IR Act, which leads to this outcome, is extremely suspect for that reason. Instead of a coherent and harmonious scheme, it produces a self-contradictory scheme. A statutory scheme by which it is easier for the Commissioner to part with those endeavouring to show themselves fit for non-probationary office than it is for the Commissioner to part with those who once showed themselves fit but may have now become unfit is intelligible. The reverse scheme is not. 31. The first respondent submitted that no provision in the Police Act expressly excluded merits review under Ch 2 Pt 6 of the IR Act by the Commission of a decision to dismiss a probationary police officer. The necessary implications of the two Acts read together, however, have that effect. 1. Clearly, his Honour disagreed with the Court of Appeal, and agreed with the Full Bench of the Commission, as to the significance of the different statutory schemes applicable to section 181E applications for review of a removal order as opposed to section 84 unfair dismissal applications. A construction of the two statutory schemes which would have resulted in dismissed probationary officers having superior rights than those of confirmed officers who have been removed, would have created a significant anomaly. 2. Crennan, Kiefel and Bell JJ considered the contrast between Part 9 of the Police Act and Chapter 2, Part 6 of the IR Act in the following terms: The structure and operation of the Police Act 51. The NSW Police Force established by the Police Act is comprised principally of the Commissioner, the Senior Executive Service and other police officers. The Senior Executive Service is comprised of executive officers. Aside from those officers and the Commissioner, all other police officers are referred to as non-executive officers. The Commissioner has responsibility for the management and control of the NSW Police Force, subject to the direction of the relevant Minister. 52. Non-executive police officers include probationary constables. As the term suggests, such constables are on probation until they are confirmed as officers of the NSW Police Force. In O'Rourke v Miller, Gibbs CJ said that "probation is a time of testing or trial and a probationer whose conduct, character or qualifications fail to meet the test need not be confirmed in the office to which he was provisionally appointed." 53. Clauses 13 and 14 of the Police Regulation 2008 deal with the process of confirmation of appointment as a constable. In addition to completion of initial basic training and a period of probation, cl 13 requires a satisfactory fitness report concerning the probationer before an appointment can be confirmed. Amongst the matters which the fitness report is to address pursuant to cl 14 are the probationary constable's integrity and conduct. Integrity is a value of the NSW Police Force; so much is stated in the Police Act. It is against this background that ss 80(1) and 80(3) respectively provide that, subject to the Act and its attendant regulations, the Commissioner may appoint a person as a police constable and may dismiss a probationary police constable at any time and without giving any reason. 54. Jarratt v Commissioner of Police (NSW) holds that the power of dismissal conferred by s 51(1) of the Police Act, which is in terms similar to s 80(3), is conditioned upon procedural fairness being afforded. However, procedural fairness does not in every circumstance require the giving of reasons. The terms of s 80(3) – that the Commissioner is not obliged to give any reasons – also have the effect that the validity of a dismissal does not depend upon the existence of any particular cause for dismissal. 55. Section 51(1) applies to an executive officer, who may be removed from office "at any time for any or no reason and without notice", by the Governor on the recommendation of the Commissioner, in the case of the removal of a Deputy Commissioner or Assistant Commissioner, and in any other case, by the Commissioner alone. Executive officers are not subject to the application of Pt 6 of the IR Act. By s 44(2)of the Police Act, their employment is not an industrial matter for the purposes of the IR Act and by s 44(2A), Pt 6 of the IR Act does not apply. The IR Act itself confirms that Pt 6 does not apply to an executive officer of the NSW Police Force. 56. Part 9 of the Police Act is entitled "Management of conduct within NSW Police Force". It provides the Commissioner with powers to make orders respecting police officers, including for their removal, and it permits review of those orders by reference to a process which is adapted from and different in some respects from that which is provided for under Pt 6 of the IR Act. It is evident from the terms of Pt 9 of the Police Act that it applies to confirmed police officers and not probationary constables. Thus the only statutory mechanism of review which might apply to probationary constables subject to an order of dismissal under s 80(3) is that provided by Pt 6 of the IR Act. 57 Section 181D(1) in Div 1B of Pt 9 of the Police Act provides that the Commissioner may remove a police officer if the Commissioner does not have confidence in the officer's suitability to continue as a police officer, having regard to the officer's competence, integrity, performance or conduct. By contrast with s 80(3), an order made under s 181D(1), with respect to a confirmed police officer, must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force. Clearly enough, the provision of reasons is in aid of the review that is permitted. By s 181E(1), a police officer who is removed from the NSW Police Force under s 181D may apply to the IR Commission for a review of the order on the ground that the removal is harsh, unreasonable or unjust. 