2024 WAIRC 00164

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00164

CORAM
: CHIEF COMMISSIONER S J KENNER
COMMISSIONER T EMMANUEL
COMMISSIONER T KUCERA

HEARD
:
TUESDAY, 3 OCTOBER 2023, TUESDAY, 5 DECEMBER 2023, WEDNESDAY, 6 DECEMBER 2023

DELIVERED : WEDNESDAY, 17 APRIL 2024

FILE NO. : APPL 52 OF 2023

BETWEEN
:
GUY LITTLE
Appellant

AND

COMMISSIONER OF POLICE
Respondent

Catchwords : Industrial law (WA) - Removal of police officer - Loss of confidence by Commissioner of Police - Appeal against removal - Whether removal harsh, oppressive or unfair - Lack of honesty and candour in application to join the Police Force - Non disclosure of relevant medical information - Public interest - Removal not harsh, oppressive or unfair - Appeal dismisssed
Legislation : Amending Act No 58 of 2000 (WA)
Criminal Code s 317(1)
Occupational Safety and Health Act 1984 (WA) s 3A(4); s 3A(5); s 20; s 20(1); s 20(2)(d)(i)
Police Act 1892 (WA) s 8; s 33L; s 33L(1); s 33P; s 33Q(2); s 33Q(4)(b); s 33R
Police Force Regulations 1979 (WA) reg 6A07; reg 6A08
Prisons Act s 107(4)(b)
Result : Appeal dismissed
REPRESENTATION:
Counsel:
APPELLANT : MR M COX OF COUNSEL
RESPONDENT : MR N JOHN OF COUNSEL
Solicitors:
APPELLANT : MDC LEGAL
RESPONDENT : STATE SOLICITOR’S OFFICE

Case(s) referred to in reasons:
Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Byers v Minister for Corrective Services [2022] WAIRC 00186; (2022) 102 WAIG 252
Carlyon v Commissioner of Police [2004] WAIRC 11966; (2004) 85 WAIG 706
Lee v Commissioner of Police [2021] WAIRC 00631; (2021) 102 WAIG 42
Moran v Commissioner of Police [2015] WAIRC 00464; (2015) 95 WAIG 804
Polizzi v Commissioner of Police [2014] WAIRC 00302; (2014) 94 WAIG 477
The Honourable Minister of Police v Western Australian Police Union of Workers [2000] WAIRC 01174; (2001) 81 WAIG 356

