APPEAL AGAINST THE DECISION BY THE COMMISSION OF POLICE TO TAKE REMOVAL ACTION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Maria Letizia Jones

APPELLANT

-v-

Commissioner of Police

RESPONDENT

CORAM Chief Commissioner A R Beech

 Commissioner S Wood

 Commissioner S M Mayman

HEARD Tuesday, 28 November 2006, Tuesday, 19 December 2006, Thursday, 8 February 2007, Monday, 12 February 2007, FRIDAY, 30 MARCH 2007

DELIVERED monday, 14 may 2007

FILE NO. APPL 44 OF 2006

CITATION NO. 2007 WAIRC 00440

CatchWords Removal of police officer – Loss of confidence by Commissioner of Police – Whether harsh, oppressive or unfair – Police Act 1892 (WA) s.8, s.33P, s.33U. 

Result Appeal upheld, compensation ordered

Representation 

Appellant Ms M Jones, in person

Respondent Ms D Scaddan, of counsel and with her Ms K Jones

Reasons for Decision

1          CHIEF COMMISSIONER AR BEECH:  This is an appeal under section 33P of the Police Act, 1892 ("Police Act") by Ms Jones against her removal under section 8 of the Police Act on 27 February 2006.  Ms Jones became a police officer on 23 June 1986 and was a Senior Constable at the time of her removal.  Ms Jones' Notice of Appeal was filed in the WAIRC on 24 March 2006.  The WAIRC endeavoured without success to conciliate an agreed resolution of the matter.  On 26 October 2006 the parties were informed that the appeal would be listed for hearing.

The Listing and Hearing of the Appeal

2         The hearing was set for 19 December 2006.  Before that date, Ms Jones sought to tender two lever arch files of documents.  Some of these documents were "new evidence" under section 33R of the Police Act.  Accordingly, the WAIRC convened on 19 December 2006 to decide whether the new evidence would be admitted and published its decision on 20 December 2006 granting leave in part to tender new evidence [2006 WAIRC 05858].

3         Ms Jones represented herself at the hearing on 19 December 2006 and agreed that the appeal could be re-listed for 12 and 13 February 2007 and the WAIRC listed the appeal for those days.  On 23 January 2007 Ms Jones sent advice by email that she would not be able to proceed on those days and on 29 January 2007 sent a formal request for an adjournment.  That request was considered formally by the WAIRC in proceedings on 8 February 2007 and the request was refused.

4         When the appeal came on for hearing on 12 February 2007, Ms Jones sent email advice that she would not be attending.  She indicated that her priority "is to my health and my family foremost (together with other concerns already outlined)".  The options open to the WAIRC as a result of Ms Jones' non-appearance are quite limited.  The WAIRC does not have available to it in an appeal under the Police Act the powers under section 27(1) of the Industrial Relations Act, 1979 ("the Act") to dismiss a matter or refrain from further hearing a matter (see section 33S of the Police Act).  Even if those powers were available it would have been inappropriate to use them on this occasion.  The email did not suggest that Ms Jones no longer wished to proceed with her appeal, nor that she was withdrawing it.  On the contrary, Ms Jones' tendering of the two lever arch files of documents and her attending in person on 19 December 2006 and 8 February 2007 are all consistent with Ms Jones wishing to pursue her appeal.

5         The WAIRC had the power to further adjourn the hearing of Ms Jones' appeal.  However, Ms Jones did not specifically request this in her notification to us, possibly for the reason that her earlier request for an adjournment had been refused.  The WAIRC took a pragmatic view and concluded that, pursuant to section 33Q of the Police Act the WAIRC was obliged to proceed with the appeal.  It has the power to proceed to hear and determine a matter in the absence of a party who has been duly served with notice of the proceedings.  The WAIRC has before it all of the evidence and other documentary material upon which Ms Jones and the Commissioner of Police rely although it does not have the benefit of oral submissions that Ms Jones may have made about the evidence.

6         Further, the WAIRC is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms; it is not bound by any rules of evidence and may inform itself on any matter in such a way as it thinks just (section 26(1)(a) and (b) of the Act, applied by virtue of section 33S of the Police Act).  Ms Jones' non-appearance at the hearing raised essentially only a practical issue of how best to hear the appeal in her absence.  Accordingly, the WAIRC announced that it would hear the appeal and reserve the right to provide Ms Jones with an opportunity to reply in writing to any matters which the WAIRC considered appropriate.

A Further Hearing

7         The WAIRC subsequently invited Ms Jones to respond to the Commissioner of Police's reformulated reasons that Ms Jones' new evidence provided him with an additional ground upon which Ms Jones would have been removed under section 8 of the Police Act.  The additional ground is that it is medical evidence from which he might reasonably have formed the view that Ms Jones is no longer fit for active duty as a police officer and thus unsuitable to remain as a member of the WA Police.  Ms Jones was provided with a copy of the transcript for this purpose.  Ms Jones provided an outline of written submissions on 23 March 2007.  The WAIRC reconvened on 30 March 2007.  At this further hearing Ms Jones also tendered two documents ("Jones 1" and "Jones 2") regarding section 33U(5) of the Police Act.  The Commissioner of Police was given an opportunity to reply.

The Parties' Submissions

8         I now briefly set out the essential positions of the parties.  Pursuant to section 33Q(1)(a) of the Police Act, the WAIRC first heard from the Commissioner of Police regarding the reasons for deciding to take removal action.

The Commissioner of Police's Reasons for Removing Ms Jones

9         The Commissioner of Police's reasons are set out in a 10-page document of 8 February 2006 (CoP doc. 4).  The Commissioner noted that since 6 May 2004, a period of 21 months, Ms Jones had been on paid sick leave.  From 17 December 2004 the Commissioner ceased paying sick leave.  Paid sick leave was then reinstated on 1 January 2005 and ceased again on 27 June 2005.  The Commissioner noted that although in November 2004 Ms Jones, through her solicitor, had said that she needed "another three months on sick leave" to enable her medication to take effect and her psychological issues to resolve to the extent that she could give consideration to a structured return-to-work programme, by 27 June 2005 Ms Jones had had not only the further 3 months on paid sick leave requested but also a further 6 months.

10      The Commissioner considered this was "ample opportunity" for Ms Jones to give consideration to a structured return-to-work programme in line with her undertaking.  The Commissioner's Order and Procedures HR-8.7.2.4 (CoP doc. 45) requires that the employee should return to the work environment as early as possible utilising the maximum mental and physical abilities of which he/she is capable.  The Commissioner of Police considered that Ms Jones intended merely to remain on paid sick leave and had no intention of returning to work.

11      Ms Jones had been directed to attend a Dr McCarthy and did so on three occasions between 30 May and 7 June 2005.  The Commissioner of Police received Dr McCarthy's report on 22 June 2005 (CoP doc. 16; Jones vol. 1, doc. 57) advising that in his view Ms Jones was in fact fit to return to work and could return to work but that Ms Jones had informed Dr McCarthy that she "never wants to return to the Police Force and never wants to work for an institution again".  However, on 16 June 2005, through her solicitor, Ms Jones had advised the Commissioner of Police that she had every intention of returning to work and that the Commissioner of Police should therefore continue to pay her sick leave.

12      The Commissioner of Police noted that he then provided Ms Jones with an opportunity to resolve the issue of her intention or otherwise to return to work, however the Commissioner of Police stated that Ms Jones advised that she did not feel ready to return to work and raised issues about the method of her sick leave calculation and the Commissioner's acceptance or otherwise of her past and present claims as work-related injuries.