58. Division 1 of Pt 9 also provides that the Commissioner may take action with respect to a police officer's misconduct or unsatisfactory performance by ordering, inter alia, a reduction in the police officer's rank, grade or seniority; an action other than dismissal. Certain actions ordered by the Commissioner are subject to review under s 174(1), which provides that a police officer may apply to the IR Commission for a review of the order, on the ground that it is beyond power or is harsh, unreasonable or unjust. 59. Proceedings on applications for review under s 181E(1) are subject to detailed provisions in Div 1C of Pt 9 of the Police Act, which are expressed so as to omit or modify, directly or indirectly, provisions of the IR Act which would otherwise govern the process by which a claim of unfair dismissal is determined. Similar changes are effected to the process which is to attend applications under s 174(1). The provisions of Div 1C respecting the review process are self-contained and reference to the IR Act is not necessary. The Police Act makes it clear that the IR Act is not to apply to these applications. Section 181D(7) provides that, except as provided by Div 1C, no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under s 181D and no appeal lies to any tribunal in connection with any such decision or order. "[T]ribunal" is defined to include the IR Commission. 60. It will be necessary at a later point in these reasons to identify some of the more substantial changes effected by the Police Act to the review process that is to be undertaken by the IR Commission with respect to claims of unfair dismissal brought by police officers, and to compare that process with the processes under the IR Act. At this point it is convenient to turn to the provisions of the IR Act respecting the application of Pt 6 and the matters relevant to determinations of claims of unfair dismissal. Part 6 of the IR Act 61. Section 83(1)(a) in Pt 6 of the IR Act, by its terms and the definition of a public sector employee, is apt to apply to police officers. Section 83(3) restricts the application of Pt 6 to non-executive police officers, which term includes probationary constables. 62. Section 83(2)(b) of the IR Act provides that regulations made under the Act can exempt employees who are serving a period of probation or a qualifying period. However, the relevant regulation exempts only a class of employees who are serving a probationary or qualifying period, the duration of which is determined in advance. Probationary constables under the Police Act do not come within the regulation. Clause 12(1) of the Police Regulation 2008 provides that the Commissioner may determine the period of probation. In Ferraris v Commissioner of Police, the Full Bench of the IR Commission held that the effect of a similar clause was that the Commissioner could increase the period of probation at any time. It follows that the requirement of the regulation cannot be met. 63. On an application under s 84(1), the IR Commission may make an order for reinstatement, re-employment, remuneration or compensation. It may do so if it is satisfied that the dismissal was harsh, unreasonable or unjust. In so determining, the IR Commission may have regard to the conduct of the employee and whether the employer acted reasonably in all the circumstances, as the Full Bench in this case observed. A general provision for an enquiry into the reasonableness of the conduct of an employer might not be thought suitable to a decision of the Commissioner to dismiss a police officer on the basis of misconduct. Further, as the Full Bench observed in this case, the relief which may be provided by the IR Commission is at odds with the prima facie right of the Commissioner under s 80(3) to dismiss. 64. There are other matters which the IR Commission may take into account under s 88 of the IR Act in connection with a claim for unfair dismissal. They include, most relevantly, whether a reason for the dismissal was given and, if so, its nature and its substance. The fact that reasons were given, or not, may be relevant to an assessment of the reasonableness of the employer. It will be recalled that s 80(3) of the Police Act does not oblige the Commissioner to give reasons. The IR Commission may also take into account whether a warning of unsatisfactory performance was given and whether or not the applicant requested reinstatement. A warning may not be practicable where issues of the integrity of a police officer are involved. By its nature, s 80(3) would not permit a request for reinstatement. 65. Of course, these are matters which may or may not be taken into account as relevant by the IR Commission to a case before it. But they serve to highlight the fact that the unfair dismissal regime of the IR Act was not framed with something like the Police Force in mind. It is a general statute. And they raise the question of how, and by reference to what matters, the IR Commission would approach the task of reviewing a dismissal by the Commissioner under s 80(3). Unfair dismissal claims – the Police Act 66. Consideration was given in Pt 9 of the Police Act to the means by which claims of unfair dismissal made by confirmed police officers are to be determined by the IR Commission. It was evidently not considered appropriate to apply the processes provided in the IR Act which apply to claims of unfair dismissal under that Act. In what follows, attention is directed to the provisions of Div 1C of Pt 9 of the Police Act, which concern applications under s 181E(1) respecting orders for removal made by the Commissioner. It is not necessary to survey the processes in Div 1A of Pt 9, concerning applications under s 174(1). 