Reasons for Decision

THE COMMISSION:
Background and summary of factual issues
1 This is an appeal by the appellant under s 33P of the Police Act 1892 (WA) against his removal by the respondent.
2 The appellant was appointed as a police officer in January 2014 having graduated from the Police Force Academy on 29 January 2014. The appellant was formerly a police officer in the United Kingdom between August 2008 and October 2013. In February 2013, the appellant applied to become a member of the Police Force. He undertook a recruitment process and was accepted into the Police Force in May 2013. In October 2013, the appellant undertook a transitional course at the Police Force Academy. On graduation from the Academy, the appellant was engaged in uniformed general duties positions in the Metropolitan Region for a period of probation. In July 2018, the appellant transferred to the Wanneroo Police Station in the Joondalup District. He was a patrol/enquiry officer.
3 Many years ago in January 1990, when the appellant was a seven year old child, he underwent surgery on the left side of his neck. In subsequent years, by about 16 years of age, the appellant was suffering significant pain and stiffness in his upper back and left shoulder.
4 From the age of 17, the appellant enlisted with the UK Royal Marines and underwent a training program. Prior to completing his training program, the appellant suffered an injury which resulted in him being medically discharged from the Royal Marines. Following a period as a climbing instructor, in August 2008, the appellant joined the West Midlands Police in the United Kingdom. The appellant had further surgery in the United Kingdom in June 2012. The circumstances and post-surgery issues from that time, will be dealt with further below when discussing the evidence.
5 As a part of the appellant’s recruitment into the Police Force, the appellant was required to complete a Health Assessment Report, known as a ‘P58’. This form is to be completed by both an applicant and a medical examiner. The appellant completed the Health Assessment Report and, in the section in relation to ‘personal history’, declared that he did not and had not suffered any medical condition or problem including musculoskeletal, (shoulder, bones, joints, muscles, spine) e.g., arthritis, back or ankle pain’. The appellant also answered in the negative in response to a question of whether he had any health problems that restricted his daily activities. The appellant also answered in the negative a question whether he had in the past, or was to receive any surgical intervention including for orthopaedic surgery such as knee or shoulder reconstructions. The only mention made was surgery for varicose veins. Finally, in response to a question whether the appellant had ever made a claim for compensation, he referred to a stress fracture in the femur, whilst in the military.
6 As part of his application process, the appellant undertook a medical examination by a United Kingdom general medical practitioner, Dr Piper. As a part of the Health Assessment Report, Dr Piper recorded that the appellant had no inhibition in his range of movement and function in his joints including his shoulder and spine. There was no stated anatomical abnormality and no previous injuries in the locomotor system, including a dislocation or a tear. A notation was made that in relation to the appellant’s skin, he had a scar from an operation for a compressed nerve on the left side of his neck. No abnormalities were stated.
7 On the basis of the assessment, Dr Piper concluded that the appellant was suitable for engagement as a police officer.
8 The respondent sought further clarification in relation to certain matters dealt with by Dr Piper, including the scar on the appellant’s neck resulting from a nerve operation. In response, the appellant provided to the respondent further medical opinions to the effect that the appellant was fit and active and there were no reservations in recommending the appellant to be fit for police service. Following further queries by the respondent regarding the appellant’s 2012 operation for a nerve entrapment, the appellant obtained a further medical opinion from a Mr Roberts at the Peripheral Nerve Injury Unit at the Royal National Orthopaedic Hospital in mid-May 2013. This document, described as a ‘Discharge Letter’ noted the completion of the appellant’s treatment following the 2012 surgery and expressed an opinion that no further treatment was necessary, and that the appellant should have no difficulty in performing the functions of a police officer, presently or in the future.
9 On the strength of those assessments and reports, the respondent’s offer of engagement was made to the appellant in May 2013.
10 On the Health Assessment Report form, the appellant signed a declaration to the effect that the provision of false or misleading information may lead to the respondent withdrawing its offer for appointment as a police officer or subsequent to his appointment, the termination of his engagement. Additionally, the terms of the appellant’s engagement contained a provision to the effect that he was obliged to provide to the respondent between the time of his original application for engagement and the date of his commencement, information about any disability, illness or injury he had sustained or his awareness that information provided in the course of his application for engagement may be false or misleading. It was further provided in the terms of engagement that the appellant’s failure to comply with this obligation, may lead to the withdrawal of his offer of engagement, or subsequently, his removal from the Police Force.
11 Subsequent to his engagement as a police officer, in 2014 the appellant undertook various steps in relation to a claim against the United Kingdom National Health Service arising from his neck surgery as a child. It appears that some time earlier in October 2012, the appellant signed a preliminary witness statement indicating he may be a claimant against the NHS, alleging negligence. It was asserted by the appellant at this time, that the negligent procedure caused him pain and suffering, from a severed nerve and a related neuroma. The respondent ultimately contended that the appellant failed to declare both the neck nerve injury, and scapula condition arising or the associated pain. Additionally, the respondent contended that the appellant did not declare his claim against the NHS in the United Kingdom.
12 In relation to the NHS claim, it was common ground that the appellant returned to the United Kingdom on a number of occasions, in order to confer with both medical and legal representatives in relation to his claim. The respondent ultimately contended that the appellant failed to inform him of these matters, and also, provided contradictory information to the NHS in relation to his negligence claim.
13 In early September 2017, the appellant, whilst on holiday in Queensland, injured his right shoulder climbing a tall tree. This incident required an emergency response and medical treatment. The respondent contended that the appellant also did not disclose this injury to either the respondent or the NHS, as a part of his claim. The respondent contended that the appellant disclosed for the first time, in May 2018, his back pain and strong pain relief medication that he had been taking for many years, for a preexisting injury. In early February 2018 and in late December 2018, the appellant received payments totalling $528,769.34 which the respondent contended, and the appellant did not dispute, were payments made by the NHS in settlement of his negligence claim.
14 In late July 2020, the appellant went on sick leave and remained on sick leave until the events leading to these proceedings. Commencing in late 2020, and continuing into late 2021, an investigation was undertaken by the respondent into the information the appellant provided to the respondent as a part of this application to join the Police Force, and also, the information he provided to the NHS as a part of his claim against it. A loss of confidence process under the Police Act was commenced. The notice of loss of confidence process ultimately led to the issuance to the appellant of a Notice of Intention to Remove under s 33L(1) of the Police Act on 30 November 2022. The NOITR specified that the respondent’s loss of confidence in the appellant’s suitability to continue to be a member of the Police Force was based on alleged behaviour that the appellant had:
• Acted dishonestly and without integrity when you failed to disclose on your WA Police Force Application for Employment as a Police Officer (P58 Health Assessment Report) that:
• you had previously had and/or continued to suffer from a condition relating to your scapular area; and/or
• your condition restricted your daily activities; and/or
• your condition had the potential to affect your duties as a police officer.
• Acted dishonestly and without integrity in that you consistently misled either or both the NHS and/or WA Police Force in relation to your health and capacity to perform your duties as a police officer.
• On 13 November 2020, you unreasonably failed to abide by a direction to attend a managerial interview.
15 The respondent considered the appellant’s response to the NOITR, provided by the appellant’s solicitors on 18 February 2023. By letter of 17 May 2023, the respondent informed the appellant that he maintained his loss of confidence in him to remain as a police officer with the Police Force on the following amended grounds:
• Acted dishonestly and without integrity, when you failed to disclose on your WA Police Force Application for Employment as a Police Officer (P58 Health Assessment Report) that:
(a) you previously had and/or continued to suffer from a condition relating to your scapula area; and/or
(b) your condition restricted your daily activities; and/or
(c) your condition had the potential to affect your duties as a police officer.
• Acted dishonestly and without integrity, in that you consistently misled either or both, the NHS and/or the WA Police Force in relation to your health and capacity to perform your duties as a police officer.
16 The respondent informed the appellant that he had recommended to the Minister for Police that the appellant be removed from office. Subsequently, a Notice of Removal dated 30 May 2023 was served on the appellant on 2 June 2023, effecting his removal from office as a police officer from that date.
The appeal
17 On 30 June 2023 the appellant, under s 33P of the Police Act commenced an appeal against the respondent’s decision to remove him on the grounds that his removal was harsh, oppressive or unfair. Counsel for both parties made detailed and helpful written and oral submissions to the Commission, in support of their respective contentions. It was put by the parties, and agreed by the Commission, to determine first whether any of the appeal grounds were made out. If so, the question of remedy is to be dealt with at a later stage. The particulars of the appellant’s grounds of appeal are as follows:
1. It was not reasonably open to the Commissioner to conclude, and there was no logical or sound basis to hold, as the Commissioner did, a loss of confidence in Mr Little’s suitability to continue as a member of WA Police Force based on concerns regarding his honesty, integrity and conduct (Conclusion), because:
(a) the Conclusion was based on adverse findings on two allegations, neither of which can be sustained on a logical or sound consideration of the evidence, because:
i. contrary to the first stated ground of removal that Mr Little “[a]cted dishonestly and without integrity, when you failed to disclose on your WA Police Force Application for Employment as a Police Officer (P58 Health Assessment Report) that: (a) you previously had and/or continued to suffer from a condition relating to your scapula area; and/or (b) your condition restricted your daily activities; and/or (c) your condition had the potential to affect your duties as a police officer”, it cannot be sustained that Mr Little acted dishonesty and without integrity in the face of the evidence that in obtaining employment with WA Police Force:
A. Mr Little did make full disclosure in the application process of his medical condition and surgery including in the form of detailed medical reports from his treating medical practitioners;
B. he was assessed and deemed by a medical practitioner to be fit for employment with WA Police Force at the time and for the purposes of his application;
C. he was entitled to rely on the medical evidence that he was fit for employment with WA Police Force;
D. he had up until that time been working as a policeman in the United Kingdom;
E. he attended and passed 12 weeks advanced training in a Transition Course at the Police Academy of WA Police Force, in which he was required to demonstrate fitness and competence in the whole range of policing duties; and
F. having commenced employment with WA Police Force as a police officer he was successful in the performance of his duties for several years other than for a period of leave due to unrelated injuries he suffered in a car crash in 2015; and
ii. contrary to the second stated ground of removal that Mr Little “[a]cted dishonestly and without integrity, in that you consistently misled either or both, the NHS and/or the WA Police Force in relation to your health and capacity to perform your duties as a police officer”, it cannot be sustained that Mr Little acted dishonesty and without integrity in the face of the evidence that:
A. Mr Little did not mislead WA Police Force in relation to his state of health, his capacity and or his claims – for the same reasons in relation to ground 1(a)(i);
B. Mr Little made no secret of his NHS claim with WA Police Force, and in fact regularly made disclosures in relation to the claim including providing that as a reason he needed to take leave to attend to the claim in the United Kingdom;
C. Mr Little did not mislead the NHS in relation to his state of health, capacity or his claims because his NHS claim was based on his possible incapacity to work as a frontline police officer in the future. It was not alleged in his NHS claim that Mr Little was presently incapacitated; on the contrary it was made explicit in his NHS claim that he continued to work as a police officer in WA Police Force; and
D. there is no material inconsistency between his employment with or disclosures to WA Police Force and his NHS claim.
(b) the Conclusion was based on a denial of procedural fairness and natural justice in that the Commissioner’s decision to remove Mr Little was based (at least in part) on further matters put before the Commissioner after the Notice of Intention to Remove was provided to Mr Little and on which Mr Little had no opportunity to respond before the decision to remove was carried out, including:
i. 10 additional documents, including an Analysis of Response (AR) dated 15 May 2023 containing or referencing new, highly prejudicial assertions, allegations and material, including:
A. a witness statement suggesting that Mr Little had evaded service of the notice of intention to remove thus casting aspersions on his credibility (AR [10]);
B. that Mr Little had not used a firearm during his service in the UK, suggesting this contradicted his declaration of fitness to perform the role in WA (AR [31]);
C. suggesting (incorrectly) that Mr Little made false claims in relation to his successful performance with WA Police Force (AR [36]); and
D. asserting the Mr Little ‘failed’ to provide any supporting evidence to confirm his assertion that he was open about his NHS claim from the outset (AR [41], [48], [99], [136]), when he was not asked for any such evidence, and it was not a particular of any allegation that he has concealed his NHS claim from WA Police Force;
E. asserting “evidence shows it wasn’t until 25 May 2018, nearly 5 years after his commencement with the WA Police Force that Little advised a supervisor of his back paid and pain relief medication” (AR [96], [136]); which was contradicted by Sargeant Renting’s evidence that quite a few people knew about it and Mr Little wasn’t hiding it at all, and that he, Renting knew about it from 2014 (AR [98]; Transcript of interview 20-28);
ii. Transcript of an investigation interview on 27 April 2023 (AR Doc 46) of the officer, Sergeant Renting, to whom Mr Little made reported fatigue that is relevant to this ground in three ways:
A. firstly, the interviewee Sergeant Renting corroborated Mr Little’s evidence that he had disclosed his NHS claim and health condition;
B. secondly, it demonstrated that the investigators were biased against Mr Little and were fishing for evidence against him, including in relation to matters that had nothing to do with the grounds for removal;
C. thirdly, several prejudicial and irrelevant matters were raised in the transcript and put before the Commissioner in the material in support of the removal;
iii. it was not put to Mr Little for response, but it was noted in reaching a conclusion on allegation 2, that Mr Little “was identified undertaking physical activity that was potentially inconsistent with the impairments he was reporting in the context of the [NHS] claim” (AR [137], [44]);
iv. it was asserted that there was inconsistency between Mr Little’s application to WA Police Force in February to May 2013 and what is contained in Rehabilitation Cost Report dated September 2014 in support of his NHS claim to the effect that he was unable to appropriately position his arm to use a firearm (AR [30] – [33]); which Mr Little could have pointed out, if he had been afforded that opportunity, was answered by the fact that the assessment for this Cost Report was July 2014 some 17 months after his P58 Application to WA Police Force (not 9 months as stated in the AR material provided to the Commissioner that was not provided to Mr Little); and at the time of his application and Transition Course to WA Police Force he successfully completed firearms handling;
v. relying on Mr Little’s failure to respond to purported claims by a colleague that he was and had been on heavy pain killers (AR [87(b)]), despite that not being a particular of dishonesty alleged against him; and
vi. notwithstanding that a third allegation of a failure to comply with a direction to attend managerial interview was not substantiated (because Mr Little was not medically fit to attend and the interview meeting was cancelled), it was nevertheless put against Mr Little that this was an opportunity to respond to allegations that he did not partake in (AR [76]).
2. Mr Little’s conduct cannot have been demonstrated to have impacted adversely on the reputation or security of the Western Australia Police Force, and therefore public interest considerations do not support the removal of Mr Little, because:
(a) Ground 1 is repeated; and
(b) Mr Little was highly successful in the performance of his duties including acting as Sergeant from time to time, and was highly regarded by his colleagues and supervisors.
And the Appellant seeks:
1. An order pursuant to section 33U(2) of the Police Act that the order to remove Mr Little from WA Police Force is and is taken to have always been of no effect, and that Mr Little be paid for all remuneration he did not receive since his removal.
2. An order in the alternative to 1, pursuant to section 33U(3) of the Police Act that the Commissioner pay Mr Little compensation equivalent to 12 months’ remuneration for loss and injury caused by removal, including loss of access to compensation following medical discharge.
3. Such other order as the Commission deems appropriate.
Preliminary issue
18 As part of the appellant’s case on appeal he raised an issue that was infused with his substantive case as to why he maintained his removal was harsh, oppressive and unfair.
19 This issue related to an incident which occurred in November 2018, when the appellant conducted a ‘vehicle stop’ while on duty in the northern suburb of Butler. As a result of this incident, the appellant was charged with two counts of assault occasioning bodily harm, under s 317(1) of the Criminal Code. The appellant was acquitted, after trial, of both charges on 11 June 2020 (see Respondent’s Amended Bundle p 36).
20 The appellant maintained that despite acknowledging that the charges did not form part of the loss of confidence process and that the process was put on hold pending the disposition of the criminal proceedings (see RAB p 517), the criminal proceedings caused him considerable psychological stress. It was contended that this stress contributed to the appellant’s poor mental health. In light of this, various medical professionals considered that the appellant should be medically retired.
