APPEAL AGAINST THE DECISION OF COMMISSIONER TO TAKE REMOVAL ACTION ON 01 NOVEMBER 2022

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00140

DELIVERED : THURSday, 9 March 2023

FILE NO. : APPL 53 OF 2022

Appellant

AND

Western Australia Police Force

Respondent

CatchWords : Industrial Law (WA) – Dismissal from WA Police Force – Police Appeal Board affirmed dismissal – Whether appeal lies under s 33P – Whether dismissal is ‘removal action’ – No right of appeal to Commission – Appeal dismissed

Legislation : Police Act 1892 (WA)

Police Force Regulations 1979 (WA) 

Result : Appeal dismissed

Representation:

Appellant : Mr L Kovacs on his own behalf

Respondent : Ms A Miller of counsel

Case(s) referred to in reasons:

McGrath v Commissioner of Police [2005] WAIRC 01989; (2005) 85 WAIG 2006

The Honourable Minister of Police Commissioner of Police v Western Australian Police Union of Workers [2000] WAIRC 01174; (2001) 81 WAIG 356

Reasons for Decision

1         The appellant, Mr Levente Kovacs, served as First Class Constable in the Western Australian Police Force. He commenced with the Western Australian Police Force in about 2014. He was dismissed in September 2022. The reason for the dismissal was disobeying the Commissioner of Police’s direction requiring him to have at least one COVID‑19 vaccination by 1 December 2021 unless having a medical exemption.

2         Mr Kovacs challenged the decision to dismiss him by appealing the dismissal to the Police Appeal Board. The Police Appeal Board heard his appeal on 1 November 2022, dismissed the appeal, and confirmed the dismissal.

3         Mr Kovacs then sought to further appeal the dismissal decision by way of an appeal to the Western Australian Industrial Relations Commission under s 33P of the Police Act 1892 (WA). Mr Kovacs frankly told the Commission that he was not able to point precisely to why the Commission could deal with his appeal. But he felt that he had not had a proper opportunity to voice his concerns, including his religious objections to vaccination. He felt he needed to voice these concerns, to fight for his job and his livelihood. And the Commission was the last forum he had left.

4         What the Commission is deciding is whether Mr Kovacs has a right of appeal to the Commission or not. In particular, is the dismissal decision ‘removal action’ from which an appeal under s 33P lies?

5         Mr Kovac’s Notice of Appeal to the Commission (and his Notice of Appeal to the Police Appeal Board) each detailed the reasons why he was opposed to being vaccinated against COVID‑19, why he considered the direction to be vaccinated to be unlawful or unreasonable, and why he considered the decision to dismiss him to be unjust and unfair. In the hearing before the Commission he also added that he felt it was unfair that he and two other police officers’ appeals were heard together with the same outcome, despite differing individual circumstances.

6         The Commission is not required to deal with the merits of Mr Kovac’s arguments about the reasonableness of the direction, the fairness of the dismissal decision or the fairness of the Police Appeal Board’s decision. The Commission is only concerned with whether Mr Kovacs has a right of appeal to the Commission or not. For the reasons that follow, we conclude he does not, and so we dismiss his appeal.

The decision to dismiss Mr Kovacs

7         On 25 March 2022, Mr Kovacs was advised in writing that a Review Officer would be appointed to inquire into his unwillingness to become vaccinated against COVID‑19 in accordance with the Police Force Regulations 1979 (WA). He was advised that following the investigation, the Commissioner of Police may, amongst other things, issue a Notice of Loss of Confidence under s33L of the Police Act.

8         However, no Notice of Loss of Confidence was issued.

9         The Commission was provided with the document trail that ultimately led to the dismissal decision. It is clear from the face of the documents that on 1 September 2022, Mr Kovacs was charged with a disciplinary offence under reg 603 of the Regulations. The Disciplinary Charge Sheet refers to reg 603 (which relates to the failure to carry out a lawful order) and reg 625 (which sets out procedural matters for disciplinary charges). It records that Mr Kovacs was ‘convicted’ of that charge by Presiding Officer Deputy Commissioner Adams at Police Headquarters on 14 September 2022.

10      Under ‘Managerial Actions’ the charge sheet states:

Dismissed from the WA Police Force Section 23(4)(f) Police Act.

11      Section 23 of the Police Act relevantly says:

23. Disciplinary offences, how they are dealt with

(1) The Commissioner, or an officer appointed by the Commissioner for the purpose, may examine on oath any member of the Police Force, police auxiliary officer, police cadet or Aboriginal police liaison officer upon a charge of an offence against the discipline of the Police Force being made against any member of the Force, police auxiliary officer, cadet or liaison officer.

(2) ...

(3) ...