13      The Commissioner of Police had ordered Ms Jones to return to work on 24 October 2005.  Ms Jones had not done so but instead submitted another work-related illness/injury form together with a 28-page "supporting statement".  The Commissioner of Police considered that Ms Jones had no intention of returning to work and that when Ms Jones made representations that she did intend to do so, it has been for ulterior motives such as the continuation of sick leave.  Thus, the Commissioner of Police lost confidence in Ms Jones' suitability to be a member of the WA Police having regard to her performance, conduct and integrity.

The Commissioner of Police's Reformulated Reasons

14      In January 2007, in response to the new evidence submitted by Ms Jones, in particular the medical reports by Dr De Felice (24 February 2006, Jones vol. 2, doc. 276) and Dr Terry (1 September 2006, Jones vol. 2, doc. 275) and pursuant to section 33R(8)(a) of the Police Act, the Commissioner of Police reformulated his reasons for not having confidence in Ms Jones' suitability to continue as a member of the WA Police (CoP letter to WAIRC 22 January 2007).

15      In his reformulated reasons, the Commissioner of Police advised that Ms Jones' new evidence provided no insight into why Ms Jones had misrepresented to him that she intended to return to work with the WA Police when she told Dr McCarthy that she never intends to return to work there.  The reports show the doctors' opinions that Ms Jones had little, if any, capacity to return to the WA Police at the relevant time or any time into the future.  They do not show that a continuation of paid sick leave would have led to Ms Jones returning to work.  The medical evidence is, however, medical evidence from which he might reasonably have formed the view that Ms Jones is no longer fit for active duty as a police officer.  Had this new medical evidence been made available to the Commissioner of Police, it was open for him, in addition to his original reasons, to have decided that the appellant was unable to perform as a police officer and thus was unsuitable to remain as a member of the WA Police.  It was open for him to remove Ms Jones under section 8 of the Police Act for that further reason.

16      Ms Scaddan, who appeared for the Commissioner of Police, emphasised that Dr Terry's report contained the opinion that Ms Jones was unfit to return to her former position in the WA Police, and that Dr De Felice stated that Ms Jones will remain permanently unfit to return to work in the WA Police.  This on its own could have provided the Commissioner of Police with a reason for removing Ms Jones on the basis that she is no longer able to perform in her role as a police officer; alternatively, it provides the Commissioner of Police with an additional ground for her removal.

17      Ms Scaddan informed the WAIRC that section 8 is used for the removal of police officers on medical grounds because under the Police Act and the Police Force Regulations 1979 ("Police Force Regulations") it is the only provision that allows for this to happen.  In this context, the words "medical retirement", "retirement on medical grounds" and "removal on medical grounds" are often used interchangeably.  It occurs because the medical reasons mean that a police officer is no longer able to perform in that role.  Ms Scaddan submitted that given that the medical evidence that Ms Jones is no longer able to perform the work of a police officer is the medical evidence supplied by Ms Jones' own general practitioner and a consultant psychiatrist, it would be difficult to see how Ms Jones could oppose her removal on medical grounds.

18      I now briefly set out the position presented by Ms Jones from her documents.

Ms Jones' Appeal Grounds

19      Ms Jones' grounds are contained in clause 20 of her Notice of Appeal.  Clause 20 is written in Ms Jones' handwriting and drafted by her.  It reads more coherently when read as a whole than it does when read as separate, legally drafted, grounds of appeal.  She denies any allegation that she misrepresented herself.  Ms Jones referred to the first dot point in the Commissioner of Police's Notice of Intention to Remove (Jones vol. 1, doc. 45; CoP doc. 12) which referred to a meeting between the Commissioner of Police and Ms Jones on 22 June 2005 where the Commissioner stated "You advised that it was not your intention to return to work".  Ms Jones' document in response to the intention to remove (Jones vol. 1, doc. 1, p.8) states that Ms Jones at no stage stated to the Commissioner of Police that it was not her intention to return to work and she puts her recollection of that meeting.

20      Ms Jones refers to a 2000 work-related claim being approved which was a direct result of her attending Anti-Corruption Commission proceedings.  She makes reference again to her response to the Notice of Intention to Remove.  Ms Jones then refers to a 2004 work-related claim having been lodged by her, part of which was ongoing from the 2000 claim and part resulted from bullying in the workplace, about which no action had been taken by the Commissioner of Police.  Ms Jones notes from May 2004 she was no longer able to cope with the workplace stress.  Ms Jones refers to the Commissioner of Police disregarding sick leave certificates, ceasing her sick pay and then also ceasing her medical benefits under the 2003 Enterprise Bargaining Agreement ("the EBA").

21      Ms Jones then refers to a conference held before a Commissioner of the WAIRC.  It was held at the instigation of the Western Australian Police Union and Ms Jones' circumstances had been one part of the conference proceedings.  Ms Jones states that the proceedings were withdrawn by the Union without her knowledge or consent.  Ms Jones then refers to the Commissioner of Police continuing to cease her pay using a method not in keeping with the EBA entitlements.  She notes the Loss of Confidence document issued to her in October 2005 alleging misrepresentation.  She alleges that the then Commissioner of Police's solicitor (not Ms Scaddan) made serious errors in her note-keeping which were then used against Ms Jones at a "without prejudice" meeting, and that a complaint to the "Legal Practitioner's Complaint Board" should be received by 1 April 2006.  Ms Jones refers to various emails, diary entries and newspaper articles to support her claim of harsh, oppressive and unfair dismissal and states that she also has extended medical evidence to support the issues raised.

22      Ms Jones then notes that her appeal is hurried due to her illness and that she is finding it very difficult to address issues, and she has received conflicting advice from legal representation.  She alleges her condition is a direct result of work-related stress which the Commissioner of Police has neglected to take into account or have appropriately remedied.  Ms Jones alleges that the Commissioner has been negligent in his duty of care and that she had been subject to equal opportunity discrimination, all of which has led to the Loss of Confidence notice being issued.

23      Ms Jones states that she does not have, and has not had in near-on 20 years of service, any criminal, disciplinary or other charges against her and she continues to be in the care of her treating medical practitioners.

24      Ms Jones' appeal grounds contain a common thread relating to her illness and refer to a number of issues she says arise from it.  Some of those issues are not able to be dealt with in this appeal.  For example, the WAIRC in this appeal is not able to deal with whether it was correct or incorrect for the Commissioner of Police to cease paying Ms Jones sick leave; the fact that payment was ceased forms part of the factual background, however the correctness of it having occurred is not of itself a matter for determination.

25      Similarly, Ms Jones' documents go to a wide range of matters.  Many go to matters of background or to matters not directly before us in the appeal.

The Law Applicable to these Appeals

26      Section 8(1) and (2) of the Police Act is as follows:

8. Commissioned and non‑commissioned officers, removal of

(1) The Governor may, from time to time as he shall see fit, remove any commissioned officer of police, and upon any vacancy for a commissioned officer, by death, removal, disability, or otherwise, the Governor may appoint some other fit person to fill the same; and the Commissioner of Police may, from time to time, as he shall think fit, suspend and, subject to the approval of the Minister, remove any non‑commissioned officer or constable; and in case of any vacancy in the Police Force by reason of the death, removal, disability or otherwise of any non‑commissioned officer or constable, the Commissioner of Police may appoint another person to fill such vacancy.