21 We are not persuaded that these matters can be taken into account in considering the appellant’s appeal against his removal. First, neither the assault charges nor the claim by the appellant that he should have been medically retired, form part of the appellant’s grounds of appeal against his removal. Second, the investigation by the respondent into the allegations leading to the loss of confidence process, was suspended whilst the criminal proceedings were dealt with.
22 Third, and in any event, when a police officer claims to be suffering from a mental health condition, such that they should be considered for medical retirement, a rigorous process is commenced under Part IIC of the Police Act. Whether this process, had it been pursued in relation to the appellant, would have led to his medical retirement, can only be speculative. It cannot be considered by the Commission as a relevant consideration for the purposes of the disposition of this appeal.
Principles applying to the appeal
23 The statutory power for the respondent to remove a police officer from the Police Force under s 8 of the Police Act is to be exercised in accordance with Part IIB. Section 33L enables the respondent to issue an officer a notice that he does not have confidence in the officer’s suitability to continue as a member of the Police Force, having regard to ‘the member’s integrity, honesty, competence, performance or conduct …’: s 33L(1). The exercise by the respondent of the power of removal, is not the same as the dismissal of an employee at common law or under the Industrial Relations Act 1979 (WA). A removal from office, is because the respondent has lost confidence in the officer, by reason of the matters set out in s 33L. A removal is not a punishment for misconduct, rather, the intent of the legislation is for the respondent to be able to maintain standards of members of the Police Force, to protect the reputation of the Force, and to protect members of the community: The Honourable Minister of Police v Western Australian Police Union of Workers [2000] WAIRC 01174; (2000) 81 WAIG 356 per Sharkey P at [112].
24 The approach of the Commission in dealing with appeals under Part IIB of the Police Act was summarised in Lee v Commissioner of Police [2021] WAIRC 00631; (2021) 102 WAIG 42 where Cosentino SC and Emmanuel C (Kenner CC agreeing) observed at [49] – [51]:
[49] Section 33P of the Police Act 1892 (WA) (Police Act) allows a person who has been removed from office as a result of removal action under s 33L to appeal to the Western Australian Industrial Relations Commission (Commission) on the ground that the decision of the Commissioner of Police to take removal action was harsh, oppressive or unfair. This involves the test articulated in The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 of whether the employer’s lawful right to dismiss an employee has been exercised so harshly or oppressively as to amount to an abuse of that right.
[50] Under s 33Q, on hearing an appeal under s 33L, the Commission must proceed as follows:
33Q. Proceedings on appeal
(1) On the hearing of an appeal instituted under this Part, the WAIRC shall proceed as follows —
(a) first, it shall consider the Commissioner of Police’s reasons for deciding to take removal action;
(b) secondly, it shall consider the case presented by the appellant as to why that decision was harsh, oppressive or unfair;
(c) thirdly, it shall consider the case presented by the Commissioner in answer to the appellant’s case.
(2) The appellant has at all times the burden of establishing that the decision to take removal action was harsh, oppressive or unfair.
(3) Subsection (2) has effect despite any law or practice to the contrary.
(4) Without limiting the matters to which the WAIRC is otherwise required or permitted to have regard in determining the appeal, it shall have regard to —
(a) the interests of the appellant; and
(b) the public interest which is taken to include —
(i) the importance of maintaining public confidence in the integrity, honesty, conduct and standard of performance of members of the Police Force; and
(ii) the special nature of the relationship between the Commissioner of Police and members of the Force.
[51] The effect of s 33Q is to include a requirement for the Commission to determine whether there is a logical and sound basis for the Commissioner of Police finding as he did. The Commission should be attentive to the Commissioner of Police’s reasons, examining them closely in terms of substance and the process by which they were formulated: Carlyon v Commissioner of Police [2004] WAIRC 11966; (2004) 85 WAIG 708 at [15]; Ferguson v The Commissioner of Police [2017] WAIRC 00238; (2017) 97 WAIG 502. If there is a sound, logical reason for removal, then, even if an aspect of the Commissioner’s reasons is invalid or mistaken, it does not necessarily mean that the whole of the decision ought to be overturned. It is the overall reasonableness or fairness of the decision, taking account of all of the circumstances, that is significant: Polizzi v Commissioner of Police [2014] WAIRC 00302; (2014) 94 WAIG 477 at [144]. See also McGrath v Commissioner of Police [2005] WAIRC 01989; (2005) 85 WAIG 2006.
25 It is well established that in both claims of unfair dismissal before the Commission and appeals of the present kind, it is not for the Commission to assume the chair of the management or the respondent as the case may be, and to decide for itself whether a dismissal or a removal is harsh, oppressive or unfair: Carlyon v Commissioner of Police [2004] WAIRC 11966; (2004) 85 WAIG 706 at [215]. Furthermore, the burden rests on the appellant to establish that the respondent’s exercise of the power of removal in the Police Act was harsh, oppressive and unfair: s 33Q(2). In determining the appeal, the Commission is to consider the matters raised in the context of the grounds of appeal advanced by an appellant, which mark out the boundaries of the issues to be decided by the Commission and which must specify the basis upon which the removal is said to be harsh, oppressive and unfair: Moran v Commissioner of Police [2015] WAIRC 00464; (2015) 95 WAIG 804 per Beech CC at [96]-[97] and Kenner C (as he then was) at [175]-[176].
Reasons for removal
26 The respondent’s reasons for removing the appellant from the Police Force are succinctly summarised in the Summary of Investigation as a part of the respondent’s loss of confidence process. An overview of the reasons for removal is set out in the section headed ‘Executive Summary’, and rather than paraphrase from aspects of it, we reproduce it in full as follows (see RAB pp 2-5):
1. Senior Constable Guy Frederick LITTLE (LITTLE) was employed as a police officer in the United Kingdom (UK) between August 2008 and October 2013.
2. Between November 2010 and June 2012, LITTLE obtained a number of medical opinions in relation to a painful back and left shoulder condition that he had complained of suffering from since his teens. Ultimately, in June 2012, LITTLE had exploratory surgery.
3. On 16 October 2012, after obtaining the surgery results, LITTLE signed a preliminary witness statement listing himself as the “claimant” and Mid Staffordshire National Health Service (NHS) Foundation Trust as the “defendant”. He alleged, in essence, that a substandard surgical procedure he underwent as a child had severed a nerve in his neck whilst removing a fatty lump. LITTLE believed the severed nerve and a related neuroma development caused him to suffer pain and was the cause of his resultant condition.
4. LITTLE stated that as the result of the condition he was ‘struggling as a police officer’ and was concerned the condition would affect his career.
5. On 17 February 2013, LITTLE applied for employment with WA Police Force. During the application process, LITTLE failed to declare his neck nerve injury, scapular condition or associated pain. He also did not declare the NHS claim.
6. On 29 May 2013, LITTLE accepted an employment offer made by WA Police Recruiting. On 28 October 2013, he commenced as a recruit on a transitional course with WA Police Force. He graduated on 29 January 2014.
7. LITTLE returned to the UK several times thereafter to convene with consulting specialists and legal representatives regarding his NHS claim. The materials obtained by the Review Officer reinforce that, in his application to WA Police Force, LITTLE omitted significant medical issues which he declared to the court were permanent. The materials demonstrate that LITTLE was not forthcoming about these issues due to not wanting to jeopardise his opportunity to immigrate to Australia and join WA Police Force.
8. The Review Officer discovered other related issues to address whilst inquiring about LITTLE’s application to WA Police Force. In summary, it would appear that LITTLE has consistently misled either the NHS, or WA Police Force, or both, in relation to his health.
9. During his period of employment with WA Police Force, LITTLE’s NHS claim was on foot. The materials obtained by the Review Officer indicate LITTLE was providing medical specialists, and ultimately the court, with information to the effect that he was significantly compromised in his ability to properly perform his role as a police officer with WA Police Force.
10. This information was not provided to WA Police Force. Upon commencing employment with WA Police Force, LITTLE as an employee had an obligation and duty under section 20 of the Occupational Safety and Health Act 1984 (WA) to ensure his own safety and also the safety and health of others. This legislative requirement was not obeyed by LITTLE, who provided information in the NHS claim to the effect that he continued to work with a physical impairment which created an operational risk to himself and others.
11. On 3 September 2017, despite having declared to the NHS his inability to recreationally climb, LITTLE climbed a mango tree and dislocated his right (‘good’) shoulder, requiring emergency services assistance to be removed from the tree and medical treatment. LITTLE did not report the incident to WA Police Force or disclose it on his NHS claim. Rather, in the NHS claim he reported a right shoulder dislocation which resulted from falling over at home; and the only right shoulder incident he reported to WA Police Force was an alleged on-duty incident in 2018.
12. On 11 October 2017, LITTLE signed an authorisation letter allowing the release of his personnel file from WA Police Force to support his NHS claim. His non-disclosure of the mango tree incident is consistent with a pattern of dishonesty to ensure that his NHS claim was not jeopardised.
13. On 25 May 2018, LITTLE advised a supervisor of his back pain and subsequent pain relief medication. It appears that this was the first instance the WA Police Force had heard of LITTLE’s pain management and pre-existing injury. This admission was more than five years after the commencement of the NHS claim and LITTLE’s application for employment with WA Police Force.
14. On 17 October 2018, LITTLE disclosed his NHS claim to his supervisor, Acting Sergeant Rachael McCALLUM (McCALLUM). LITTLE told McCALLUM that he had been on strong opioid pain killers for ‘years’. He also told McCALLUM that his NHS claim would be jeopardised if his career plans at WA Police Force came to light.
15. An AUSTRAC search revealed LITTLE was paid two amounts into his personal bank account from his lawyer Irwin and Mitchell which were labelled ‘beneficiary customer’. On 8 February 2018, LITTLE was paid $13,260 and on 20 December 2018, LITTLE received $515,509.34. It can be inferred the final payment, less lawyers’ costs, was the settlement reached between LITTLE and the NHS.
16. On 7 November 2018, LITTLE was involved in an on-duty incident whilst conducting a vehicle stop in Butler. On 12 December 2018, he was criminally charged with two counts of assault occasioning bodily harm, contrary to section 317(1) of The Criminal Code, in relation to the Butler incident. One of these charges was later downgraded to a common assault charge. On 11 June 2020, LITTLE was acquitted on both charges. The Butler incident has not been considered as a basis for loss of confidence.
17. On 23 July 2020, LITTLE commenced full-time sick leave. He remains on sick leave.
18. As part of investigations into the veracity of the information provided to WA Police Force and the NHS, on 13 November 2020, LITTLE was directed to attend a managerial interview. He failed to do so, citing poor mental health. This was in conflict with the medical information supplied by Doctor PIIRTO (PIIRTO) at the time.
19. On 7 October 2021, the managerial matters were referred to the Commissioner’s Loss of Confidence (LoC) process. Subsequently, on 26 November 2021, I (Inspector Sharon Bird) was appointed as the Review Officer.
20. Having regard to Police Act 1892, s 33L and Police Force Regulations 1979, reg 6A02, the Commissioner is to determine the suitability for a member to remain with WA Police Force, on the grounds of their integrity, honesty, competence, performance, or conduct.
21. In summary, it is evidenced LITTLE has consistently misled either the NHS, or WA Police Force, or both, in relation to his health. Should LITTLE deny that he lied or omitted to disclose to WA Police Force his medical impairment and the significance of those injuries which impacted him in the workplace and everyday life, then one can only conclude he has acted to mislead the NHS and ultimately the court on the same matters.
22. The inconsistent information given by LITTLE to the NHS and WA Police Force was a matter that required explanation by LITTLE. However, LITTLE has not been compliant with the managerial interview process, refusing to attend a scheduled managerial interview despite a medical opinion that he was able to attend. He thereby impeded further investigation of the matter.
23. Having completed the following Summary of Investigation (SOI), in my view, it is open for the Commissioner, having regard to LITTLE’s conduct, honesty and integrity, to lose confidence in his suitability to remain a member of WA Police Force.
Consideration of the appeal
Ground 1(a)(i)
Overview
27 The essence of this complaint by the appellant was that it was not reasonably open for the respondent to lose confidence in him when applying appropriate rigour to all of the evidence. It was contended that the appellant did make a full disclosure of his medical history, including a significant amount of medical material, which included reference to his scapula condition, on the P58 Health Assessment Report. Additionally, the appellant contended that having passed the training course at the Police Academy, and having worked successfully as a police officer in Western Australia for a number of years, in the context of the disclosures he made at the time of his application, it was not open for the respondent to conclude that the appellant lacked honesty or integrity, such that the respondent should have lost confidence in him.
28 The appellant accepted that he did not correctly complete what he referred to as the ‘tick the box’ section of the P58 at section 1.2 on p 3 of the form. This required the appellant to answer whether he had ever or currently suffered from specified medical conditions or problems, which included ‘Musculoskeletal (shoulder, bones, joints, muscles, spine) e.g.: arthritis, back or ankle pain’. The appellant also accepted that he did not fully respond to the question as to whether he had had any, or whether he was to in the future, have any ‘surgical intervention’, and only disclosed previous surgery to treat varicose veins.
29 It was the appellant’s contention that had the application process only included this information, then this would have caused him difficulty. However, part of the application process included the completion of the relevant part of the P58 by a medical practitioner. It also involved the provision on request by the respondent, of further medical information.
30 The appellant maintained that in view of all of this material which he made available to the respondent as a part of the application process, he did not consider it necessary to disclose anything further. The appellant submitted that he had been a police officer in the United Kingdom, had worked successfully in this job and he could continue to do so as a police officer in Western Australia. The appellant submitted that this was a reasonable belief in view of all of the medical evidence provided to the respondent at the time. He maintained that the respondent was provided with the ‘full picture’ as to his medical history.
31 It was further contended that in relation to disclosures of his medical history, aspects of the P58 were ambiguous and lacked clarity. The appellant submitted in this respect, that the appellant found the question posed in section 1.5 (set out below), as being unclear. The appellant contended that this could mean either whether there was a current likelihood of an applicant being affected in their ability to perform duties as a police officer, or, whether there was the presence of any illness or injury that could affect an applicant at that point in time (i.e. at the time of the application).
32 On this basis, the appellant maintained that given the answers he provided in the P58, along with the supporting medical information, the respondent was made well aware of his medical history. It was submitted that this is in the context of the appellant’s overarching assertion that the P58 questions themselves, were inherently ambiguous. In this context, the appellant submitted that his application to join the Police Force was fulsome, and it was not misleading or dishonest.
33 The appellant was also critical of the respondent’s Analysis of Response, as a part of the loss of confidence process. It was contended that as an example, the AOR merely reiterated the initial view adopted by the respondent, that the appellant was not forthcoming in his application as to his medical history. The appellant contended that the AOR did not properly engage with the appellant’s response that he had made proper disclosures as to his health and provided the respondent with a ‘full picture’.
34 Finally, as to the application process, the appellant now accepts that his answers in the P58 should have been more complete. This should have included the appellant’s limited ability to lift his left arm and extend it fully. Despite this concession now made, the appellant maintained his belief that at the time of the application, he had the capacity to work as a police officer and this was supported by the medical reports he submitted to the respondent at the time.
35 The question to be resolved in relation to this sub-ground is whether the respondent’s conclusions that he had lost confidence in the appellant, were reasonably open to him, based on the material he had before him when coming to that view.
Application to join the Police Force
36 The appellant commenced the application process to join the Police Force by an application dated and signed by him on 17 February 2013. The application process comprised a number of steps. The first step comprised a general application including the appellant’s background, then occupation, educational standards, work history and an integrity assessment. The appellant also sought recognition of his prior service as a police officer with the West Midlands Police Service in the United Kingdom, where he had been a police officer for about four and a half years.
37 The second and most important part of the application process for present purposes, was the completion of the P58. Given the nature of an appointment as a police officer, the content of the questions set out in the P58, and the requirement on an applicant to make a declaration as to the veracity and completeness of the information provided, with absolute candour and truthfulness, was and is necessary, in completing this aspect of the appointment process.
38 The relevant part of the P58 for the purposes of this appeal, is headed ‘Personal History’ (see RAB p 335). Question 1.2 is prefaced by a general question as to an applicant’s ever having had or currently having a ‘condition or problem’. The appellant was required to answer yes or no to the presence or absence of a series of medical conditions. Given the importance of the P58 to these proceedings, we will reproduce question 1.2, and other relevant questions, as follows. As the questions could not be clearly and legibly copied from the document in the Respondent's Amended Regulation 92 Bundle, it has been recreated verbatim, including any grammatical errors as follows:

  1.2 Have you ever had or do you currently suffer from any of the following medical condition or problem? (If yes please tick relevant box and add any comment you believe relevant)
Condition/problem
Answer
Yes/ No
Details (including all relevant Information)
'
Issues with sight, speech or hearing
□ þ
N/A
Frequent strain, fatigue or sleeplessness
□ þ
N/A
Any cardiovascular disease including heart problems, high blood pressure, rheumatic fever or any other heart related complaint
□ þ
N/A
Respiratory problems (including chest pain, asthma, difficulty breathing, or other lung disease)
□ þ
N/A
Central nervous system problems (including neurological disorders, epilepsy, head injury, fainting attacks or fits)
□ þ
N/A
Any psychiatric or psychological condition including anxiety, depression or other psycho-emotional disorder
□ þ
N/A
Any chronic skin disorder
□ þ
N/A
Tumours, blood disorders or diabetes
□ þ
N/A
Indigestion, gastric, peptic or duodenal ulcers
□ þ
N/A
Kidney or bladder disease·
□ þ
N/A
Musculoskeletal (shoulder, bones, joints, muscles, spine) eg: arthritis, back or ankle pain
□ þ
N/A
Infectious or transmittable diseases
□ þ
N/A
Other
□ þ


39 The question in 1.2 is not time limited. It refers to whether a candidate has ever had (this means at any time in the past) or currently suffers from, any of the list of conditions or problems identified. The category of ‘Musculoskeletal’ is defined for the reader, and includes ‘shoulder’. At the time of the completion of the P58, the appellant had been suffering for some years from a significant condition in relation to his left scapula. Anatomically, the scapula is the shoulder-blade.
40 There can be no doubt as to the clarity of the questions asked in 1.2. Any condition or problem of the shoulder, past or present, was required to be disclosed. The appellant answered in the negative. This was despite the appellant having lived with his scapula condition for many years, and which condition was increasingly becoming troublesome for him. If there was any possible doubt as to the musculoskeletal category of condition or problem, there was an obligation on the appellant to list any ‘other’ conditions or problems, into which his scapula condition could have, and should have, been declared.
41 Whilst in his oral submissions the appellant was at pains to suggest that his level of education was such that he may have had some difficulty with these sorts of questions, it is inconceivable that the appellant could have had any misunderstanding or could have failed to appreciate the need to disclose the scapula condition he was suffering. We will deal with this issue more fully below.
42 The next question the appellant was required to answer was 1.3. This question related to any health restriction on an applicant’s daily activities, and the question is as follows:

1.3 Do any health problems that restrict your daily activities? Yes □ No þ

If yes, give details N/A



43 This question is open ended. It is unambiguous. It refers to any health problems that impose any restriction on an applicant’s daily activities. Again the appellant answered in the negative.
44 The next relevant question is 1.5. This relates to illness or injuries affecting the work of a police officer or the training associated with police work. Question 1.5 is as follows:

1.5 Have you ever had or do you currently have any illness or injury which may have any likelihood of affecting duties as a Police Officer or any training associated with police duties including your ability to undergo continuous physical exercise or vigorous activity?? Yes □ No þ

If yes, give details N/A



45 Again, the question posed is clear. We reject the contentions put by the appellant that there is some ambiguity in the question as written. It does not require an applicant to provide a medical diagnosis. The obligation was on the appellant to disclose any injury or illness, past or present, that would be likely to have an impact on his work as a police officer, or any training required of a police officer. The appellant answered in the negative.
46 The next relevant question on the P58 was at 1.6. This related to any surgery that the appellant may have had in the past, or was to undergo, of any kind. It was not limited in scope, albeit it included certain kinds of surgical intervention. The question posed is as follows:

1.6 Have you ever received or are you scheduled to receive any surgical intervention including any orthopaedic surgery such as knee or shoulder reconstruction?? Yes □ No þ

If yes, give details Varicose vein in the back of both knees to be removed as police can stand for long periods of time




47 The only noted surgical intervention that the appellant acknowledged was not related to the appellant’s scapula condition.
48 If there was any doubt as to the scope of the questions set out above, which in our view there was not, and that they related to both historical, present and future health and medical issues, the notes at the bottom of page 4 of the P58, puts that matter beyond any possible controversy. The notes are as follows:
Note: If applicant indicates having any of the conditions included in Section 1 they are to be automatically requested to gain report of a Specialist outlining:
1. Past and/or present medical condition
2. Prognosis on the progression of the condition (if any)
3. Details of current management practices or current condition
4. Future treatment and the projected outcome
5. Clearance certificates from specialists that applicant will be able to undertake all training as outlined in Medical Critical Training Abilities report included In Appendix 1.

49 The appellant suggested in his oral submissions that these notes signalled to him that the respondent would get further medical reports anyway, which meant in some way he would not be obliged to disclose everything. In our view they are not able to be raised in his defence. These notations speak for themselves. They make it clear that if an applicant answers ‘yes’ to having any of the conditions in section 1 of the P58, then they will be required to obtain a specialist report about the particular condition. But the point is the appellant answered ‘no’. The notes also make it clear that the respondent, in considering whether an application for appointment as a police officer should be successful, needed to know and be furnished with full details of all prior and current medical conditions, how they may progress in the future, how they may be managed and their possible outcome. This is contrary to a central plank of the appellant’s case that he did not think anything in the P58 related to his future likely medical condition.
50 We also observe that whilst the appellant referred to it for other reasons, including there was some conflict between medical experts concerning the appellant’s condition in his NHS claim, which is not uncommon in such matters, Mr Redfern, a consultant orthopaedic surgeon, observed that none of the complaints made by the appellant about his shoulder condition appear in his statements in support of his application to join the Police Force (see RAB pp 384-385).
51 The final question for present purposes, related to whether any claim for compensation, had ever been made by the appellant. That question is:

1.8 Have you ever made any claim for compensation, e.g. public liability, workers compensation, MVPID (Motor Vehicle Injury Division of the Insurance Commission of Western Australia), or disability pension from any source, including service within the defence forces?? Yes □ No þ

If yes, give details stress fracture right neck of femur, military doctor failed to notify me of this resulting in fracture
Date of clearance   2002
Prognosis   Surgical repaired 2000 no further issues



52 The appellant noted a stress fracture in his femur, which occurred during his period of military service. No other mention is made of any claim for compensation. This should have included, if the appellant was being open and candid, his NHS claim that whilst not then filed, was being substantially progressed at the time of his application.
53 Finally, the appellant was, as a part of completing the P58, required to sign a declaration as to the truth of the answers and information he provided. Also, the declaration made clear the consequences for an applicant who failed to be truthful and fulsome in the information provided. The declaration was in the following terms:
Declaration

I, (full name)                    G UY FREDERICK LITTLE                                                 , declare all the answers in this Medical Questionnaire to be, to the best of my knowledge and belief, true and correct.

I acknowledge that the provision of incorrect information or the withholding of any information relating to my mental and/or physical health and fitness may adversely affect the assessment of my character in the selection process. If my declaration is found to be false or deficient during the application process stage, my application may be withdrawn; if my declaration is found to be false or deficient after I have been sworn into the WA Police it may lead to my dismissal from the WA Police.