67. The Court of Appeal does not appear to have given any weight to the changes to the unfair dismissal regime brought about by the operation of Div 1C. The Full Bench, however, detailed some of the provisions of Div 1C, commented upon the limitation of IR Commission procedures they effected, and concluded that if a probationary constable were able to pursue a claim under Pt 6 of the IR Act, he or she would have greater procedural rights than a confirmed officer would have. In these observations the Full Bench was plainly correct. 68. It may first be observed that, under the IR Act, the IR Commission has power to order an employer not to dismiss an employee where a threat to do so has been made. The Police Act provides that an application under s 181E does not effect a stay of the operation of an order for removal of a police officer. There are also differences regarding the bringing of applications. The Police Act excludes the ability of the IR Commission to accept an application made out of time. The Police Act requires a hearing to be commenced within four weeks of an application being made under s 181E. No such strictures are placed on the IR Commission under the IR Act. 69. A claimant under s 181E of the Police Act bears the onus of proving that a dismissal was harsh, unreasonable or unjust. There is no equivalent provision in the IR Act, which in general terms empowers the IR Commission to determine its own procedures. In the Court of Appeal, Tobias AJA observed that in practice the IR Commission usually places the onus of proof on the applicant for relief, although the Full Bench has held that the employer must establish misconduct, where this is alleged in a case of dismissal. Dismissals under s 80(3) of the Police Act may well involve questions of integrity and misconduct. 70. There are two provisions in Div 1C of Pt 9 of the Police Act which are significant for the focus which they bring to bear upon the IR Commission's decision, a focus which is not possible under the IR Act regime. The first provision requires the IR Commission to consider the material relating to an unfair dismissal claim in a particular order, commencing with the Commissioner's reasons. The second provision requires the IR Commission to consider the "public interest". The IR Act has as its objects matters of public interest, such as the promotion of efficiency and productivity in the New South Wales economy. Section 146(2) requires the IR Commission to take into account the public interest in the exercise of its functions and, for that purpose, to have regard to the objects of the IR Act, and the state of the economy of New South Wales and the likely effect of its decisions on that economy. The matters of public interest to which the Police Act directs attention are different. The Police Act requires, for the purposes of Div 1C of Pt 9, that the public interest be taken to include maintaining the integrity of the NSW Police Force and the fact that the Commissioner made an order for removal. 71. Matters pertaining to evidence are touched upon in the Police Act. New evidence cannot be admitted before the IR Commission in review proceedings under Div 1C, except upon notice and by leave. Under the IR Act, the IR Commission may compel the attendance of witnesses. But under Div 1C of Pt 9 of the Police Act, neither the Commissioner, nor any member of the Commissioner's Advisory Panel, is a compellable witness without leave of the IR Commission, which can be granted only if extraordinary grounds exist. And later: 76. The regime provided for in Pt 9 of the Police Act for the claims of confirmed police officers evidences a concern that the processes of Pt 6 of the IR Act are not in all respects appropriate to be applied to decisions of the Commissioner to dismiss or make other like orders. Part 9 maintains a focus on the Commissioner's decision, a focus which is not provided by the general provisions of the IR Act. Part 9 elevates the Commissioner's decision to one of public interest, in the context of the maintenance of the integrity and discipline of the NSW Police Force. The placing of the burden of proof upon the police officer dismissed is consistent with the weight to be given to the Commissioner's decision, as is the provision which prevents a review of that decision by reference to additional material. 77. These are not insignificant matters. They raise important questions concerning the interaction between Pt 6 of the IR Act and the Police Act and as to the internal consistency of the Police Act. If Pt 6 applied to probationary constables, confirmed police officers' claims of unfair dismissal would be dealt with under the particular provisions of Pt 9 of the Police Act, while probationary constables' claims would be dealt with under the general provisions of the IR Act, which were not considered by the legislature in enacting the Police Act to be suited to the same topic. An anomalous position would result whereby probationary constables would enjoy greater procedural rights than confirmed police officers, as the Full Bench correctly observed. 