(2) The powers of removal referred to in subsection (1) can be exercised only if the Commissioner of Police has complied with section 33L and that removal action has not been revoked under section 33N(1).

Section 33L(1) is as follows:

 33L. Notice of loss of confidence to be given before removal action is taken

(1) If the Commissioner of Police does not have confidence in a member's suitability to continue as a member, having regard to the member's integrity, honesty, competence, performance or conduct, the Commissioner may give the member a written notice setting out the grounds on which the Commissioner does not have confidence in the member's suitability to continue as a member.

Section 33P(1) is as follows:

33P. Appeal right

(1) A member who has been removed from office by or as a result of removal action taken in accordance with section 33L may appeal to the WAIRC on the ground that the decision of the Commissioner of Police to take removal action relating to the member was harsh, oppressive or unfair.

27      Read together, these provisions state that the power given to the Commissioner of Police to remove Ms Jones can be exercised if the Commissioner of Police does not have confidence in her suitability to continue as a member of the WA Police, having regard to her integrity, honesty, competence, performance or conduct, and if he complies with the requirements of section 33L of the Police Act.  Ms Jones has a right to appeal to the WAIRC on the ground that the decision to remove her was harsh, oppressive or unfair.  Additionally, Ms Jones has at all times the burden of establishing that the decision to take removal action was harsh, oppressive or unfair.

28      On a number of occasions Ms Jones described her appeal as being made on the basis that her removal was unlawful.  I point out that the right to appeal is on the basis that a removal was harsh, oppressive or unfair, not that it was unlawful.  I consider most, if not all, of the many issues to which Ms Jones refers are issues going to why she considers her removal to be harsh, oppressive or unfair and deal with her appeal on that basis.

29      The Commissioner of Police relied significantly upon the reformulated reasons which refer to removal on medical grounds and submitted that it would be difficult to see how Ms Jones could oppose her removal on medical grounds.  However, the right under section 33P of the Police Act given to a police officer to appeal his or her removal does not depend upon the reason for the removal.  It does not distinguish between removal on medical grounds and removal for other reasons.  If a police officer is removed under section 8 of the Police Act, the removal can be harsh, oppressive or unfair.  Whether or not it is will depend on the circumstances of the case.  The fact that the Commissioner of Police now relies also upon the medical evidence that Ms Jones is permanently unfit to return to work as a reason for her removal under section 8 does not mean that her removal cannot be harsh, oppressive or unfair.

Consideration of the Appeal

30      The reasons for the Commissioner of Police's removal are those set out in the Notice of Final Decision (CoP doc. 4) of 8 February 2006 and also the reformulated reason for removal of 22 January 2007.  The reformulated reason for removal based upon the new evidence does not replace the original reasons for the Commissioner of Police's reasons; it is additional to it.  The combined reasons are to be seen as a whole, however Ms Jones' grounds of appeal require some of the matters which originally led the Commissioner of Police to lose confidence in her to be examined. 

31      Ms Jones states that the Commissioner of Police removed her on the basis that she had misrepresented herself and that this is not the case.  Ms Jones refers to her "Response to the Loss of Confidence" document dated 16 December 2005 (Jones vol. 1, doc. 1; CoP doc. 8) where Ms Jones notes that in October 2005 she was issued with a notice from the Commissioner of Police stating that he intended to take removal action against her (Jones vol. 1, doc. 45; CoP doc. 12).  That document does state misrepresentation as a reason for losing confidence in that Ms Jones' failure to return to work, in view of the evidence that she is fit to return to work, reflects that she does not intend to return to work.  It says "[t]herefore, it would appear that you, through your legal representative, by letter dated 16 June 2005, misrepresented to me that you intended to return to work in order to continue receiving paid sick leave, when you, in fact, did not intend to return to work".

32      When dealing with the alleged misrepresentation, Ms Jones speaks in detail of what she believes was either said, or not said, at her meeting with the Commissioner of Police on 22 June 2005.  However, the Commissioner of Police's Notice of Final Decision of 8 February 2006 does not refer to any alleged misrepresentation occurring at that meeting.  Therefore Ms Jones' submissions about the meeting of 22 June 2005 do not address the alleged misrepresentation upon which the Commissioner of Police relied in his decision to remove her.

33      In fact, the Commissioner of Police's Notice of Final Decision refers firstly to a letter on 25 November 2004 from Ms Jones' legal representative requesting a further three months to enable her medication to take effect so that Ms Jones could give consideration to a structured return-to-work programme (CoP doc. 27; Jones vol. 2, doc. 45) from which he concluded she did intend to return to work.  It then refers, in part, to what he understands Ms Jones to have said to Dr McCarthy, and what Ms Jones' legal representative said in writing to the Commissioner of Police shortly thereafter.  The documents before the WAIRC show that Dr McCarthy's report (CoP doc. 16; Jones vol. 1, doc. 57) states in its ninth paragraph:

She informs me that she never wants to return to the Police Force and never wants to work for an institution again.

34       The email from Ms Jones to her solicitor of 23 June 2005 (CoP doc. 47, p.3; Jones vol. 1, doc. 58) refers to this comment by Dr McCarthy and states:

Yes I did tell him I never want to return … Given all the stress and surgery caused and continued stress why would I.

35      I find that Ms Jones did make the statement recorded by Dr McCarthy.  Ms Jones severely criticised Dr McCarthy's report, describing it as a disgrace, and she urged the Commissioner of Police not to rely upon it.  For the purposes of this part of the Commissioner of Police's reasons however, the point is that Ms Jones admits that she did say to Dr McCarthy that she never wanted to return to the WA Police.  Notwithstanding Ms Jones' severe criticism, Dr McCarthy's report accurately recorded her statement to him.

36      Ms Jones made the statement to Dr McCarthy when she met with him on three occasions between 30 May and 7 June 2005.  However, Ms Jones' solicitor wrote to the Commissioner of Police some nine days later on 16 June 2005 saying in part:

Senior Constable Jones does not want to be removed on medical grounds and is hopeful that with ongoing treatment and medication, she will one day return to the Police Service.

(CoP doc. 38; Jones vol. 1, doc. 145)

37      There is thus a direct contradiction between Ms Jones stating that she never wants to return to the WA Police on the one hand and her legal representative on the other saying that Ms Jones is hopeful that with ongoing treatment and medication she will one day return to the WA Police. 

38      Ms Jones' legal representative had asked in November 2004 for an extension of her sick leave for at least another 3 months to enable her medication to take effect so that Ms Jones could give consideration to a structured return-to-work programme, and Ms Jones had received in fact a further 7 months but then stated that she never wants to return to the WA Police.  This, in the opinion of the Commissioner of Police, is direct evidence of a course of conduct of Ms Jones misrepresenting to him that she intended to return to work in order to continue receiving paid sick leave when she did not intend to return to work. 

39      Ms Jones is bound by the actions of her legal representative.  I have not been able to find any statement of Ms Jones that the representation made on her behalf to the Commissioner of Police by her legal representative was incorrect or made without her authority.  I consider the Commissioner of Police is correct to observe that although Ms Jones had the opportunity to say so at the meeting on 22 June 2005, she did not do so and has not done so subsequently.  The Commissioner of Police relies heavily upon this failure in his statement:

I have provided you with a number of opportunities to convince me that, whatever you may have said to Dr McCarthy, you have subsequently changed your mind and do intend to return to work.