Medical officer examination
54 As noted the appellant attended a medical appointment with Dr Piper, a general practitioner, in the UK on 8 April 2013. This was to complete the Medical Officers Examination section of the P58. Dr Piper recorded no abnormalities present, including of the appellant’s locomotor system. Dr Piper noted the scar on the left side of the appellant’s neck from a nerve operation. Otherwise, Dr Piper declared the appellant as suitable for appointment.
55 As also noted earlier, this led the respondent to request more information in relation to the scar on the appellant’s neck. On 1 May 2013, the appellant informed the respondent’s recruitment office by email that he was in the process of getting further information and stated to Ms O’Connor ‘I am in great health and physically fit…’ (see RAB p 351).
56 On 8 May 2013, the appellant sent by email a number of documents in response to the respondent’s request for further information. The first was a letter from a general practitioner, Dr Smithers of the same date, enclosing hospital documents in relation to the appellant’s 1 June 2012 surgery on his neck. Dr Smithers expressed the opinion that the appellant was ‘fit and active’, and that he had no reservations in recommending the appellant as being fit (see RAB pp 353-357).
57 This material also included a letter from Mr Quick at the Royal National Orthopaedic Hospital dated 30 August 2012 to Mr Shad, a Consultant Neurologist at the University Hospital, Coventry. This letter referred to a review of the appellant on 21 August 2012 following his earlier surgery on 1 June 2012. It noted that there had been little improvement. It noted that the appellant continued to complain of ‘parascapular pain and the other dyskinetic scapula thoracic range of movement’. The appellant was to be reviewed in a further four months (see RAB p 358).
58 This letter prompted further queries from the respondent’s recruitment office on 9 May 2013 for a follow-up report. The respondent’s doctor had requested a clearance letter from the appellant’s surgeon. On 14 May 2013 the appellant sent to Ms O’Connor a copy of the ‘Discharge Letter’ of the same date, from the Registrar of the Peripheral Nerve Injury Unit at the Royal National Orthopaedic Hospital, Mr Roberts. The appellant’s covering email stated that the letter ‘shows that I am fully recovered with full range of movement and strength’.
59 The Discharge Letter from Mr Roberts relevantly stated:
This gentleman has completed his treatment for a left accessory nerve problem which involved an operation and subsequent shoulder physiotherapy. We are delighted to discharge him today as he requires no further treatment and has made a full recovery. On examination he has full strength and normal function in the muscles of his neck and shoulder and should have no problem in future fulfilling his duties as a police officer, now or in the future. We do not expect him to require any further treatment for this problem.
60 On the strength of the application documents, including the P58 and the supplementary medical information provided by the appellant, the respondent informed the appellant on 28 May 2013 that he had successfully completed the application process.
Appellant offered appointment as a Police Officer
61 On 29 May 2013, the appellant signed the ‘Western Australian Police Terms of Engagement as a Police Officer’. Along with the P58, this was a significant document. The appointment by the respondent as a police officer under s 7 of the Police Act was subject to a number of express conditions. For present purposes, pars 11 and 12 relevantly provided:
11. I agree to provide the Inspector of Police Recruiting with immediate written notification of the following circumstances should they arise between the date of my original application and the date on which I commence duty:
i) Notice of any disability, illness or injury I have sustained
…
v) Notice that I have become aware that information I provided in my original application may be false or misleading
12. I agree that my failure to comply with clause 11 of this agreement may result in the withdrawal of my offer of employment, by removal from WA Police pursuant to Section 505A of the Police Force Regulations 1979 whilst on a period of of [sic] probation or my removal pursuant to Section 8 of the Police Act 1892 once I have completed the probationary period.
62 These terms provided to the appellant an opportunity to correct any errors or omissions, as part of the application process. The Terms of Engagement also contained an acknowledgement in the following terms:
I acknowledge that I have read and fully understand this agreement and have not been induced or coerced into accepting these conditions in any way.
63 The preceding material, discussed above, as outlined in the appellant’s case on this sub-ground of appeal, was on its face, plausible. The respondent was entitled to, and must have been able to rely upon the declaration made by the appellant, in his application to join the Police Force, along with the supporting material provided, at face value, which he did. The integrity of and trust to be placed in a newly appointed police officer, commences at this early stage, and must remain between an officer and the respondent. This underpins the public confidence in the integrity of the Police Force and, the ongoing maintenance of confidence by the respondent in his officers’ integrity, honesty and conduct.
64 The declarations made by the appellant led to the respondent being satisfied that he could make the appellant an offer of appointment as a police officer, subject to probation and the successful completion of the transitional Police Academy Training program.
65 However, it was what occurred subsequently, with later disclosures by the appellant and the discovery by the respondent of material relied upon by the appellant in connection with his claim for damages for negligence against the NHS in the United Kingdom, arising from his neck surgery in 1990 as a child, that changed the situation substantially. This included material that not only called into question the appellant’s honesty and integrity in the application process in connection with his appointment as a police officer in Western Australia, but also the veracity of some of his statements in the NHS claim, and his motivation for making them, which resulted in a substantial financial settlement. We turn to consider these issues now.
The NHS claim
66 Events took place in late 2018 that raised concerns by the respondent that the appellant may not have been truthful and transparent in his application process for appointment as a police officer in Western Australia in late 2012 and early 2013. In September 2018, the appellant disclosed to a police officer colleague that he had been taking strong medications for shoulder and back problems (see RAB p 513). Shortly after in October 2018, the appellant made similar disclosures to another police officer colleague, Acting Sergeant McCallum, that he had been on very strong pain medication ‘for years’, because of a back injury and that he had an ongoing compensation claim in the United Kingdom (see RAB p 64).
67 The appellant also told Acting Sergeant McCallum that whilst he considered seeking a posting to the respondent’s Regional Operations Group, he did not want to pursue this as he did not want to appear to be capable of performing in a physically demanding job, because this may impact on his compensation claim. Acting Sergeant McCallum was familiar with the type of pain medication taken by the appellant and the impact on the appellant’s ability to function as a police officer. Accordingly, she raised the matter with the Officer in Charge at the Wanneroo Police Station, where the appellant was based at the time (see RAB p 64).
68 A subsequent review of the appellant’s pre-engagement file revealed that he had not disclosed his neck and back condition prior to his appointment. A meeting took place between the appellant and his Officer in Charge on 31 October 2018. The appellant disclosed his back injury while in the United Kingdom, and that it predated his appointment as a police officer in Western Australia (see RAB p 613).
69 As a result of these matters, the respondent commenced an investigation into the appellant’s non-disclosure of previous and ongoing medical issues to the respondent, both at the time of the appointment process and subsequently. This led to the discovery of a considerable amount of material, including emails with solicitors in the United Kingdom retained by the appellant; draft and signed witness statements; and other relevant documents, in connection with a claim for damages brought by the appellant against the United Kingdom Department of Health, alleging negligence in the performance of the surgery the appellant underwent on his neck when he was a child.
70 The content of this material had a direct bearing on the appellant’s application for appointment as a police officer in 2012-13, in terms of his responses to questions in the P58; the reliance placed by the respondent on the supplementary medical information provided by the appellant in making the appellant an offer of appointment as a police officer, and the appellant’s disclosure obligations after his commencement as a police officer. It revealed that the appellant failed to disclose his prior full medical history; the completion of the P58 contained misleading and untruthful information; and the supporting medical information upon which the respondent relied in offering the appellant an appointment as a police officer, was known by the appellant to be misleading and was deficient at the time it was provided. In short, the respondent was given far from the ‘full picture’, as the appellant contended on this sub-ground of appeal.
71 On 12 October 2012 the appellant signed a pre-claim witness statement in connection with his claim for damages arising from his neck surgery as a child in 1990 (see RAB pp 57-63). In the witness statement, the appellant referred to experiencing a stiff back and some back pain in his teenage years. Later, when in the Marines, the appellant reported not being able to lift his left arm out to the side to the same height as his right arm. From 2009-2010, the appellant was experiencing pain in his left shoulder which became progressively worse. Nerve conduction studies showed that there was nerve damage in his left hand shoulder. The appellant consulted other specialists who confirmed the nerve damage.
72 The appellant referred to his 2012 neck nerve operation which revealed that a nerve had been severed. He referred to a very large and bothersome scar which resulted from this operation. He noted that this was likely the cause of problems in his shoulder and back. The appellant was informed that the nerve damage was permanent and nothing more could be done.
73 The appellant reported the consequences of this, for his work and its overall effect on him. At [22]-[23] of his witness statement he stated:
The main impact that this has had on me is in relation to my job. I am a climbing instructor, but I can no longer climb and I can now only teach. I am also struggling as a police officer as I am in a lot of pain when wearing my stab vest. Whilst the problems have not stopped my career, I am concerned that they may affect my career in the future. I have had to take a lot of time off work and my sickness record is not good and so I am worried that this will affect my prospects of promotion.
I have been told that I have early arthritis in my left shoulder and that it is in the condition expected of a much older person. I am worried that arthritis and pain may bring an early end to my career.
74 The appellant stated his belief that the severed nerve and related neuroma were the cause of the pain and his then condition (see RAB pp 62-63).
75 It is startling that having signed this pre-claim witness statement on 12 October 2012, and having lived with the pain and impact on his daily activities and working life caused by his scapular condition for a number of years, that only about six months later, which can only be regarded as contemporaneously, the appellant would declare to the respondent that he was fit and in good health and completely omit any reference to these serious issues raised in his witness statement, in his answers in the P58. In addition to the other omissions referred to above, the appellant made no mention in the P58 of the advice to him of an early arthritic condition. The declaration that the appellant signed at that time, was false.
76 Subsequent revelations in connection with the appellant’s claim against the NHS, also have implications for the follow up medical information that the appellant supplied to, and which was relied upon by the respondent, in the appointment process. We will return to these issues later in these reasons.
77 It was also the case that prior to the appellant’s commencement in the transition Academy Course, in October 2013, on 1 August 2013, the appellant had initiated a letter of claim in the United Kingdom in connection with his damages action against the NHS. This document referred to the appellant’s ‘pain and restricted movement in his left shoulder and early onset of arthritis’. Reference was also made to permanent damage to the appellant’s spinal accessory nerve (see RAB at p 379 and p 753).
78 On 19 April 2016 the appellant received from his United Kingdom solicitors under cover of a letter of the same date, a further draft witness statement prepared by the solicitor, for the appellant’s review and completion. By this time, proceedings had been commenced in the United Kingdom High Court (see RAB pp 85-72). The appellant responded to his solicitor on 22 May 2016 in relation to this draft witness statement. In relation to a paragraph in the draft witness statement referring to his appointment with a doctor, which must have been proximate to his intent to move to Australia to become a police officer, the appellant said in his response (see RAB p 73):
xi) I remember seeing the doctor vividly, I was having a good period at that time and was doing a lot of physio ready for this appointment as depending on what he said I would not get to Australia. He asked me to raise my left arm up which I did but not from the side as it is impossible for me and have not been able to for as long as I can remember. He did not check to see the winging of the scapula when I did this, I was not put in for nerve studies to see what had been done. It was a very basic examination by a junior doctor who seemed to not know what he was looking for and I was not going to correct him. My left arm cannot go to the side it would break my joint. I possibly should have corrected him but did not want to lose the chance to go to Australia.
79 The appellant appears to have travelled to the United Kingdom several times, to consult with his solicitor and to have medical assessments undertaken. On 21 February 2018, the appellant’s solicitor confirmed the receipt of a further signed witness statement of 20 February 2018 sent by the appellant. A copy of the signed witness statement was not in the respondent’s Amended Bundle of documents, but an unsigned version dated February 2018 is (see RAB pp 86-112). It is clear enough from the chronology of the correspondence that the unsigned version annexed to the appellant’s solicitor’s correspondence was in its final form. This witness statement is very detailed and in addition to affirming and adding to the content of the 2016 draft witness statement, as to the major negative impact of the appellant’s scapula condition on his daily activities and work life, it also included reference to a broken collarbone, an injury also not disclosed in the P58. As with all of the witness statements, both signed and draft, they resulted from the appellant’s instructions to his solicitor, confirmation of which was contained in the materials before the respondent and able to be taken into account in the formation of his views as to the loss of confidence in the appellant as a police officer.
80 The appellant also commented in the witness statement, on his move to Australia at the end of 2013. He referred to his visa application to travel to Australia and his appointment with a doctor. This passage in the appellant’s witness statement is to be read with the same passage in earlier drafts of the witness statement, that refer to his appointment with Dr Roberts, leading to the ‘Discharge Letter’ of 14 May 2013, upon which the respondent relied (see RAB p 73, p 81 and p 98). As to Dr Roberts’ statement that the appellant ‘seemed fine and the appellant could do the job of a police officer’, the appellant observed at [59]:
I remember applying for my Visa. During the application process I saw a doctor who commented that I seemed perfectly fine and that I could do the job as a Police Officer. In actual fact I could not lift my left arm out properly to the side at that time, but I answered every question that he asked and I was honest with him with my answers, but I was not going to volunteer that I had some worries about my back or shoulder because I would have been worried that that would hinder the process. However, I did not lie. I answered every question that he asked of me and it was a very basic examination.