1. With respect to the operation of section 218 of the Police Act, their Honours stated: 82. Handley AJA also considered that s 218 of the Police Act has the effect that, in the absence of an appropriate exemption by regulation, the unfair dismissal regime of the IR Act applies to probationary constables. Section 218 of the Police Act is troublesome. It was regarded by the Court of Appeal as possibly determinative of the question whether s 80(3) of the Police Act affects the application of the IR Act's unfair dismissal regime, at least if read literally. There is a difficulty with doing so, as will be explained. 83. Section 218 of the Police Act provides: (1) The Industrial Relations Act 1996 is not affected by anything in this Act. (2) Subsection (1) does not limit section 44 or 89 or any provision of the Industrial Relations Act 1996. The predecessor to s 218 was s 117 of the Police Act, as enacted. At that time the statute in force dealing with industrial matters in New South Wales was the Industrial Arbitration Act 1940 (NSW). The reference in s 117(1) to the Industrial Arbitration Act 1940 not being "affected by anything in this Act" may have been explicable on the basis that it made plain that the Police Act did not, in any relevant respect, repeal the 1940 Act. The words "is not affected by" were apt to preserve the 1940 Act. 84. Section 117 was subsequently amended in 1993 to refer to the Industrial Relations Act 1991 (NSW), when it was renumbered s 218. It was again amended in 1997 to refer to the IR Act, at around the same time amendments were made to insert Div 1B and Div 1C of Pt 9 into the Police Act. It appears to have been updated at these points in time by reference to the industrial relations statutes then in force, but apparently without consideration having been given to its new context and its continuing purpose. 85. This lack of consideration is evident from the terminology of the provision, which has remained unchanged. As enacted, s 117(2) referred to ss 44 and 89 of the Police Act. As enacted, s 44(2) relevantly provided that the employment of an executive officer was not an industrial matter for the purposes of the Industrial Arbitration Act 1940. Section 89(1) provided that the appointment of or failure to appoint a person to the position of administrative officer was not an industrial matter for the purposes of the 1940 Act. Thus, by s 117(2), s 44 continued to operate to exclude executive officers altogether from the IR Act and s 89 continued to make some exclusion with respect to administrative officers. 86. Section 44(2) remains in the Police Act. However, s 89 was repealed in 2006 and re-enacted as s 88, which is in substantially the same terms. Resort is necessary to s 68(3) of the Interpretation Act 1987 (NSW) so that the reference to s 89 in s 218(2) can be read as a reference to s 88. 87. More significantly, sub-s (1) of s 218 is now patently erroneous. The IR Act is affected by Pt 9 of the Police Act, as has been pointed out. Part 6 of the IR Act does not automatically apply to claims by police officers for unfair dismissal. Section 181E in Pt 9 of the Police Act permits the making of such a claim, but with the modified processes which Pt 9 provides. Another example of a provision of the Police Act which affects the IR Act is s 179(1), which particularises certain provisions of the IR Act which do not have effect, as the Full Bench observed. 88. The Court of Appeal's interpretation of s 218(2) assumes that it operates so that unless expressly provided by the Police Act, the IR Act is to apply. The terms of s 218(2), and the omission of such words, do not readily lend themselves to this construction. Even if one were to proceed from that assumption, the general provision of s 218 would yield to what is implied by s 80(3) of the Police Act. 89. It was pointed out in Rose v Hvric that the word "expressly" only emphasises the generality of such a provision. It makes clear that no case is outside the provision unless that is the necessary result of the operation of another enactment according to the intention that it manifests. It follows that an implication of inconsistency with the general provision will suffice to oust its application. Such an implication arises where the other provision concerned can be seen to mean more than it actually says; it may be contrasted with an inference. 90. The provisions of Pt 9 of the Police Act provide an example of inconsistency with provisions of the IR Act relating to unfair dismissal. The level of inconsistency is such that s 218(1) does not operate in its terms. Section 80(3) is impliedly inconsistent with s 218. It conveys more than that the Commissioner may dismiss without giving reasons. It implies an unfettered power and therefore that the decision is not to be subjected to a review on the merits. That implication is supported by other aspects of the construction of the Police Act, to which reference has been made. Thus if the general jurisdiction of the IR Act is recognised by s 218, it is withdrawn by s 80(3) insofar as decisions under that provision are concerned. 