(CoP doc. 4, para. 34)

40      When Ms Jones appeared before the WAIRC, she was given a further opportunity to comment on the direct contradiction.  Ms Jones replied that her legal representative "actually did take licence and say that" but thought that a 3 month period was a general rehabilitative term to see whether a person can progress to a graduated return to work (transcript, p.100).  Ms Jones said she had not contradicted what her legal representative had said because Ms Jones had considered it to be reasonable. 

41      The evidence does show an inconsistency between what Ms Jones told Dr McCarthy and what her legal representative then told the Commissioner of Police about whether Ms Jones wanted to return to work.  The inconsistency remains unexplained and Ms Jones' ground of appeal that the Commissioner of Police was wrong to accuse her of misrepresentation is not made out. 

42      The Commissioner of Police did not lose confidence in Ms Jones at that point in time; the misrepresentation merely caused him to cease paying her sick leave (CoP doc. 40; Jones vol. 1, doc. 137).  The nomination of Ms Jones to the Commissioner of Police for loss of confidence occurred over 2 months later on 8 September 2005 and gave two reasons (CoP doc. 14): the first reason given related to the misrepresentation; the second related to Dr McCarthy's opinion that if Ms Jones did return to work it would cause unacceptable disruption.  (This second reason was, apparently, not accepted by the Commissioner of Police and it was not subsequently referred to by him.)  A Review Officer was appointed the next day, 9 September 2005 although his Summary of Investigation was not produced until 26 October 2005 (CoP doc. 13; Jones vol. 1, doc. 48). 

43      Prior to then, on 17 October 2005 the Commissioner of Police directed Ms Jones to return to work on 24 October 2005.  It is significant that he did so because it means that notwithstanding the Commissioner's conclusion in June 2005 that Ms Jones misrepresented to him that she intended to return to work in order to continue receiving paid sick leave when she did not intend to return to work, the Commissioner retained sufficient confidence in Ms Jones 3 to 4 months later to direct her to return to work.  It must be assumed that the Commissioner wanted Ms Jones to return to work as a police officer and was prepared to have her as a member of the WA Police. 

44      It follows that up to 17 October 2005 the Commissioner of Police had not lost confidence in Ms Jones' suitability to be a member of the WA Police having regard to her performance, conduct and integrity.  That point was reached on 26 October 2005 when the Notice of Intention to Remove Ms Jones was signed by him (CoP doc. 12; Jones vol. 1, doc. 45).  He relied in part on Ms Jones' failure to return to work on 24 October 2005 as directed and I now examine this failure to return to work.

Failure to Return to Work as Directed

45      On 17 October 2005 the Commissioner of Police issued a Notice to Ms Jones that she was to resume duty on Monday, 24 October 2005 (CoP doc. 41; Jones vol. 1, doc. 44).  The Notice is endorsed that it was served on 19 October 2005.  On 21 October 2005 Ms Jones advised the WA Police that she was unable to attend for work on 24 October 2005 (Jones vol. 1, doc. 126). Ms Jones did not resume duty as required.

46      It is significant, however, that Ms Jones had a doctor's certificate stating that she was unfit for employment for this period of time (Jones vol. 1, doc. 119; CoP doc. 42).  This certificate is signed by Dr Kay and dated 14 October 2005 and covers the period 14 October to 14 November 2005.  The Commissioner of Police was unaware of this on 17 October 2005 when he directed Ms Jones to return to work and only became aware of it on 25 October 2005 (transcript, p.73) when the certificate was included as part of a 2005 P3B lodged by Ms Jones.  Further, Ms Jones' documents (Jones vol. 1, docs. 33-35) contain monthly sick leave certificates from 17 May 2005 until 14 November 2005 and a further such certificate for the period from 28 November 2005 to 28 January 2006 (Jones vol. 1, doc. 43) all of which taken together show an almost continuous assessment by Dr Kay that Ms Jones was unfit for work between May and November 2005.

47      Ms Jones' documents contain a letter from the Office of the Executive Director of the Western Australian Police dated 19 December 2005 (Jones vol. 2, doc. 297) which states that the certificates from Dr Kay cannot be accepted without further documentation explaining why "the certificates are backdated some 1-3 months".  This statement is accurate for the certificates from 17 May to 17 August 2005, each of which are dated 18 August 2005.  The certificate for 17 September to 17 October 2005 is dated 22 September 2005, a backdating of only 5 days.

48      However, the certificate for 14 October 2005 to 14 November 2005, the period which covers the direction to return to work, is not backdated at all.  There is no information before the WAIRC why the WA Police should not have regarded that certificate as valid.  It conforms to the 1998 "AMA Position Statement" (attached to letter to Ms Jones from WA Police, Jones vol. 2, doc. 297, see para. 9) on certificates certifying illness to which the Office of the Executive Director refers.

49      I conclude therefore that the direction to return to work was issued during a time when there was a valid medical certificate stating that Ms Jones was unfit to return to work.  The Commissioner of Police cannot be validly criticised for directing Ms Jones to report for duty  during a time when there was a valid medical certificate stating that Ms Jones was unfit to return to work because at that time Ms Jones had not forwarded it to the WA Police.  However, the WA Police was aware of the certificate at the time it evaluated Ms Jones' failure to resume duty (CoP doc. 13, p.9, para. 32; Jones vol. 1, doc. 48 and see also Jones vol. 1, doc. 114).

50      Ms Jones also forwarded to the WA Police a Workers Compensation Progress Medical Certificate dated 24 October 2005 from Dr Terry which states "[c]ontinuing stress and depression symptoms in context of unresolved work related issues.  She is not fit to return to her normal work in the foreseeable future" (Jones vol. 1, doc. 125).  The fact of the medical certificate from Dr Kay for 14 October 2005 to 14 November 2005, and the Workers Compensation Progress Medical Certificate dated 24 October 2005 from Dr Terry, is significant.

51      First, it was medical opinion which conflicted with the June 2005 medical report of Dr McCarthy which included the observation that "in a formal psychiatric sense [Ms Jones] is able to return to work…", thus presenting the Commissioner of Police with conflicting medical advice.  This was the situation with which the Commissioner was faced for the period between 30 May 2005 and 7 June 2005 when Dr McCarthy considered that Ms Jones was in a formal sense able to return to work and could return to work if she wished to, although Ms Jones provided medical certificates from Dr Kay covering the same period to say that she was not fit to return to work. 

52      On that occasion, the Commissioner noted that these medical certificates were backdated and signed by Dr Kay on 18 August 2005 (see CoP doc. 4, p.8) and for that reason concluded he was not persuaded that Ms Jones had presented him with medical evidence that persuasively contradicted Dr McCarthy's independent assessment that Ms Jones was able to return to work by 22 June 2005.  On this occasion, however, Dr Kay's medical certificate for 14 October 2005 to 14 November 2005 was not backdated and there is not the same reason to prefer Dr McCarthy's June 2005 report over that certificate.

53      Secondly, the WA Police saw Ms Jones' failure to report for duty as showing that she never intended to return to work even though the fact of the medical certificates showed she was unfit for work on that day.  The memorandum to the Commissioner of Police from the Assistant Commissioner, Corruption, Prevention and Investigation (Jones vol. 1, doc. 47, 25 October 2005) does acknowledge the medical certificate for the period between 14 October to 14 November 2005.  It does not deal with the validity or otherwise of the medical certificate nor its consequence, but comments "[h]owever, it is to be noted that the medical certificate dated 14 October 2005 was not produced until 24 October 2005".   The point of this comment is not clear because 24 October 2005 is the day Ms Jones was to return to work and it seems entirely appropriate to produce it that day.  The memorandum nevertheless includes the failure to return to work at the time and place nominated by the Commissioner of Police as being one of the reasons why there is "now sufficient grounds to proceed with a Commissioner's Loss of Confidence".

