Western Australian Industrial Relations Commission

Commissioner of Police not precluded from removal action

The Western Australian Industrial Appeal Court has upheld an appeal against a decision of the Western Australian Industrial Relations Commission (WAIRC) that found that the appellant, the Police Commissioner, had unfairly removed a police officer from the WA Police Service.

The police officer, while off duty, was involved with an incident with members of the public. He was charged with offenses of unlawfully causing grievous bodily harm and assault. Prior to the determination of the criminal charges, the Commissioner of Police commenced removal action against the officer under pt IIB of the Police Act 1982 for the conduct relating to the criminal charges. The Commissioner invited the officer to respond to the proposed removal action. The officer declined to respond to the proposed removal action as it would undermine his right to silence and his presumption of innocence whilst the criminal charges were being defended. The Commissioner continued with the removal action and removed the officer from the Police Force. After his removal, the officer was acquitted of both charges. He appealed to the WAIRC on the grounds that the decision of the Commissioner to take removal action was harsh, oppressive or unfair. The WAIRC declared that the Commissioner's decision to take removal action was unfair and ordered compensation to be paid for loss and injury caused by the removal.

The Commissioner appealed the decision on the grounds that the WAIRC erred in law in its construction of s 33W of the Police Act and that in allowing the officer's appeal at first instance, the WAIRC erred in law by finding that considerations of fairness overrode the operation of s 33W. The officer argued that the Court had no jurisdiction to hear the appeal. By majority, the Court found that the appeal to the Court was within s90(1) of the Industrial Relations Act 1979 as applied and modified by s 33S of the Police Act and was therefore competent.

Buss J noted that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions in the statute. He further noted that legislative intention to exclude the rules of procedural fairness may arise where compliance with the rules in respect of the exercise of a statutory power will 'necessarily frustrate or be inconsistent with the exercise of the power'.

The majority of the Court found that the Commissioner was not required to grant the officer an extension of time, suspension or adjournment in relation to the removal action process. Section 33W contains a declaration as follows:

To avoid doubt, it is declared that if a member –

(a)        has been charged with committing an offence; or

(b)        has been acquitted of an offence,

That charge, the existence of proceedings relating to that charge or the acquittal does not preclude the Commissioner of Police from taking any action under this part in relation to any matter, act or omission relating to or being an element of the offence.

Buss J determined that the word 'preclude' in the context of the statute meant 'prevent' and that therefore the Commissioner is not prevented from commencing or continuing with removal action under pt IIB in relation to a member of the Police Force in the circumstances specified in s 33W.

The purpose of the removal action process, as revealed by the statute, is to enable the Commissioner to promptly remove an officer from the Police Force if the Commissioner has lost confidence in the officer's suitability to continue as a member, having regard to the officer's integrity, honesty, competence, performance or conduct. The majority of the Court found that the WAIRC erred by reading an unexpressed condition based on fairness into the relevant section of statute.

Accordingly, the majority of the Court determined that it was not open for the WAIRC to conclude that the Commissioner's decision to take removal action in relation to the officer was 'unfair', within the expression 'harsh, oppressive or unfair' and that the Commissioner denied the officer procedural fairness by refusing to adjourn the removal action process. The majority of the Court was satisfied that the Commissioner afforded the officer a reasonable opportunity to be heard in relation to the Commissioner's loss of confidence in the officer's suitability to continue as a member of the Police Force.

Le Miere J (dissenting) found that the WAIRC did not misconstrue the statute. His Honour found that the effect of s 33W is that the circumstance of an officer having been charged with committing an offence does not prevent the Commissioner from taking removal action. However, that does not mean that it cannot be unfair for the Commissioner to take removal action in the particular circumstance of a case where the officer has been charged with a related criminal offence. His Honour stated that where different conclusions are reasonably possible it cannot be inferred that the WAIRC has misunderstood or misconstrued the statutory provision.

The Industrial Appeal Court set aside the declarations and orders made by the WAIRC and substituted an order that the officer's appeal to the WAIRC  be dismissed.

The decision can be read here.

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