81 In the witness statement the appellant also made numerous references to problems that his scapula condition was causing him on the job as a police officer in Western Australia, such as an ability to discharge his firearm from the proper position; an inability to properly drive a police vehicle; an inability to physically handle a suspect and the possibility of his firearm being used against him; his view that his condition would prevent him from working as a police officer past 40 years of age (the appellant was aged 35 years at the time of the witness statement); having to take considerable leave due to the condition; the use of strong painkillers on a regular basis; and the substantial impact of the condition on his daily activities.
82 None of these issues were raised in the P58 or subsequently, with the respondent.
83 In connection with the NHS claim, the appellant’s wife also made a witness statement, which was signed by her on 5 February 2018 (see RAB pp 157-169). In her witness statement, Ms Little referred to the appellant always complaining of back and shoulder pain, since they had met in 2010. Ms Little referred to the appellant ceasing his work as a climbing instructor, at about the end of 2013, because of increased pain and restriction on his movement due to his condition.
84 Ms Little referred to the appellant being worried about his work in the United Kingdom as a police officer and whether he could defend himself if pushed by someone. She also referred to the appellant being in a lot of pain following the surgery on his neck in 2012, and that he was ‘gutted’ that the surgery had not repaired his shoulder.
85 In relation to the appellant’s and Ms Little’s move to Australia, Ms Little referred to the appellant as being prepared to ‘do anything and everything to get through the application process’. She said that he had ‘massive concerns’ about the application to move to Australia, because of his lack of mobility. Ms Little also made a number of statements as to the limitations on the appellant, caused by his shoulder condition, in relation to daily activities. As noted earlier, none of this was referred to by the appellant in the P58.
86 Both the appellant and Ms Little had intimate knowledge of the appellant’s scapula condition and the impact it had on his capacity both at work as a police officer and in his daily living activities. The appointment with Dr Piper concluded with Dr Piper assessing the appellant as ‘suitable’. However, given the appellant’s witness statements in connection with his NHS claim about his lack of candour with Dr Roberts, and his subsequent repudiation of the Discharge Letter, in conjunction with Ms Little’s statement that the appellant had ‘massive concerns’ as to the application process and would do everything and anything to get through the process, it was open for the respondent to approach Dr Piper’s conclusions, in light of the subsequent revelations, with great caution. This is no reflection on Dr Piper.
87 Combined with the fact that the appellant did not disclose any of the significant matters he was obliged to disclose in the P58, in conjunction with what we have just discussed above, enables a conclusion on balance, that it was most likely that the appellant also did not disclose to Dr Piper anything that may have prejudiced her medical assessment of his suitability. Given the significance of the scapula condition for him at the time of his application to join the Police Force, the fact that there was no mention of it at all by Dr Piper is also highly suggestive that the appellant made no mention of it to her.
88 The appellant in his submissions called into question the probative value of the various witness statements, given some were in draft form and it was submitted that it was not clear that they were filed with the Court in connection with his claim. The appellant made reference to the principle in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, and the respondent’s need to be persuaded to a high standard, given the allegations against the appellant. It was suggested that the material relied on by the respondent contained untested allegations and inexact proofs. However, taken as a whole, the material revealed a clear and consistent pattern of the appellant suffering from an irreversible medical condition from a young age, which progressively, especially from about 2012 onwards (contemporaneously with his application to join the Police Force), became worse and negatively impacted on his capacity to perform the duties of a police officer and to undertake daily living activities.
89 Additionally, the respondent, in considering a loss of confidence matter, does not sit as a court. There is no requirement for material before the respondent to be admissible in evidence under the rules of evidence. Material such as the signed witness statements of the appellant and his wife made in late 2012 and in early 2013, along with the other unsigned witness statements, in the context of all of the material before the respondent, which we have carefully considered, are highly probative. They bear upon the fact of the appellant’s undisclosed scapula condition and its impact on the appellant’s work and daily living. But also, as clearly illustrated by his comments on his appointment with Dr Roberts, reflect the appellant’s mindset at the time of his application to join the Police Force, to resist disclosure of anything in relation to his physical health, that may have prejudiced his very strong desire to migrate to Australia and to take up an appointment as a police officer in Western Australia.
90 We also note that the appellant appears to have taken no objection to the signed and draft witness statement material being considered by the respondent, as a part of the loss of confidence process, in his response.
Rehabilitation cost report
91 As part of his NHS claim, the appellant undertook a rehabilitation cost assessment in the United Kingdom on 15 July 2014 with an occupational therapist, Ms Clarke. Ms Clarke prepared a comprehensive report dated 1 September 2014 (see RAB pp 233-315). The report was prepared for the Court and had the purpose of preparing a schedule of costs covering care, transport, aides, equipment and miscellaneous items, in connection with the appellant’s scapula condition. This was based on the appellant’s past, present and future needs.
92 We refer to this assessment and report only in a general sense, for the purpose that Ms Clarke, at various points in her report, noted comments and responses from the appellant as to his scapula condition and the impact that it had on his work and home life. The appellant was somewhat critical of these aspects of the report, and suggested that passages appearing in quotation marks, referring to statements made by the appellant to Ms Clarke, may not be reliable.
93 We do not consider it necessary to go into the detail of each of the passages in Ms Clarke’s report, as they were the subject of oral submissions to the Commission by both the appellant and the respondent. The only observation we make is that there is no apparent reason to disregard the comments attributed to the appellant, where they were consistent with the appellant’s own witness statement, and that of Ms Little, and other material in a similar vein. The report of Ms Clarke in this respect, was able to be considered by the respondent as part of the overall factual matrix and it was open for him to give some weight to it, where it was consistent with other material.
Conclusions on this sub-ground
94 As to this sub-ground, on all of the material, the respondent had reasonable grounds to lose confidence in the appellant’s honesty and integrity. The respondent had a logical and sound basis to do so.
95 As we already have observed, the appellant provided far less than full disclosure of his medical history in his application to join the Police Force. The respondent must be able to rely on complete candour from candidates in the recruitment process. Given the nature and responsibilities of a police officer, and the powers that a police officer may exercise over citizens, the respondent must be able to hold and maintain complete confidence in the integrity and honesty of his officers. As we have mentioned above, despite the suggestion from the appellant in his defence that because of his level of education, his capacity to clearly understand the P58 was limited, we cannot accept that contention.
96 The appellant had by the time of his application been a serving police officer in the United Kingdom for some years. He was responsible for compiling prosecution briefs of evidence. Additionally, as was pointed out by the respondent in his submissions, the appellant had also instructed solicitors in a complex claim for medical negligence, and signed important documents in connection with his claim. It was well open for the respondent to conclude that the completion of the P58, containing relatively simple questions, was a straightforward process and the appellant could not reasonably claim to be unsure as to the requirements it placed on him.
97 As we have also earlier mentioned, at the time that the appellant, either as put by the respondent in his submissions, ‘intentionally or highly negligently omitted any mention of his life changing scapula condition in his part of the P58 or in his consultation with Dr Piper’ (see respondent’s written submissions at [66]), he was presenting a completely different, and irreconcilable picture as a part of his claim against the NHS.
98 It was open for the respondent to conclude, as Ms Little observed in her signed witness statement set out above, that the appellant would do anything to ensure his application was successful. This included later repudiating as inaccurate, the important medical clearance report of Dr Roberts, that was specifically requested by the respondent, and which the appellant must have realised would be relied on by the respondent in his decision to accept his application to join the Police Force.
99 It is not to the point with respect, to say that despite the non-disclosures, the appellant ‘soldiered on’ with his job as a police officer. The lack of honesty and integrity at the stage of the recruitment process, and right up until the completion of the transition Academy Training course, tainted the appellant’s appointment from the very beginning. This lack of honesty and integrity was all the more significant because at the time, the appellant was a serving police officer in the United Kingdom. The respondent should be able to place some weight on this and that what he was being told by a serving officer in another jurisdiction, was truthful and fulsome.
100 On the basis of this first sub ground alone, it was open for the respondent to lose confidence in the appellant.
Ground 1(a)(ii)
Overview
101 To the extent that the ground for removal (ground 2) relied on misrepresentations made by to the respondent when applying to join the Police Force, we refer to and adopt the conclusions we have reached above in relation to ground (a)(i) of the appeal.
102 Whilst in this sub-ground of appeal the appellant asserted that he made no secret of his NHS claim and he ‘regularly made disclosures in relation to the claim’, at no time on the material before the respondent, did the appellant formally advise anyone in authority of this, at the time the claim was being formulated and when it was commenced in April 2015. Making mention of his NHS claim to police officer colleagues on the job from time to time, did not constitute formal disclosure of it to the respondent. We accept the respondent’s contentions that on the materials, the first time that the NHS claim came to light, was when Acting Sergeant McCallum reported to her superior officer, a conversation that she had with the appellant in late 2018.
103 As we have noted above in relation to ground 1(a)(i), it was not until November 2018 that the appellant’s superiors became aware of the NHS claim, some years after it had been commenced and only shortly before the appellant received the settlement sum in connection with his claim.
NHS non-disclosures
104 The gravamen of the appellant’s submissions in relation to the NHS claim, and the alleged non-disclosure asserted by the respondent, was that his entire case in his NHS claim was predicated on his future prognosis and his declining capacity for both work as a police officer and his ability to perform daily living activities.
105 An important component of the latter was the appellant’s repeated references to his prior occupation as a climbing instructor in the United Kingdom and the fact that he had to give this work up, as he could no longer climb due to his deteriorating scapula condition. This was described on many occasions by the appellant and Ms Little in their various witness statements and in other material, which was before the respondent, as having a major impact on his life, including his relationship with his family in the United Kingdom (see RAB p 89, p 92, pp 95-96, p 101, pp 104-105, pp 158-159, p 164, p 210, pp 241-243, pp 246-247, p 251, p 253, pp 258-259, pp 261-262, p 264, p 267, p 287, p 380, pp 384-385, p 387 and p 395).
106 The appellant reported to Ms Clarke, as a part of her preparation of the appellant’s Rehabilitation Cost Report, that he was not able to climb recreationally, as ‘it’s just not safe’ (see RAB p 243).
107 Given the importance that the appellant placed on his capacity to climb, and the impact on him of no longer being able to do so, in support of his NHS claim, events which occurred in late 2017 assume substantial importance, in terms of the respondent’s continued confidence in the appellant as a police officer. We will turn to consider this issue now.
Mango tree incident
108 At about the time that the appellant was finalising his witness statement in connection with his NHS claim, on 3 September 2017 the appellant was on holiday in Queensland. It was reported in the local media in Port Douglas, that a man (there was no dispute it was the appellant), was stranded eight metres up a mango tree, and had injured himself attempting to retrieve mangoes. The Queensland Ambulance Service attended the incident, and treated the appellant who had sustained a dislocation of his right shoulder. It was reported by the Queensland Ambulance Service that the appellant was in extreme pain. It was also reported in the local media, that the extraction of the appellant from the tree took in excess of one hour. The appellant was transported to hospital for treatment (see RAB pp 406-414).
109 Not long after that incident, in January 2018, when finalising matters for the appellant’s NHS claim, the appellant’s solicitor wrote to the appellant on 26 January 2018 and enclosed a document entitled ‘Chronology/Summary of Care’ (see RAB p 420 and pp 422-431). In the email from the solicitor, she requested the appellant to review the chronology and to let her know if it was in order and if there was anything missing. In particular, the solicitor noted an entry on 5 October 2017 in relation to an x-ray and a ‘USS of right rotator cuff’ (see RAB p 431). The solicitor asked for more information as to this entry.
110 There is no reference to the mango tree incident in the appellant’s signed February 2018 witness statement. Nor is there any reference to it in Ms Little’s signed February 2018 witness statement. Both the appellant and Ms Little refer to the appellant dislocating his right shoulder when tripping over at their home. Both refer to Ms Little resetting the dislocated shoulder and that Ms Little is a paramedic (see RAB p 109 and p 165). Both of them said that it occurred ‘about three months ago’ and ‘a few months ago’ respectively. The appellant did make mention in June 2018 of dislocating his shoulder while on holiday in an email to his supervising officer (see RAB p 495).
111 It was argued by the respondent that there could be little possibility of the appellant dislocating his right shoulder on two occasions, in close proximity to one another both in Queensland and at home. This is because on 3 June 2018, the appellant again suffered a dislocation of his right shoulder at work when getting out of a moving police vehicle to pursue an offender, when he fell over (see RAB pp 497-498). A consultation by the appellant with an orthopaedic surgeon in relation to that injury, led to a diagnosis by the surgeon of a dislocation of his right shoulder ‘which makes it the second time now’ (see RAB p 498).
112 Regardless of this, neither the appellant nor Ms Little made any mention in their witness statements, to the mango tree incident. This was despite the appellant’s solicitor requesting clarification of the entry in the chronology. As to this, it was submitted by the appellant in his oral submissions that what he may have told his solicitor in relation to this issue was speculative and there is no proof of any deception.
113 However, given the emphasis placed by the appellant in his NHS claim, on the fact that he could no longer engage in climbing activities, as a part of his claim that the surgery on his neck as a child had a major impact on his enjoyment of life, the inference is irresistible, and it was open for the respondent to conclude, that the mango tree incident was deliberately omitted by both the appellant and Ms Little, as it would not have been consistent with the case he was then advancing against the NHS. It was a part of the appellant’s medical history that he was required to submit to the Court, and as to which, he was required to verify as a witness of truth.