54      The Review Officer, writing one day later on 26 October 2005 to the Commissioner of Police (CoP doc. 13; Jones vol. 1, doc. 48, p.10) does not acknowledge the certificates and concludes:

Jones' failure to return to work, in view of the evidence that she was fit to return to work, reflects that she never intended to return to work, which is consistent with Jones' statements regarding her intention made to the Consultant Psychiatrist between 30 May and 7 June 2005 and referred to in the Consultant Psychiatrist's report dated 22 June 2005.  Therefore, it would appear that Jones, through her legal representative, by letter dated 16 June 2005, misrepresented to the Commissioner that she intended to return to work in order to continue receiving paid sick leave when she, in fact, did not intend to return to work.

55      The Notice of Intention to remove is dated the same day, 26 October 2005.  The Notice of Intention does not give weight to the medical certificates for 24 October 2005 being a valid reason for Ms Jones not resuming duty on that day; the Notice of Final Decision merely observes (at p.4, para. 21) that Ms Jones had submitted "another Work Related Illness/Injury Form together with a 28 page 'supporting statement'".

56      However, being unfit to return to work is not the same as being fit to return to work and not intending to do so.  On 24 October 2005, the day Ms Jones was obliged to report for duty as directed, Ms Jones had a medical certificate from Dr Kay dated 14 October 2005 which was valid for one month until 14 November 2005.  That medical certificate directly contradicted the conclusion of Dr McCarthy in June 2005 that Ms Jones' "major depressive disorder has improved sufficiently for her to, if she wishes to, return to work".

57      I conclude that Ms Jones' failure to resume duty as directed was not further evidence of a course of conduct by Ms Jones misrepresenting to the Commissioner of Police that she intended to return to work in order to continue receiving paid sick leave when she did not intend to return to work.  On the face of it, Dr Kay saw Ms Jones some months subsequently to Dr McCarthy, and in closer proximity to the day Ms Jones was required to return to work, and his certificate together with Dr Terry's should have been seen as genuine medical reasons why Ms Jones could not have resumed duty as directed.

58      Therefore, on 26 October 2005 when the Commissioner of Police wrote that he had lost confidence in Ms Jones' suitability to remain as a member of the WA Police (CoP doc. 13; Jones vol. 1, doc. 48), and on 8 February 2006 when the Commissioner of Police decided to remove Ms Jones, the fact that she had not resumed work as directed could not fairly have been held against Ms Jones as an additional reason for the Commissioner to lose confidence in her.

59      In fact it was quite reasonable for Ms Jones not to have returned to work on 25 October 2005 because she was unfit and had valid medical certificates saying she was unfit.  With the benefit of the hindsight given by the new evidence, which is accepted and relied upon by the Commissioner of Police to reformulate his reasons, Ms Jones was quite correct to say in her response to the Commissioner of Police (CoP doc. 8, p.11; Jones vol. 1, doc. 1) that her failure to return to work on 24 October 2005 is not in any way a reflection of her intention not to return to work.

60      The Commissioner of Police did not lose confidence in Ms Jones until October 2005 when she failed to return to work as directed.  Before then, he was prepared to have her continue as a police officer.  He directed her to return to work.  After then, he saw her failure to return to work as an additional example, or perhaps the proof given the Review Officer's report one day earlier, of a course of conduct of Ms Jones misrepresenting to him that she intended to return to work in order to continue receiving paid sick leave when she did not intend to return to work. 

61      I reach the preliminary conclusion that, as the failure to return to work was because Ms Jones actually was unfit to return, and the reasons put forward in the loss of confidence nomination, including the misrepresentation in June 2005, had not themselves caused the Commissioner to lose confidence in Ms Jones' suitability to be a member of the WA Police, Ms Jones' removal for the reasons set out by the Commissioner of Police on 8 February 2006 was harsh and unfair.   

62       However, it is not necessary to reach a concluded view at this point because the removal of Ms Jones is also to be considered in the light of the Commissioner's reformulated reasons that the new evidence tendered by Ms Jones herself (the medical reports by Dr Terry and Dr De Felice previously referred to) is evidence from which he might reasonably have formed the view that Ms Jones is no longer fit for active duty as a police officer and thus unsuitable to remain as a member of the WA Police.

The Reformulated Reasons

63       Ms Scaddan submitted that a police officer cannot continue to claim paid sick leave without an intention to return to work (transcript, p.81) and that police officers who are permanently unfit or can no longer work in this capacity are removed under section 8 on medical grounds because it is the only provision under the Police Act and Police Force Regulations that allows for this to happen (transcript, p.61).  The Commissioner of Police submits in such a circumstance that he has a duty to the WA Police and to the community of WA generally to remove the officer on medical grounds under section 8.  This is the first occasion such a submission has been considered by the WAIRC in an appeal under the Police Act against a removal under section 8.

64       Regulation 1402 of the Police Force Regulations (and clause 44(2) of the EBA) provides that where the Commissioner of Police is of the opinion that a police officer is not fit for further service, he may direct the officer to submit himself to be examined by a medical board; subject to the Police Act, where the medical board reports to the Commissioner that the officer in question is unfit for further active service the Commissioner shall advise the member of the date he will cease duty.  This is effected via section 8 although without the extensive loss-of-confidence process which occurred in this case (see regulation 6A11 of the Police Force Regulations). 

65       The Commissioner of Police argues that the section 8 process is not a penalty but a managerial discretion to ensure the community has police officers of the appropriate standing acting as police officers.  If an officer is unable to fulfil that function, whether due to misconduct or mental and physical illness, the Commissioner has a duty both to the WA Police and the community of WA to act.  I agree in principle with the position of the Commissioner of Police.  However, I suspect that section 8, conditioned as it is by section 33L, may be quite unsuited to this purpose.  Section 33L means that the Commissioner has to lose confidence in a police officer's suitability to continue as a member, having regard to the member's integrity, honesty, competence, performance or conduct.   If a police officer is permanently unfit to return to work as police officer it is difficult to see how that provides grounds to lose confidence in the officer's integrity, or honesty, or competence, or performance or conduct. 

66       In my view, each of those words carries at least suggestions of a police officer performing his or her work in such a way that confidence in them is lost: integrity or honesty is lacking, or there is incompetence or poor performance or misconduct.  It was submitted by Ms Scaddan that in the case of removal for medical grounds, confidence is lost in the officer's performance, or more specifically, the officer's inability to perform (transcript, p.85).  I query whether this interpretation fits comfortably with the requirement in section 8 for the Commissioner of Police to lose confidence in a police officer's performance.  It seems to me, at least initially, that a police officer who is removed only because he or she is permanently unfit to resume duty as a police officer is removed with his or her career intact and their integrity unchallenged. 

67       Further, for employees in industry generally, but not for police officers in WA, there are established systems of workers compensation which are likely to make provision for the circumstances of employees who are permanently unfit to return to work.  Employees generally may have some standing to sue at common law.  We were not advised that any special provision is made for a police officer who is permanently unfit to return to work, only that the Commissioner of Police has a discretion to allow the police officer access to untaken long service leave entitlements; a police officer medically removed may apply for that reason to his or her superannuation fund to access payments pursuant to the fund, however that is not a matter for the Commissioner of Police to grant (transcript, pp.63, 104).  The absence of any provision in section 8 for police officers who are permanently unfit to return to work as a result of work-caused illness or injury is in marked contrast to provisions available to employees generally.