(4) Where the Commissioner or officer conducting an examination under this section determines as a result of that examination that any other member of the Police Force or any police auxiliary officer, police cadet or Aboriginal police liaison officer has committed an offence against the discipline of the Police Force, he shall record that determination in writing and, subject to the provisions of subsection (5), may thereupon caution such member, police auxiliary officer, cadet or liaison officer or by order in writing impose on him one or more of the following punishments —

(a) a reprimand;

(b) a fine of not more than 3% of the annual base rate of pay of the member, police auxiliary officer, cadet or liaison officer;

(c) demotion;

(d) reduction in salary to a specified rate within the limits of salary fixed in relation to the office held by him;

(e) suspension from duty;

(f) discharge or dismissal from the Force or, in the case of a police auxiliary officer or Aboriginal police liaison officer, cancellation of his appointment.

(5) An order made under subsection (4) for demotion or reduction in salary, suspension from duty, discharge or for dismissal or cancellation of appointment, shall not have effect unless or until —

(a) in the case of a member who is not an officer, or of a police auxiliary officer, cadet or liaison officer, it is imposed or confirmed by the Commissioner; or

(b) in the case of an officer, it is confirmed by the Governor.

(6) An order made under subsection (4) which is subject to confirmation by the Governor shall not be submitted to the Governor for such confirmation unless or until —

(a) the time within which an appeal to the Board against the punishment, decision or finding to which the order relates may be made under this Act has elapsed and no such appeal has been instituted; or

(b) such an appeal to the Board has been instituted and has been determined by the Board in accordance with the provisions of this Act.

(7) …

12      Deputy Commissioner Adams’ ‘Penalty’ of dismissal was confirmed by a notice signed by the Commissioner of Police on 23 September 2022. The notice is expressed to be ‘in accordance with Section 23(5)’ of the Police Act.

Mr Kovacs appeals to the Police Appeal Board

13      On or about 25 September 2022, Mr Kovacs lodged a Notice of Appeal with the Police Appeal Board. His Notice of Appeal was, on its face, an appeal ‘pursuant to section 33E of the Police Act 1892’ and was ‘in relation to disciplinary charge 89 of 2022’.

14      Section 33E of the Police Act says:

Where under the provisions of this Act a member of the Police Force, a police auxiliary officer, a police cadet or an Aboriginal police liaison officer has been convicted upon a summary investigation by the Commissioner or other officer appointed by the Commissioner, of an offence against the discipline of the Police Force, if that member, cadet, police auxiliary officer, or liaison officer is punished by the Commissioner or other officer as the case may be, by being discharged or dismissed from the Police Force, suspended from duty, removed from the office of police auxiliary officer or Aboriginal police liaison officer, reduced in rank, fined or transferred by way of punishment, he may appeal to the Board in accordance with the provisions of this Act against the punishment and against any decision or finding on which the punishment was based.

15      In his Notice of Appeal to the Police Appeal Board, Mr Kovacs noted that he was self‑represented with the support of law firm Hotchkin Hanly. He advised the Commission that he was represented by a lawyer for the Police Appeal Board hearing.

16      On 1 November 2022, the Chairperson of the Police Appeal Board certified that the appeal was heard, and dismissed. That certification was ‘in accordance with section 33(l)’ of the Police Act.

Mr Kovacs’ dismissal was not ‘removal action’

17      As the Western Australian Police Force correctly submits, the Commission, as a creature of statute, only has the jurisdiction and powers given to it by statute. Relevantly, the Police Act gives the Commission jurisdiction to determine appeals by police officers against removal action under Part IIB Division 3 of the Police Act.

18      Part IIB Division 3 of the Police Act relates to the removal of police officers following the process set out in the proceedings Division 2 of Part IIB. Those procedures are distinct from the disciplinary procedures set out under Part II of the Police Act.

19      The Police Appeal Board is constituted under Part IIA of the Police Act. The right of appeal to the Police Appeal Board under s 33E is from ‘disciplinary offences’. Under s 33H, ‘the decision of the Board is final’. This clearly means that there is no further appeal from a decision of the Police Appeal Board.

20      The Commission has previously explained that removal for the purpose of Part IIB and dismissal are distinct concepts, even if the ultimate consequence is the same for the police officer concerned: McGrath v Commissioner of Police [2005] WAIRC 01989; (2005) 85 WAIG 2006 at [21] and The Honourable Minister of Police Commissioner of Police v Western Australian Police Union of Workers [2000] WAIRC 01174; (2001) 81 WAIG 356 at [111].

21      Specifically, removal action means a recommendation by the Commissioner of Police that the Minister approve the removal of a police officer under s 8 of the Police Act. It is against that recommendation that an appeal lies: ss 33P(1) and 33L.

22      Although Mr Kovacs may, having done a good job in his service as a police officer, find his dismissal a difficult pill to swallow, no removal action under s 33L has been taken against him. Accordingly, there is no decision for Mr Kovacs to appeal to the Commission.

Orders

23      Accordingly, the appeal will be dismissed for want of jurisdiction.