91. The conclusion reached by the Full Bench is, with respect, correct. The Full Bench construed s 218 as leaving intact the power of the IR Commission to deal with industrial matters concerning police officers, unless especially restricted by a provision of the Police Act. Conclusion and orders 92. The IR Act may apply generally to the Police Act, but not where the operation of the former produces an internal inconsistency in the latter. Such an effect, which would be reached if a decision under s 80(3) of the Police Act were subject to review under Pt 6 of the IR Act, cannot be taken as intended. The conclusion reached concerning the non-application of Pt 6 of the IR Act to a decision made under s 80(3) may further be tested by reference to s 218 of the Police Act and the rule of construction mentioned at the outset of these reasons. In each case, the general provisions of the IR Act do not apply in the face of the special, and inconsistent, terms of s 80(3) of the Police Act. 93. The appeal should be allowed and the orders proposed by Heydon J made. 1. In essence, the High Court held that the provisions of Part 9 of the Police Act are inconsistent with, and prevail over, those of Chapter 2, Part 6 of the IR Act. 2. However, it must be remembered that the Eaton litigation was concerned with a dismissal under section 80(3) of the Police Act, which gave the Commissioner express power to dismiss a probationary officer at any time and without giving any reason. The question at each stage of this litigation was whether such a dismissal could be reviewed by the Commission under Chapter 2, Part 6 of the IR Act, which establishes the Commission's general unfair dismissal jurisdiction. 3. The present matter concerns the concept of constructive dismissal, for which there is no legislative prescription, and whether an alleged constructive dismissal of a confirmed police officer can be reviewed by the Commission in its general unfair dismissal jurisdiction. Can the applicant pursue an unfair dismissal claim under section 84? 1. The applicant submits that Part 9 of the Police Act is concerned inter alia with orders of the Commissioner to remove officers from the police force. In the present case, no such order has been made. The provisions of Part 9 have no application to the applicant's situation. Therefore, according to the applicant's argument, there is no barrier to him pursuing an unfair dismissal claim under Chapter 2, Part 6 of the IR Act. 2. However, if this argument is correct, the very types of potential anomalies, which the Full Bench of the Commission and the High Court identified in Eaton, would inevitably arise in relation to the rights of an officer who has been removed from the police force pursuant to an order of the Commissioner, and those of an officer who has resigned and then claimed, as is the case in the present matter, that he or she has been constructively dismissed. 3. One of the differences between Part 9 of the Police Act and Chapter 2, Part 6 of the IR Act, which did not attract a great deal of attention in the Eaton litigation, comes about as a result of section 181G(1)(d) of the Police Act. This provision omits section 89(7) (Threat of dismissal) from the provisions of Chapter 2, Part 6 of the IR Act which apply, by virtue of section 181G of the Police Act, to proceedings under Part 9, Division 1C of that Act. The omission of section 89(7) is understandable, given that an officer cannot apply to the Commission under Division 1C until that officer has been removed from the police force by an order under section 181D (see s.181E(1)). 4. In the normal course of a section 181D process, the Commissioner must give an officer a notice under section 181D(3)(a) setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer. Typically, such a notice will contain words to the effect, "You are hereby notified that I am considering making an order for your removal from the New South Wales Police Force under section 181D of the Police Act 1990". It seems sufficiently clear that such a communication could be construed as a threatened dismissal. 5. An analogous situation was dealt with by Boland J in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales on behalf of Pearcey Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW ([2012] NSWIRComm 33 (24 April 2012)). In that matter Senior Correctional Officer Richard Woelfl had been the subject of a disciplinary investigation which had found misconduct allegations against him proven. Mr Woelfl was informed of this in writing, along with advice to the effect that the maximum penalty being considered for him was dismissal. There was no issue in that matter that this communication constituted a threatened dismissal. Boland J made an order pursuant to section 89(7) of the IR Act that the employer not dismiss Mr Woelfl pending the hearing and determination of the proceedings. There then followed a full hearing as to the merits of the threatened dismissal, as well as associated appeals. The restraining order remained in place until that process was completed. 