68       I consider the issue worthy of further examination, however the submission by Ms Scaddan was not challenged and in the absence of the point being fully argued, it is not appropriate to take the issue further in this appeal.  Ms Jones was not removed only for medical reasons.  A medical board was never convened.  The facts of this appeal distinguish it from the removal of a police officer following a medical board hearing because in this case there has not been a referral to a medical board: the new evidence of Ms Jones' permanent unfitness to return to duty occurred after her removal had taken effect and the Commissioner of Police did not have the new evidence available to him at the time he made his decision.

69      Ms Jones argues that her removal for medical incapacity was the equivalent of a sacking, with its effect on her future career, her emotions and with social and financial consequences.  (I note in the context of this submission that although Ms Jones was "removed" under section 8, her termination advice notice describes the "cessation type" as "dismissal" (Jones vol. 2, doc. 286).  Whilst not conclusive of itself, this does give some support to Ms Jones' submission.)  She submits that the Commissioner of Police should take responsibility for the cause of her workplace illness.

70       In response to a specific question put to her in the hearing Ms Jones, very properly, recognised that there must at some point be an avenue for an employer to medically retire someone in a fair and just way including considering rehabilitation, depending upon whether it is work related or non-work related (transcript, p.99).  Ms Jones' comment is consistent with the position in industry generally where the decided cases appear to regard the general comments made in the 1970 decision of the Industrial Relations Commission of South Australia in Kyriakopoulos v. James Hardie & Company Pty Ltd (1970) 38 SAIR 91 at 103 as helpful.  There, Olsson J dealt with an employee who had been dismissed when a medical condition meant that he could not perform his normal work and stated:

1. that an employee dismissed by the employer would only succeed in showing that the dismissal was unfair if it could be shown that the employee is, or will in the reasonably near future on the balance of probabilities be able adequately and fully to discharge all of the duties of his former position;
2. that the period elapsing from the time of injury to the time of recovery must, in all of the circumstances be reasonable (a period which must differ greatly according to all of the circumstances including the length of the employee's service, the size and nature of the employer's business, and its ability to make reasonable temporary arrangements to carry on its operations in the absence of the employee);
3. that the past employment history of the employee viewed from all aspects is a consideration of what is just in all of the circumstances;
4. that the conduct of an employee in relation to his efforts to rehabilitate himself and to place himself in a position to resume his former duties at the earliest possible moment also constitutes a relevant circumstance.

71       This decision was endorsed by Fielding C of this Commission in Deborah Gay Batchelar v Skybus (1983) 63 WAIG 2244 when he dismissed a claim of unfair dismissal by Ms Batchelar who, after 3 months' employment as a bus driver injured her knee sufficiently to prevent her operating the controls of a bus.  Upon her return to work some 6 months later, but still unable to drive a bus, she was dismissed because there was not enough alternate work for her to do.  In dismissing Ms Batchelar's claim that her dismissal was unfair, Fielding C stated:

An employer is not obliged to keep the former position open indefinitely, but only for a reasonable time.  In considering the question of fairness of otherwise of any dismissal which results in circumstances such as these, consideration should be given to the employee's past service record, and the efforts made to rehabilitate after the injury.

72      The above points, whilst a useful aid for analysis, are not directly applicable here because the circumstances of police officers are not directly comparable to those of employees in industry generally.  Employees in industry generally in WA have had an entitlement to ten days' sick leave per year since that was determined by this Commission in 1979 (The West Australian Shop Assistants and Warehouse Employees Industrial Union of Workers, Perth v. Boans Ltd. & Others (1979) 59 WAIG 1377) and this is reflected in Part 4 Division 2 of the Minimum Conditions of Employment Act, 1993 as 76 hours per fortnight. 

73      However, Ms Jones' entitlement to leave through illness or injury is set out in Part XIII of the Police Force Regulations and clause 40 of the EBA.  The Commissioner of Police may grant a police officer leave of absence of up to 168 days per year in respect of incapacity, and has the discretion to grant a further period (regulation 1304 and see too clause 40(4) of the EBA).  Ms Jones' entitlement to this leave of absence as a part-time employee is on a pro-rata basis (clause 19(9) of the EBA).  Applications for leave are to be supported by a medical certificate. 

74       What then were Ms Jones' circumstances?  Ms Jones, in her written submission of 23 March 2007, submits that both doctors' reports show evidence of a capacity to return to work even at this time.  However, I do not agree with her submission: the references to which Ms Jones then refers do not show a capacity to return, or rehabilitate into, the WA Police.  Dr Terry's statements at paragraphs 2, 3 and 6, to my mind, are statements that Ms Jones should not perform any work for the WA Police.  Therefore, any reference in Dr Terry's report about a returning to work "in some capacity" is a reference to her working elsewhere.  Dr De Felice's report at page 7 states that Ms Jones will remain permanently unfit to work in the WA Police however she may be able at some point to regain a work capacity for "alternate occupations".  The statements within both doctors' reports refer to future possibilities of Ms Jones re-entering the workforce generally.  Both doctors conclude that Ms Jones remains permanently unfit to return to the WA Police and I accept that evidence. 

75       I therefore conclude that, to the extent that the four propositions from the Kyriakopoulos decision referred to previously provide at least some guide, the first two are not made out in Ms Jones' case.

76      As to the third proposition, there is no submission as such that Ms Jones was other than a valued member of the WA Police other than in relation to the misrepresentation.  Her evidence before the WAIRC contain some character references, some from police officers, which speak positively of her good character, even if they do not speak of the precise circumstances of her removal (Jones vol. 1, docs. 12-25).  These should be given some weight in the overall assessment of Ms Jones' appeal.  In September 2004 she received a Certificate of Appreciation from the Commissioner of Police for her work in the mentoring programme (Jones vol. 2, doc. 210).

77      Ms Jones was on secondment to the Health and Welfare Branch.  She was working part time.  Ms Jones commenced paid sick leave on 6 May 2004 and was paid until June 2005 (with the interruption referred to above when the Commissioner ceased paying her and then resumed paying her), a period of approximately 12 to 13 months.  Ms Jones had therefore received paid sick leave well in excess of the annual entitlement of an employee in industry generally.  The Commissioner of Police noted she had 399 days of paid sick leave between 6 May 2004 and 9 June 2005 (CoP doc. 37; Jones vol. 1, doc. 149).  Ms Jones disputes the method of calculation, nevertheless she has received well in excess of the annual entitlement of an employee in industry generally.  Upon her termination she was paid her outstanding entitlements to untaken long service leave, annual leave and an amount called "Weekly leave pre 83<55".  All the payments totalled $4,891.00 (Jones vol. 2, doc. 286).

78       In relation to the issue of rehabilitation referred to in the fourth proposition of Kyriakopoulos, I am not aware of any steps taken by Ms Jones herself to place her in a position to resume her former duties once she commenced her sick leave in June 2004.  Given her statement to Dr McCarthy, and then her documented illness I would be surprised if she had taken any such steps.  Ms Jones had sought study leave assistance in February 2004 for postgraduate studies in Naturopathy (Jones vol. 2, doc. 254) although this was refused (Jones vol. 2, doc. 229) and it is not apparent that she sought the study leave to assist her return to work. 

