Trevor Allan Cottle v Commissioner of Police [2017] NSWIRComm 1055

Industrial Relations Commission New South Wales Medium Neutral Citation: Trevor Allan Cottle v Commissioner of Police [2017] NSWIRComm 1055 Hearing dates: 9 June 2017 Date of orders: 22 August 2017 Decision date: 22 August 2017 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The application for relief in relation to unfair dismissal filed by Trevor Cottle in the Office of the Industrial Registrar on 14 December 2016 is dismissed for want of jurisdiction Catchwords: UNFAIR DISMISSAL – sworn police officer medically retired – claim for unfair dismissal remedy – motion by respondent to strike out application for want of jurisdiction – for sworn police officers ability to pursue unfair dismissal remedy under Industrial Relations Act displaced by provisions of Police Act – provisions of Police Act constitute exclusive code for dismissed police officers seeking a "merit review" – application dismissed Legislation Cited: Police Act 1990 Industrial Relations Act 1996 Cases Cited: Commissioner of Police v Eaton [2013] 252 CLR 1 McDonald v Commissioner of Police (No 2) [2016] NSWIRComm 1032 McDonald v Commissioner of Police (No 3) [2016] NSWIRComm 1049 Category: Principal judgment Parties: ........ Representation: Counsel: Mr R Lovas (Applicant) Mr M Seck (Respondent) Solicitors: Mr P Moore, Brazel Moore Lawyers (Applicant) Mr M Watts, K&L Gates (Respondent) File Number(s): 2016/00374499

DECISION 1. The applicant, Trevor Cottle, is a former NSW Police Officer. By correspondence dated 1 December 2016 the applicant was notified of the intention of the respondent, the Commissioner of Police, to proceed to medically discharge him from the police force with effect from 15 December 2016. 2. Medical retirement from the NSW Police Force is provided for in section 72A of the Police Act 1990 which is in the following terms: 72A Incapable non-executive police officer may be retired If: (a) a non-executive police officer is found on medical grounds to be unfit to discharge or incapable of discharging the duties of the officer's position, and (b) the officer's unfitness or incapacity: (i) appears likely to be of a permanent nature, and (ii) has not arisen from actual misconduct on the part of the officer, or from causes within the officer's control, the Commissioner may cause the officer to be retired. 1. Also relevant for the purpose of these proceedings is section 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 88 or any provision of the Industrial Relations Act 1996. 1. On 14 December 2016, the applicant filed an application for relief in relation to unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ("the IR Act"). In this application, listed under "Reasons for Application" the following is stated: 1. The Employer has No medical evidence to support the Medical Discharge and their current position. 2. They were informed to Transfer the employee, to another LAC to resolve the matter. The employer refused that request and has ignored the doctor's expert opinion. 1. On 3 February 2017, the respondent filed a Notice of Motion, supported by an affidavit sworn by the respondent's solicitor, Mr M Watts, which sought the following: 1. a declaration that the Commission has no jurisdiction over the Respondent in respect of the subject matter of these proceedings; 2. an order setting aside the Application for Relief in relation to Unfair Dismissal filed by Trevor Cottle on 14 December 2016; and 3. any further or other orders that the Commission sees fit. 1. The grounds and reasons in support of the respondent's motion are as follows: 1. Prior to his medical discharge from employment under section 72A of the Police Act 1990 (NSW), the Applicant (Respondent on the Motion) was a sworn NSW Police officer employed by the Respondent (Applicant on the Motion) pursuant to Part 2 and Part 6 of the Police Act 1990 (NSW). 2. Where a police officer is removed from their office by an order under section 181D of the Police Act 1990 (NSW), which is tantamount to dismissal from their employment, the officer is entitled to a review of that removal by this Commission pursuant to Part 9, Division 1C of the Police Act 1990 (NSW). 3. The Application for Relief in relation to these proceedings is brought pursuant to section 84 of the Industrial Relations Act 1996 (NSW). 4. Following the decision of the High Court in Commissioner of Police v Eaton [2013] HCA 2 and the decision of the Full Bench of this Commission in McDonald v Commissioner of Police (No.3) NSWIRComm 1049, the general unfair dismissal provisions of the Industrial Relations Act 1996 (NSW) must give way to the specific unfair dismissal provisions applying to sworn police officers in the Police Act 1990 (NSW). 5. In particular, the Respondent (Applicant on the Motion) contends that all sworn police officers are limited to seeking a remedy in respect of an alleged unfair dismissal pursuant to the specific statutory regime applying to them in the Police Act 1990 (NSW), and to the exclusion of the general provisions applying to NSW public sector employees in the Industrial Relations Act 1996 (NSW). 6. In circumstances where the Applicant (Respondent on the Motion), as a sworn NSW Police officer, is only able to pursue a review by this Commission under the specific statutory scheme in the Police Act 1990 (NSW) that applies to his employment, and where the Application before this Commission has been filed under Part 6 of Chapter 2 of the Industrial Relations Act 1996 (NSW), it is the contention of the Respondent (Applicant on the Motion) that the Application must be dismissed for want of jurisdiction. 7. In light of the foregoing grounds, the Applicant (Respondent on the Motion) has foreshadowed making an application to the Commission, asking for his originating Application to be treated as an application under section 181E of the Police Act 1990 (NSW). 8. Pursuant to subsection 181E of the Police Act 1990 (NSW), any such review proceedings are only open to be made by "[a] police officer who is removed from the NSW Police Force by an order under section 181D". 9. The Applicant (Respondent on the Notion) was not removed from his office by an order under section 181D of the Police Act 1990 (NSW). 10. Accordingly, even if the originating Application was amended and treated as an application under section 181E of the Police Act 1990 (NSW), it is the contention of the Respondent (Applicant on the Motion) that the Application must still be dismissed for want of jurisdiction. 1. Unsurprisingly, the applicant opposes the relief sought in the respondent's motion. The Notice of Motion was heard before me on 9 June 2017 when counsel for the respective parties spoke to written submissions which had been previously filed and served. This decision is the determination of the respondent's motion to, in effect, strike out the applicant's claim for relief for want of jurisdiction. 2. In short, the issue for determination is whether or not a sworn police officer, who is medically retired from the police force under section 72A of the Police Act, is able to pursue an unfair dismissal remedy under the provisions of Chapter 2, Part 6 – Unfair dismissals, of the IR Act.