6. The effect of section 181G(1)(d) of the Police Act appears to be that a police officer, who is served with a section 181D(3)(a) Notice, is prevented from applying to the Commission for an order under section 89(7) of the IR Act restraining the Commissioner from dismissing that officer. This puts a police officer who has been threatened with dismissal in a significantly inferior position to that of other employees, such as Mr Woelfl, whose unfair dismissal rights are found in Chapter 2, Part 6 of the IR Act. However, if this were not the case for police officers, the availability to them of restraining orders, followed by a full merits hearing under Chapter 2, Part 6 of the IR Act, would have the potential to undermine the whole review process established by Part 9, Division 1C of the Police Act. 7. A question that arises for consideration in the present matter is whether the availability of a merits hearing under Chapter 2, Part 6 of the IR Act to a police officer who resigns in the face of a threatened dismissal (or other adverse conduct by management), and then claims to have been constructively dismissed, would also have the potential to undermine the review processes established by Part 9, Division 1C of the Police Act. 8. Given the relatively low threshold that needs to be satisfied in order to establish that an employee has been constructively dismissed, as seen in cases such as Allison, it is not difficult to conceive of a situation where the service by the Commissioner of section 181D(3)(a) Notice on an officer could be regarded by that officer as a threatened dismissal. If the officer resigned in in the face of that threat, and then claimed that he or she had been constructively dismissed, the availability of access to the unfair dismissal provisions of the IR Act would have the potential to subvert the more stringent review processes established under Part 9 of the Police Act. 9. Such an officer would, to borrow from Heydon J, 'enjoy a right of review superior to that of' an officer who had not resigned, but who had responded to the section 181D(3)(a) Notice and had then been removed by order of the Commissioner. Indeed, the officer who had tendered a resignation 'would enjoy a right of review superior to that of any police officer' who had been removed by order of the Commissioner. To again borrow from his Honour 'that would, in turn, produce remarkable anomalies'. The resigning officer 'would be in a better position than' a removed officer. 'The rights of review s 181E gives to the latter in relation to s 181D removals would be more qualified than those s 84(1) gives to the former in relation to' constructive dismissals. 10. Part 9 of the Police Act establishes the only process by which a dismissed police officer is able to seek a remedy. That process is unique to the NSW Police Force and has been specifically designed to provide officers with an avenue to seek redress in relation to their removal from the police force whilst, at the same time, putting in place measures designed to preserve the integrity of the police force. As a consequence, it is necessary, in order to preserve the efficacy of that scheme, that no remedy be available to officers who claim to have been constructively dismissed, just as, after the High Court judgement in Eaton, no remedy is available to probationary officers who have been dismissed. 11. This is not to say that managers in the police force are able to act with impunity towards other police officers in a manner which might, in other employment contexts, amount to a constructive dismissal. The disciplined nature of the police force, which stands it apart from the general workforce, was noted by the High Court in Ferdinands. Under Part 8A of the Police Act there is erected an elaborate apparatus for complaints against police officers, including senior officers, to be made to the Commissioner, to the Police Integrity Commission or to the Ombudsman. There is a process established for the investigation of such complaints and a range of actions which the Commissioner may order following such an investigation. 12. These provisions could have been utilised by the applicant in these proceedings to make a formal complaint about the officer or officers whom, he claims, subjected him to bullying, harassment and discrimination. Regulation 51 of the Police Regulation 2015 prohibits the victimisation of an officer who has made such a complaint. Victimisation includes changing the duties of the officer so that they are not appropriate to that officer's salary or position. 13. The applicant did not seek redress through these processes but, instead, tendered his resignation. It would be incongruous if, having chosen not to utilise the processes which were available to him to address his complaints of bullying, harassment and discrimination in an attempt to remedy the situation which, as he now asserts, forced him to resign, the applicant is able to claim that he was constructively dismissed and is entitled to pursue a remedy under the unfair dismissal provisions of the IR Act. Conclusion 1. Part 9, Division 1C of the Police Act deals comprehensively with the process by which a police officer, who claims to have been unfairly dismissed, is able to seek redress. This process does not comprehend the notion of constructive dismissal. It would create unacceptable anomalies to allow an officer who resigns, and then claims to have been constructively dismissed, to have superior rights in relation to an unfair dismissal claim, than an officer who has been removed by order of the Commissioner. 2. Adopting the approach of the High Court in Ferdinands and in Eaton, I find that the Commission does not have jurisdiction to hear and determine the applicant's application for relief in relation to unfair dismissal. 3. The application by the applicant pursuant to section 84 of the IR Act for relief in relation to unfair dismissal is dismissed for want of jurisdiction. 4. I so order. ********** 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: 29 July 2016