79      Ms Jones submits that the Commissioner of Police has not taken responsibility for the cause of her workplace injury/illness in the first instance (Jones Outline of Submissions 23 March 2007 p.3).   However, this rather general statement is not entirely accurate.  In 2000, Ms Jones lodged a P3B which is a Work Related Illness/Injury report (Jones vol. 1, docs. 37, 38).  This claim was approved and treated as work-related by the Commissioner of Police in that Ms Jones' medical expenses were paid up front (transcript, p.111; and see letter to Ms Jones from WA Police, Jones vol. 2, doc. 297) and is not related to whether Ms Jones receives paid sick leave (transcript, p.112).

80      On 21 November 2004 Ms Jones submitted a further P3B (Jones vol. 1, doc. 36).  In it, Ms Jones referred both to the same circumstances that she had referred in her P3B 2000, and in addition raised accusations of workplace bullying whilst she was working at the Health and Welfare Branch.  The material before us indicates that Ms Jones did not supply any details of the alleged bullying, other than in general terms: "various times and dates between 2001-2004".  In her oral submissions to the WAIRC, Ms Jones stated that she had not supplied further details because these would have been given to the Director of the Health and Welfare Branch whom Ms Jones identified as the person doing the bullying.  Ms Jones has criticised the Commissioner of Police for not investigating the bullying and thus not taking steps to assist Ms Jones to return to the workplace however by not supplying those details, she did not give the Commissioner of Police the ability to do so. 

81      The Commissioner of Police addressed this issue comprehensively in paragraph 30 of the Notice of Final Decision.  The Commissioner considered relevant that Ms Jones only raised the issue of bullying when the Commissioner of Police informed her he intended to cease sick leave in November 2004.  He notes that on three occasions, 30 December 2004, 24 March 2005 and 22 June 2005, Ms Jones was asked to provide more detail and that she had failed to respond each time.  The Commissioner concluded therefore that if an allegation of bullying remained unresolved, it was because Ms Jones herself had failed to progress the complaint beyond a most generalised allegation.

82      On a consideration of the material before the WAIRC, particularly Ms Jones' statement to us regarding her refusal to provide more details because of her concern about the person to whom these details would be given, does not show that the Commissioner of Police is incorrect in his conclusions.  The allegation of bullying is not of itself a matter for the WAIRC to consider and  I note that Ms Jones' appeal grounds have not directed our attention to any specific examples of the bullying to which she refers.  Some documents before the WAIRC indicate that Ms Jones regarded the direction in July 2004 that she attend an occupational physician nominated by the WA Police, Dr Suthers to be an example of bullying: the handwritten note (CoP doc. 9; Jones vol. 1, doc. 50, re point 5) says that the direction to attend Dr Suthers was after some ten days' paid sick leave and was a bullying tactic.  The direction at Jones vol. 2, doc. 218 (CoP doc. 20) is dated 3 July 2004.  (The stamped service date of 3 June 2004 (one month earlier) does not appear accurate when compared with Australia Post's delivery confirmation of 4 July 2004.)  That is a period almost two months after, not ten days after, Ms Jones commenced paid sick leave.  Further, the email from the Manager, Health and Welfare Branch (Jones vol. 2, doc. 212) suggests that an appointment is usually made after one month's absence.  I am not persuaded that the direction of 3 July 2004 is an example of bullying.  I am unable to conclude that Ms Jones has shown that the Commissioner of Police failed to investigate the allegation of bullying in these circumstances and that part of her grounds is not made out. 

83      Ms Jones was advised of the need for her to supply more details in relation to the 2004 and 2005 P3Bs to enable the WA Police to assess them (Jones vol. 2, doc. 297).  In the absence of her supplying those additional details I do not think she has demonstrated to the WAIRC that the Commissioner of Police has failed to take responsibility for the cause of her workplace injury/illness in the first instance. 

Conclusion

84       Section 33Q(4) states:

(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.

85       As to the interests of Ms Jones, she has been removed from a near on 20 year career with the WA Police.  Ms Jones has shown that, to the extent that her removal occurred because she was able to return to work but refused to do so, her removal was harsh and unfair.  Given all of the medical evidence, it cannot be fairly said that Ms Jones was abusing the sick leave system by falsely claiming she was unfit to return to duty.  Ms Jones was removed, in part, for an invalid reason. 

86       Ms Jones has not shown that her removal on medical grounds (the reformulated reasons) was unfair of itself given that she has not shown that she will in the near future on the balance of probabilities be able to return for duty.  I am satisfied that the evidence overall shows that Ms Jones would have eventually been removed on medical grounds.  However, removal on medical grounds does not call the police officer's integrity, honesty, competence, or conduct into question.  At most, it is based upon an inability to perform the duties because of illness or injury.  Ms Jones' removal unfairly called her integrity or honesty into question. 

87       In considering the public interest, I note that Ms Jones has not committed an act of misconduct or dishonesty.  Her work, when she performed it, has not been shown to be below standard.  I do not consider it likely that the public confidence in a particular police officer is lessened if that police officer is on long-term sick leave for work-related reasons.

88       I accept that there is a special nature in the relationship between the Commissioner of Police and a police officer.  In the case of Ms Jones, and putting the direct inconsistency between the statement made to Dr McCarthy on the one hand, and to the Commissioner of Police on the other in June 2005 at its highest, the Commissioner of Police nevertheless directed Ms Jones to return to work.  The special relationship, even if had been strained sufficiently to cause paid sick leave to be ceased and a nomination for loss of confidence, had not broken down at that point.

89       I conclude that Ms Jones' has discharged the onus on her to show that her removal was harsh and unfair towards her to the extent that she was removed because she was believed to be able to return to duty when in fact she was unfit to return to duty.  The reformulated reason now relied upon by the Commissioner of Police did not replace his original reasons for removal and did not undo the harshness or unfairness to her of that removal although it shows that Ms Jones would at some time be removed on medical grounds.  The removal would have happened at some point in time, but not because of misrepresentation.  

Remedy

90       Section 33U provides the framework for the relief which is to be considered.  Ms Jones submitted (document "Jones 2" submitted 30 March 2007) that her removal should be ordered to have always been of no effect.  Even if the position occupied by Ms Jones at the time of her removal is currently vacant, I do not consider it is practicable to make such an order given the later medical evidence from her own doctors that Ms Jones is permanently unfit to return to work as a police officer.  Certainly there is no definite evidence before the WAIRC from Ms Jones that there is another suitable vacant position in the WA Police.  I can see no prospect of the Commissioner being able to give police work to Ms Jones and the Commissioner of Police has a valid interest, and a duty, to ensure police officers perform their duties.  Accordingly, such an order would be impracticable.

91       I therefore turn to consider what compensation may be ordered.  Given Ms Jones' document "Jones 1" (submitted 30 March 2007) where 42 headings are listed as "Loss – (from 1994 to 2007)" and 26 headings are listed as "Injury – (from 1994 to 2007)", it is important to point out that any compensation ordered can only be for loss or injury caused by the removal.  As Ms Scaddan was at pains to point out in the written reply to this document (letter to WAIRC received 4 April 2007), and correctly so, contrary to the headings in Ms Jones' document, this appeal is a limited appeal: it is against her removal.  It is not, and cannot be, a vehicle for Ms Jones to ask the WAIRC to compensate her for the wrongs she alleges were done to her between 1994 and 2007.

92       Ms Jones is required to establish the loss caused by her removal, and also the injury caused by her removal, on the balance of probabilities.  Obviously, if no loss or injury caused by her removal is established, then there is nothing to compensate.

