Who can make an application?
An officer of the Western Australian Police Force can appeal against a decision of the Commissioner of Police:
- to take removal action against the police officer under s 33P of the Police Act 1892 (WA); or
- to retire the police officer on medical grounds under s 33ZI of the Police Act 1892 (WA).
on the ground that the decision was harsh, oppressive or unfair.
Submitting an appeal
To submit an appeal, you must fill in a Form 8C – Notice of Appeal or Referral (Other Matters), and lodge three copies in the Registry of the Commission in person, by online lodgement, email or by post.
The appeal must be filed within 28 days of the date of the decision of the Commissioner of Police.
You are not required to have a representative and can represent yourself in your appeal. For information on representation and representing yourself, please click here.
After you have lodged three copies of your Form 8C, the Commission's Registry will:
- Check the form to make sure it contains all the required information;
- If the form is complete, send a copy with the appeal number and the stamp of the Commission to you for your records; and
- Serve a copy of it on the Commissioner of Police.
What happens next?
The Commissioner of Police is to respond to the notice of appeal by filing a Form 4 - Response (General) within 28 days of receiving the Form 8C.
The Commission may list the appeal for a brief hearing (called 'for mention') to decide on some preliminary issues, including:
- Whether the parties try to resolve the matter in a conciliation; and
- What date the parties are to file three copies of documents it will be relying on in the appeal. Regulations 92 and 94E of the Industrial Relations Commission Regulations 2005 (WA) requires the documents to be filed within 28 days after service on the appellant of the response of the Commissioner of Police, except as otherwise directed by the Commission.
If the matter is not listed for conciliation or remains unresolved after conciliation, the Commission may then list the appeal for hearing.
After the Commissioner of Police files a response, both parties have 28 days to file three copies of every document that was relied upon or utilised during the removal action.
Note that the appellant has at all times the burden of establishing that the decision to take removal action was harsh, oppressive or unfair. The Commissioner of Police does not need to establish that the decision to take removal action was not harsh, oppressive or unfair.
Tendering new evidence
Appellants should note that, generally, the appeal is heard and determined on the basis of the material that was examined and taken into account by the Commissioner of Police at the time they decided to remove the police officer. These will be identified in the Commissioner of Police’s response.
If an appellant wants the Commission to take into account any document or evidence which was not examined and taken into account by the Commissioner of Police, they will need to ask the Commission for permission (called ‘seeking leave’) to tender new evidence. The Police Act 1892 (WA), in s 33R, imposes a number of restrictions limiting the ability of the Commission to accept new evidence in an appeal and an appellant will need to know them.
The appellant can seek leave to tender new evidence by completing a Form 1C - Application (no other specified form) and attaching to it a copy of the new evidence which the appellant is seeking leave to tender.
The Commission is able to decide whether leave should be given only if it is aware of the substance of the new evidence. If the new evidence comes in the form of a document, the Commission is able to assess its content. In case the evidence that is sought to be tendered is the oral evidence of a witness, the Commission needs to be informed of the substance of the new evidence, which can be done by a written statement or affidavit by the witness. Then:
- The Commissioner of Police is given time to reply to the application.
- The application will then be listed for hearing and the Commission will hear the application and decide whether it will be granted.
- If it is granted, the Commission is obliged to then give the Commissioner of Police a reasonable opportunity to consider the new evidence and respond to it. The Commissioner of Police may decide to revoke the removal action or reformulate their reasons for not having confidence in the appellant and tender new evidence without leave of the Commission.
The Commission may uphold the decision of the Commissioner of Police, or, if the Commission decides the decision to take removal action/retire on medical grounds was harsh, oppressive or unfair, order that the removal from office/retirement on medical grounds is to be taken to have always been of no effect and reinstate you.
In circumstances where reinstatement is impracticable, the Commission may order you be compensated, however, that compensation must not exceed the equivalent of 12 months’ of your salary.