114 In our view, this incident alone, which was of significance, as it was at the time of a most important stage of the NHS claim, was sufficient to sustain the respondent’s conclusions that the appellant actively misled the NHS. It is also consistent with contemporaneous statements that the appellant made to fellow officers, of not wanting to do anything to prejudice his claim against the NHS (see RAB p 64). The appellant also demonstrated an attitude to his NHS claim generally, of not wanting to do or say anything that would damage his claim, an example of which were his comments to Acting Sergeant McCallum that we have referred to at [67] above. All of this, taken together, forms a pattern of conduct and behaviour, that was able to be taken into account by the respondent.
115 Accordingly, it is not the case as the appellant contended, that his position concerning both his application to join the Police Force, and his claim against the NHS can be reconciled. The appellant did not just represent to the NHS as to his future medical and physical condition. He made substantial material omissions of then present fact. As to his application to join the Police Force, as we have endeavoured to set out earlier in these reasons, the respondent was plainly not only interested in the appellant’s past and then current medical conditions. His concern was also as to any future implications of past or then current medical conditions. Given the rigours of front line police work, and the respondent’s duty of care, this is entirely understandable and appropriate.
Duty of disclosure
116 A part of the case for the appellant was that it was only from the time he made application to join the Police Force up until the time he commenced duty as a police officer, that he had any obligation to disclose medical and health information. Beyond that, on the appellant’s case, any medical and health information was private and confidential to the appellant and was not required to be disclosed. This issue is separate from the disclosure obligations as a part of the P58 medical assessment process, where we have already concluded that the appellant was neither truthful nor transparent as to those matters.
117 It is doubtful whether a police officer is an employee at common law. A police officer is most likely an officer of the Crown, and is engaged, as such an officer, as a member of a disciplined force of the Crown: The Honourable Minister of Police per Sharkey P at [76]-[100]; per Fielding C at [117]-[118]; per Scott C at [128]-[129].
118 As a result of Amending Act No 58 of 2000 (WA), the Industrial Relations Act 1979 (WA) was amended to add Schedule 3 – Police Officers, the effect of which was to deem a police officer to be both an ‘employee’ and a ‘government officer’ for the purposes of the jurisdiction and powers of the Commission under the IR Act. The clear effect of Schedule 3 was to overcome the doubts expressed by the members of the Full Bench of the Commission as to the common law status of police officers in The Honourable Minister of Police.
119 To the extent that police officers are not employees at common law, then the obligations implied by law to an employee do not extend to a police officer. The most obvious for present purposes is the common law implied duty of fidelity and good faith. This duty, in general terms, obliges an employee to render faithful service to their employer and to not act in a way which is incompatible with maintaining confidence between the employee and the employer: Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 per Dixon and McTiernan JJ at pp 81-82 (see generally I Neil, D Chin and C Parkin The Modern Contract of Employment Third Edition at [6.086]-[6.098]).
120 Both the respondent and the appellant referred to s 20 of the then Occupational Safety and Health Act 1984 (WA). This provision of the OSH Act, which was in effect at the time of the events relevant to this appeal, was part of the general duties of care owed by both employers and employees under the legislation. Notwithstanding the common law position as to police officers, similar to the amendments to the IR Act, by s 3A(4) of the OSH Act, police officers were to be treated as employees of the Crown and the Crown was to be treated as the employer of a police officer. Further, by s 3A(5), a police officer was deemed to be at work, and performing work, regardless of whether they were rostered for duty or not. Section 20 relevantly provided as follows:
20. Duties of employees
(1) An employee shall take reasonable care —
(a) to ensure his or her own safety and health at work; and
(b) to avoid adversely affecting the safety or health of any other person through any act or omission at work.
(2) Without limiting the generality of subsection (1), an employee contravenes that subsection if the employee —
(a) fails to comply, so far as the employee is reasonably able, with instructions given by the employee’s employer for the safety or health of the employee or for the safety or health of other persons; or
(b) fails to use such protective clothing and equipment as is provided, or provided for, by his or her employer as mentioned in section 19(1)(d) in a manner in which he or she has been properly instructed to use it; or
(c) misuses or damages any equipment provided in the interests of safety or health; or
(d) fails to report forthwith to the employee’s employer —
(i) any situation at the workplace that the employee has reason to believe could constitute a hazard to any person that the employee cannot correct; or
(ii) any injury or harm to health of which he or she is aware that arises in the course of, or in connection with, his or her work.
(3) An employee shall cooperate with the employee’s employer in the carrying out by the employer of the obligations imposed on the employer under this Act.
121 Whilst the appellant argued that s 20 imposed no positive duty on the appellant to disclose his scapula condition, in our view it is not the condition itself that is most relevant for these purposes. It was the impact of that condition on the performance of the appellant’s duties a police officer, that was most material. To his credit, this was accepted by the appellant in his oral submissions when it was put to him in the course of argument.
122 In our view, the obligation imposed by s 20(1) had application to a situation where the appellant was aware that because of his condition, he may not be able to fully perform the responsibilities of a police officer, thereby placing himself and/or other officers at risk. The obligation under s 20(2)(d)(i) to forthwith report any situation at the workplace that could constitute a hazard was, again, one that applied to the situation of the appellant. He was aware of his compromised ability to properly perform the duties of a police officer, but not only failed to report it to the respondent, he actively sought to conceal these hazards.
Conclusions on this sub-ground
123 We do not propose to re-traverse all of the matters raised earlier in these reasons, as to what the appellant himself told the NHS about the impact of his condition and the limitations it imposed on him working as a police officer. By his own words, the appellant stated he could not properly perform inherent aspects of the work of an officer. The fact that he did not have the confidence in his capacity to subdue a suspect, and may have his own firearm drawn on him, was one obvious and potentially serious risk to not only the appellant, but also his fellow officers and the community. In short, other matters raised included:
(a) his inability to use his firearm in the proper position;
(b) ongoing weakness in his left arm and increasing pain and discomfort;
(c) increasing weakness in and the risk of his shoulder breaking;
(d) difficulty in driving a police vehicle; and
(e) the use of strong pain killers for an extended period of time.
124 The appellant himself admitted that he did not make any formal disclosure of these matters to the respondent. As we have mentioned, he went further, and actively sought to conceal his condition from the respondent (see RAB p 244). It was reasonably open for the respondent to lose confidence in the appellant in relation to the issues arising on this sub-ground. On the materials before him, there was a logical and sound basis for the respondent to reach the conclusions that he did.
Ground 1(b)
Overview
125 This sub-ground contended that the appellant had been denied procedural fairness because some issues were raised in the AOR that the appellant was not given an opportunity to respond to. Before turning to these issues however, the AOR should be put in context, in terms of the statutory process set out in the Police Act in relation to loss of confidence removals of police officers.
126 Whilst the removal of members of the Police Force and appeals from removals are dealt with in Part IIB of the Police Act, the procedure in connection with the loss of confidence process is set out in Part VIA of the Police Force Regulations 1979. Once a complaint or other information is received by the respondent, which relates to an officer’s integrity, honesty, competence, performance or conduct, the respondent can appoint a Review Officer to conduct an enquiry into the officer and prepare a written report for the respondent, which is the SOI, along with an Inspection List, of relevant materials gathered and considered by the Review Officer for the purposes of the enquiry and preparation of the SOI. The preparation of a SOI and Inspection List is a precursor to the issuance by the respondent of a NOITR, issued under s 33L of the Police Act, setting out the grounds on which the respondent has lost confidence in the officer’s suitability to continue as a police officer.
127 The relevant officer then may provide a written response to the respondent under s 33L, in relation to the loss of confidence grounds.
128 As a part of that process, under reg 6A07 of the Regulations, the respondent may cause a report to be prepared in relation to an officer’s response. This is the AOR, that was prepared by the Review Officer, of the appellant’s response. The respondent may also, under reg 6A07, decide that further investigation or analysis of a response is required. Additionally, the respondent may identify a further ground(s) for removal under reg 6A08, in which case the officer must be afforded an opportunity to respond within the specified period or such further period as may be approved by the respondent.
129 It is clear from this scheme as set out in the Regulations, read with Part IIB of the Police Act, that the respondent may not depart from the reasons identified in the original NOITR, unless the Regulations have been complied with.
130 Apart from these provisions, on the hearing of an appeal, the Commission may grant leave for either an appellant or the respondent, to produce new evidence under s 33R of the Police Act. If new evidence is adduced by an appellant, it may cause the respondent to reformulate his reasons for removal, which may include additional grounds.
131 Having regard to the scheme set out in the Regulations read with the Police Act, it seems reasonably clear that the only occasion upon which an appellant has a further opportunity to respond to matters in connection with the NOITR, is in the limited circumstance where the respondent, acting under reg 6A08, identifies a further ground(s) for removal. In such cases, the subject officer must be given notice of the further ground, be provided with copies of any relevant documents as to that further ground, and be given an opportunity to provide a response to the further ground. These are the only circumstances identified in the Regulations, where an officer the subject of a loss of confidence process, is to have a further opportunity to respond to grounds of removal. There is no prescribed opportunity for an officer to further respond to an AOR.
132 There is no suggestion on this appeal, that the respondent has sought to rely upon any further ground for removal which would invoke the requirements of the process set out in reg 6A08.
133 In this case an AOR was prepared by the Review Officer on 15 May 2023 (see RAB pp 679-714). Based on the AOR, the Review Officer concluded that it was open for the respondent to continue to have lost confidence in the appellant, based on the first two allegations set out in the NOITR. The third allegation, that the appellant had unreasonably failed to abide by a direction to attend a managerial interview on 13 November 2023, was not proceeded with. Thus, the Review Officer concluded, having reviewed the appellant’s response, that it remained open for the respondent to lose confidence in the appellant based on allegations one and two in the NOITR and the NOR that finally issued. The respondent proceeded accordingly (see RAB pp 811-814).
Delay issue
134 The first point raised by the appellant was a reference in the AOR at [10] (see RAB pp 682-683) as to the delay in the service on the appellant of the NOITR. The NOITR was signed by the respondent on 30 November 2022, but was not served on the appellant until 17 January 2023. The AOR makes reference to the appellant commenting on the delay in the service of the NOITR, and the reason being the appellant’s resistance to him receiving it and also the time of year it was served. The AOR at [10(a)] to [10(e)] then set out the explanation for this delay, which included advice from the respondent’s Health, Welfare and Safety Division to not serve the documents in the leadup to Christmas and over the New Year break.
135 Furthermore, the AOR referred to an attempt to send the documents by registered post on 4 January 2023 which required the appellant’s signature which was returned with the notation ‘Refused to Sign or Accept Delivery’. The AOR then referred to the attendance of an officer at the appellant’s residence on 17 January 2023, where it appeared that the appellant may have been at home to accept service, but the officer was then told that he was not at home. The appellant’s submission was that this reference in the AOR sought to paint him in a poor light as someone evading service and cast aspersions on his credibility.
136 The first point to note is that the asserted delay in service of the NOITR was raised by the appellant at [2] of his response (see RAB p 723). It having been mentioned, it was open for the Review Officer to comment on it in the analysis in the AOR. There can be nothing unusual or inappropriate in that. Secondly, it would appear from the preceding paragraphs and [11] of the AOR, that the impugned comment was a part of the procedural narrative, setting out the brief history of the loss of confidence process. It was not a part of the AOR dealing with the substantive allegations against the appellant. Simply providing an explanation for the six week delay, was in response to the issue being raised by the appellant in the first instance. In our view, it was not a matter that could bear upon the issues to be determined, and whether or not the respondent could continue to have lost confidence based on the two grounds ultimately relied upon.
Clarke report comments
137 The second matter raised appears at [31] of the AOR, dealing with comments made by the appellant to Ms Clarke at his appointment on 15 July 2014. One of those involved a comparison of his work as a police officer in the United Kingdom, compared to working as a police officer in Western Australia. It is noted in the AOR, that the appellant did not refer to the difference between policing in the United Kingdom and in Western Australia, in terms of the types of accoutrements used by officers. In particular, it was noted that the appellant made no reference to the requirement in Western Australia to carry a firearm, to engage in training to use a firearm, and to potentially having to discharge a firearm ‘in an instant’, compared to there being no requirement for him to carry firearms in the United Kingdom. Reference was made to the appellant reporting to Ms Clarke his preexisting medical conditions, and the inability of him to ‘appropriately position his arm to use a firearm’. It was noted that the assessment by Ms Clarke was only nine months after the appellant commenced as a police officer in Western Australia.
138 The appellant contended that the reference to these matters in the AOR carried with it a suggestion that this was inconsistent with his declaration of fitness as a part of his application to join the Police Force. This was contended to be a negative aspersion sought to be cast upon him. It is difficult to see how that contention can be made good. The AOR was simply referring to a question of fact as to the differences in policing between the two jurisdictions. The differences, and the continued inability of the appellant to raise his firearm into the proper firing position, were previously the subject of the investigation and were referred to in the SOI, and were not new matters. There seems nothing further in [31] that added to what was already before the respondent in relation to this issue. The appellant had a fulsome opportunity to deal with all of these issues in his response, which he did.
Police raid
139 The next point related to [36] of the AOR. This referred to the appellant’s comments that he received a commendation in relation to work involving raids where assault rifles and detonators were found, leading to multiple arrests. The paragraph then goes on to refer to documents that indicate that rather than being involved in the raids personally, the appellant provided information to detectives who executed them. It was contended by the appellant that once again, the AOR in this respect, cast aspersions on the appellant and contained an inference that he was not being honest in relation to his claims about his performance.
140 First, as the respondent observed, the Review Officer prefaced her comments by observing that the appellant’s performance was not in issue in the loss of confidence proceedings. However, she then went on in the relevant paragraph to refer to positive observations about the appellant’s performance in his Performance Agreement made in June 2018 and also positive comments about his involvement in the raid referred to. We do not think on any objective view, that the comments in this particular paragraph, could be seen as casting aspersions against the appellant. The other point to note, is that again, the AOR was being responsive to a matter that the appellant himself raised in his response. It is difficult to see that anything in that paragraph could be taken to introduce new questions concerning the integrity and honesty of the appellant.
Lack of supporting evidence
141 A number of paragraphs of the AOR relate to the next point, they being [41], [48], [99], and [136]. These references relate to the AOR comment that the appellant did not provide supporting evidence to confirm his contention that he was open from the beginning with the respondent, about his NHS claim. The complaint of the appellant was that he was not requested to provide any such evidence, and the failure to do so, was not a particular of any allegation against him that he concealed the NHS claim. As to these matters, the appellant submitted that there was no suggestion that the appellant’s failure to provide evidence about these matters, was the basis for an allegation that he concealed the NHS claim from the respondent. In this regard, the appellant referred to the managerial interview with Sergeant Renting where Sergeant Renting referred to it being known amongst the appellant’s fellow officers that the appellant had made such a claim.
142 We will come back to Sergeant Renting shortly below, when dealing with the second basis on which the appellant contended that he had been denied procedural fairness arising from his managerial interview. But as to the broad allegation, as the respondent put to the Commission in his submissions, all the AOR was really doing, in these impugned paragraphs, was noting that despite raising the issue, the appellant had not advanced any documents or other evidence to substantiate his claims. It is not, as the respondent submitted, for the respondent to bolster the appellant’s case for him. He had every opportunity to put whatever submissions he wished to, and supporting material, to the respondent in his response. It was his assertion that the claim against the NHS should have been known of by the respondent and that he had travelled to the United Kingdom in relation to it. The onus was on him to make good those contentions.
Disclosure of NHS claim to respondent
143 The next point emphasised by the appellant related to [96] and [136] of the AOR. These paragraphs referred to the appellant saying that he was open about his NHS claim and whilst accepting that this may have been so, the material before the respondent indicated that it was not until May 2018, five years after he commenced with the Police Force, that the appellant’s then supervisor was informed about his ongoing back pain and pain medication that he was taking. The appellant submitted that in relation to these parts of the AOR, the conclusions stated were at odds with the evidence given by Sergeant Renting in his managerial interview, that he knew about the appellant’s NHS claim.
144 Whilst this was referred to in the AOR at [99], the paragraph went on to say that the fact that Sergeant Renting was aware of the NHS claim, and it may have been known by other colleagues, at least at the Cannington Police Station where the appellant was then based, did not mean that there was any formal report to the respondent about the matter. Furthermore, there are distinctions to be drawn between the appellant raising, on the respondent’s case, for the first time, his ongoing and severe back pain and the need to take very strong painkillers as reported by Acting Sergeant McCallum on the one hand, and the knowledge of his NHS claim. To an extent, whilst they relate to one another, they are separate issues.
Surveillance photographs
145 Finally, is the reference at [137] to the surveillance photographs showing the appellant undertaking physical activity, such as lifting craypots into a boat and carrying other heavy objects. We note that the appellant responded to these matters in his response, which was referred to at [44] of the AOR. The AOR in this particular paragraph, referred to the appellant’s submission that these photographs were evidence that he was fit to perform his duties as a police officer when he joined the Police Force. The counter argument was noted that there could also be evidence that the appellant was dishonest in citing his poor medical health in his NHS claim.
146 The appellant was critical of the AOR at [137], to the extent that reference was made to the appellant undertaking physical activity that was ‘potentially inconsistent’ with the impairment reported in his NHS claim. It was submitted that this statement was unsupported by evidence and that the Review Officer had no basis to make such a suggestion. It was contended that this also sought to further impugn the appellant’s integrity and honesty. In response, the respondent contended that the particular photographs referred to in the AOR and comments about them, were included in the original SOI. The appellant had every opportunity to comment upon them and make submissions for consideration by the respondent.
147 Our views as to this matter are the same in relation to the point discussed at [139] above in that matters were raised in the SOI, and the appellant had ample opportunity to respond. The AOR is not an opportunity for a ‘second bite of the cherry’.
Sergeant Renting interview
148 A number of submissions were made about the managerial investigation interview with Sergeant Renting on 27 April 2023 (see RAB pp 774-802). It was submitted that Sergeant Renting confirmed that the appellant had disclosed his NHS claim and his health condition. Secondly, it was submitted that there were questions put to Sergeant Renting by the investigators, that were in the nature of a fishing expedition and which had nothing to do with the respondent’s ground for removal. Thirdly, a number of matters that were both irrelevant and prejudicial, were raised in the interview and that material was before the respondent.
149 At [97]-[99] the AOR referred to Sergeant Renting’s interview and that he was aware that the appellant had a severed nerve in his shoulder or ‘something by the NHS’. Additionally, quite a few people were aware of this and that the appellant was not hiding it and in Sergeant Renting’s view, the appellant was probably gloating about it a bit. At [98], the AOR refers to Sergeant Renting becoming aware of the severed nerve and the NHS claim at about the same time, some months after he commenced working with the appellant at the Cannington station. This was estimated to be in late 2014.
150 These observations are consistent with the transcript of the managerial interview with Sergeant Renting. These observations in the AOR are not inconsistent with [96]. Sergeant Renting was not the direct supervisor of the appellant at any time. He was a supervisor of another team of police officers that also worked at the Cannington Station. As we have observed earlier in these reasons, mentioning his NHS claim to police officer colleagues in the workplace, is not the same as making a formal report to the respondent, to a person in authority. That formal report, in relation to the appellant’s back pain and pain relief medication, was to Senior Sergeant Hazell, when the matter was raised by Acting Sargeant McCallum in October 2018. This was the first time that Senior Sergeant Hazell had been made aware of the appellant’s back injury and spinal surgery.
151 To the extent that the interview with Sergeant Renting contained other extraneous observations such as whether the appellant drank much alcohol or to excess, whether he was a ‘good bloke’ or not, are irrelevant and there is nothing to suggest in the AOR they played any part in the respondent’s consideration of whether he had lost confidence in the appellant as a police officer.
152 Ultimately however, none of the matters raised in relation to this ground have been demonstrated to have had the capacity to lead to a different outcome, which is the ultimate test of a denial of procedural fairness. At the end of the day, the principal grounds for removal, based upon the appellant’s honesty and integrity, remained unchanged. The respondent maintained this lack of confidence on those two grounds as he had done in the NOITR. Nor in our view, was there anything raised in relation to the various points advanced, upon which, considering all of the material before the respondent, he could reasonably have changed his mind, to uphold an assertion of a denial of procedural fairness.
Ground 2
153 In relation to this ground, relating to the public interest, the appellant repeated his contentions as to ground 1, and ultimately argued that as a successful police officer in the performance of his duties, it was against the public interest for him to be removed. In comparing and contrasting the circumstances of this case with other appeals against removal that have come before the Commission, the appellant contended that in relation to his conduct:
(a) it was not ‘public facing’ and was internal to the Police Force and did not involve any member of the public at all;
(b) was not directed towards any particular person;
(c) from the perspective of the public, even if the respondent’s contentions are made out, the appellant appeared to be and remained an effective police officer (leaving aside his ankle injury and mental health difficulties); and
(d) none of his conduct related to the performance of his duties as a police officer and thus, there could be no basis for members of the public to call into question the upholding of law and order in a fair and just manner.
154 It was contended that on these bases, and having regard to the fact that the respondent has not identified how the public interest in retaining the appellant as a police officer, would be undermined, his removal cannot be supported. On these bases, having regard to s 33Q(4)(b) of the Police Act, the Commission is required to have regard to the public interest and public interest considerations do not support the appellant’s removal in this case. As to s 33Q(4)(a), that being the interests of the appellant, it was submitted that the appellant has been a dedicated and high performing officer committed to public service.
155 It was submitted that removal from the Police Force has a significant impact on the officer and any family, and the appellant has a wife and three children who are partly dependent upon him. Given the appellant’s education level to Year 10 at secondary school, not having a higher level of education or training in another field, and having been a police officer for 15 years, this significantly affects his alternative employment prospects.
156 On behalf of the respondent it was submitted that the effect of the appellant’s submissions in relation to the public interest, requires the respondent to retain a police officer in whom the respondent has lost confidence, based only on the officer’s prior good service. The respondent contended that the public interest element, in s 33Q(4)(b) is underpinned by the maintenance of public confidence in police officers through their integrity, honesty, conduct and performance: Byers v Minister for Corrective Services [2022] WAIRC 00186; (2022) 102 WAIG 252 at [53]. It was also submitted that the effect of the appellant’s submissions, is to place the Commission in the role of the respondent in terms of his management of the Police Force which the Commission has repeatedly said it will not do.
157 As to the submission that the appellant’s conduct, if it was dishonest, was internal and did not involve any member of the public, this contention was rejected by the respondent. It was submitted that the requirement for honesty and integrity, is essential in relation to all aspects of a police officer’s duty. In the present case, the respondent submitted that he could have no confidence in when the appellant was telling the truth or not, in relation to any aspect of the performance of his office, whether it be external or internal. The respondent contrasted the appellant’s circumstances with those in cases such as Polizzi v Commissioner of Police [2014] WAIRC 00302; (2014) 94 WAIG 477.
158 Furthermore, it was submitted by the respondent that having regard to the special nature of the relationship between the respondent and a police officer, it cannot be the case that the respondent be required to keep an officer in the Police Force who is dishonest or lacks integrity, but ‘gets results’. It cannot be the case, on the respondent’s submission, that it is acceptable for an officer to be selective about when to tell the truth, and the expectation is that police officers will always tell the truth.
159 We can deal with this ground of appeal relatively shortly. In our view, it can never be the case that the respondent would be required to retain in the Force, a police officer whom he has found to be dishonest and lacking integrity, because it only related to undertakings and commitments the officer gave to the respondent, rather than members of the public, as to the officer’s lack of honesty and integrity. It cannot be the case, that the essential attributes of honesty and integrity as grounds for loss of confidence and removal of a police officer, can only be operative where they involve members of the public. The respondent must be able to rely upon his officers to at all times be honest and truthful. This is regardless of whether that involves honesty and truthfulness, and the display of integrity either ‘internally’, when engaging with members of the public, or both. As was observed in Byers at [53]:
[53] Finally, the appellant made submissions to the effect that with over 20 years of service as a prison officer, it was in the public interest that his services be retained. The difficulty with this contention is that the respondent, having concluded that he has lost confidence in the appellant as a prison officer, for good cause, he should not be required to retain a prison officer in whom he has properly lost confidence, only because of a lengthy period of service. It is that essential character of maintaining public confidence in prison officers through their integrity, honesty, conduct and standard of performance, which underpins the public interest element, for the purposes of s 107(4)(b) of the Prisons Act.
160 Whilst that matter involved the removal of a prison officer under corresponding provisions of the Prisons Act, s 107(4)(b) of that legislation is in identical terms to s 33Q(4)(d) of the Police Act, and has equal application in the present circumstances. In our opinion, it would simply be untenable if the Commission were to conclude, having considered the respondent’s grounds for removal as being open to him, and that there are sound and logical reasons for the respondent’s decision to remove the appellant from the Police Force, that the appeal should otherwise succeed, because his conduct was a matter internal to the Police Force, and on all appearances to the public, he performed his duties as an effective police officer.
161 The public interest element in s 33Q(4)(b) of the Police Act, requires in (ii) that the special nature of the relationship between the Commissioner of Police and members of the Force is a component of the public interest. That special relationship, as we have observed earlier in these reasons, is underpinned by trust and confidence. The removal of a police officer as a result of dishonesty and/or a lack of integrity, means that trust and confidence has been undermined. The respondent’s submissions that honesty and integrity are matters that inform all parts of a police officer’s duties, is accepted. As we have just mentioned, it informs the confidence underpinning the relationship between the respondent and an officer. This is an integral part of the public interest.
162 It is accepted that the removal of an officer such as the appellant, will have a significant impact upon him. However, in the circumstances of this particular case, those interests cannot outweigh the public interest and the relevant considerations that must be weighed in the balance, such as in the present case. As in Byers, the fact that the appellant had been a police officer for ten years or so in Western Australia, and 15 years in total including service in the United Kingdom, cannot outweigh the basis upon which the respondent lost confidence in the appellant.
Conclusions
163 For all of the foregoing reasons, and despite counsel for the appellant’s attempt to persuade us to the contrary, the appellant has not discharged the burden on him to show that the respondent’s decision to remove him from the Police Force was harsh, oppressive or unfair. Accordingly we would dismiss the appeal.