93       "Loss" will include, but is not limited to, actual loss of salary or wage, loss of benefits or other amounts which would have been earned, paid to or received by an employee but for the removal.  Loss occurs where an employee is deprived of something to which he or she was lawfully entitled (Epath WA Pty Ltd v Ihann Adriansz [2003] WASCA 175; (2003) 83 WAIG 3048 per Scott J at [20]).  "Injury" is a general word which embraces not the loss but the actual harm done to the employee by the unfair dismissal (as the President of the WAIRC noted in Capewell v Cadbury Schweppes (1997) 78 WAIG 299 at 303).  It comprehends in itself all manner of wrongs and can include such things as loss of reputation, compensation for injury, humiliation and nervous shock but is not limited to those categories. 

94       Ms Jones was on leave without pay and thus not receiving any payment from the Commissioner of Police at the time of her removal.  Even if the WAIRC did order that Ms Jones' removal was of no effect, it would merely put her back into the position she was in February 2006 when she was not receiving paid sick leave.  There is therefore no loss caused by the removal of wages, or of paid sick leave, to which Ms Jones is entitled for which compensation may now be ordered. 

95       Ms Jones' document refers to "loss of pay increase as per new EBA 2006" and "loss of EBA 2003 July 2005 increase".  These are not losses caused by her removal; they might be losses caused by decision of the Commissioner of Police in June 2005 to cease paying sick leave, but are not losses caused by her removal.  She refers to medical and hospital accounts "that weren't paid some pre and post dismissal" however the evidence does not show that these accounts would have been paid by the Commissioner of Police even if the removal had not occurred.  Ms Jones was paid her outstanding leave entitlements.  

96       As Ms Scaddan pointed out (transcript, p.102) the Commissioner of Police did not have the benefit of the two medical reports of doctors De Felice and Terry when he made the decision to remove Ms Jones.  There is therefore an element of the hypothetical in this situation when considering what the Commissioner of Police would have done had the reports been available.  We are told that where a police officer presents medical evidence that they are unfit for future service, the Commissioner may elect to leave aside issues of loss of confidence for misconduct and the option to medically retire is explored (transcript, p.103).  It appears customary that pay is reinstated whilst the medical retirement process is progressed, given the suggestion to do so at the foot of the memorandum to the Commissioner of Police of 10 November 2004 when it was recommended that no further extension of paid leave be given to Ms Jones (Jones vol. 1, doc. 51).  If this had happened in October 2005, the removal process and the removal deprived Ms Jones of the opportunity in October 2005 to apply for paid sick leave on the basis of her medical certificates while the Commissioner of Police would be investigating the option to medically retire her.  The loss that flows from the unfair removal is the chance of receiving paid sick leave to which she was either entitled under Part III of the Police Force Regulations and clause 40 of the EBA, or at the discretion of the Commissioner of Police. 

97       The justification for the removal of Ms Jones on medical grounds is based upon the two doctors' reports already referred to.  We are informed that usually two doctors' reports are presented (transcript, p.103).  The latter of the two, Dr Terry's report, is dated 1 September 2006 and therefore by that date both reports were available, even if the Commissioner of Police was not aware of them by 1 September 2006.

98       Had Ms Jones been removed on the basis of these two doctors' reports, the removal would not have occurred at least until 1 September 2006, or shortly thereafter.  The period between 25 October 2005, when Ms Jones produced the medical certificates stating that she was unfit to return to duty, and 1 September 2006 is a period when, if Ms Jones had been either at work, or receiving sick leave, she could have received a salary of approximately $23,600 (using the "Cessation Salary" of $1,181.58 per fortnight in Jones vol 2, doc. 286).  It is not a precise mathematical calculation of what she would in fact have received. 

99       Regard, however, should be had to the principles set out by Deane, Gaudron and McHugh JJ in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 643 where their Honours explained that when assessing future or hypothetical events, a court is to assess the degree of probability that an event would have occurred, or might occur and adjust its award to reflect the degree of probability (per Smith C in James Barrett v 6PR Southern Cross Radio Pty Ltd [2001] WAIRC 03785; (2001) 81 WAIG 2768 at [29], citing Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 350 – 353 and 355).  Unless the chance is so low as to be regarded as speculative or so high as to be practically certain, the WAIRC will take that chance into account in assessing the loss.

100    Given the commencement of the Loss of Confidence process, whether the Commissioner of Police would have re-commenced paid sick leave payments if the medical certificates of October 2005 had been seen as showing that Ms Jones was in fact unfit to return to work will not be known.   In the sense that section 8 is not a penalty, and because the Commissioner of Police had re-commenced paid sick leave in Ms Jones' case previously in January 2005 with the commencement of the new calendar year (see Jones vol. 1, docs. 181, 183), I suspect there is a good probability that Ms Jones' sick leave payments would have been recommenced while the option to medically retire was explored.  I assess that probability at 70% and apply a discount of 30% to the figure of $23,600.  This produces a figure of $16,500 as the loss caused by the removal.

101    In relation to injury, Ms Jones' removal occurred on 27 February 2006, however the removal process commenced with the service upon her of the loss of confidence letter on 26 October 2005 (CoP doc. 12; Jones vol. 1, doc. 45).  The assessment of injury caused by the removal includes the process of the removal.  I turn to consider what evidence there is that Ms Jones suffered injury caused by the removal, including by the process of the removal.

102    The majority of Ms Jones' evidence, as contained in the two lever arch files, are documents which pre-date her removal, and therefore do not deal with injury caused by the removal.  However Dr De Felice's medical report is dated 24 February 2006, some 4 months after the removal process commenced.  Dr Terry's medical report is dated 1 September 2006, some 6 months after the removal occurred.  These reports are therefore relevant to the issue of injury.  They are the reports now relied upon by the Commissioner of Police to reformulate his reasons for Ms Jones' removal and I do not understand them to be challenged.

103    Dr De Felice himself notes (at page 5) that Ms Jones reported that although she had started to feel better from September 2004, and that there had been various ups and downs "particularly of late with the various developments with having been served with the 'notice to resume duty' and 'loss of confidence notice'", Ms Jones was "30-40% of her usual self".  I take the paragraph which follows this quotation to be similarly relevant but choose not to quote it out of respect for Ms Jones' privacy.  The second paragraph of page 7 refers to "the ongoing stressor of further conflict with the WA Police".  On page 8 paragraph (9) is a reference to the adversarial nature of the process now perpetuating her symptoms.  She will be left with the grief at the loss of her career and the sense of not being able to contribute.  I consider the reference to "ongoing stressor" he refers to indicates that it is part of the future treatment on page 9.

104    From Dr Terry's report, I consider points 5 and 7, together with the fact that his attached notes for at least 24/05/06, 08/02/06 and 14/11/05 provide evidence of medical consequences caused by the removal process, to be relevant.  Both doctors' reports provide evidence that the removal, and the removal process, had medical consequences for Ms Jones that were separate from her illness; I regard this as establishing that Ms Jones did suffer injury of a medical nature which was caused by the removal.  This should not be a surprising conclusion because the removal process commenced while Ms Jones was covered by a medical certificate and was unfit.

105    I take into account that Ms Jones was removed from a police career of almost 20 years' service with her reputation, good standing and her integrity called into question whereas this would not have been the case if Ms Jones had been removed only because she was permanently unfit to return to work.  This had at least also the consequence that Ms Jones was not able to use the reasons for her removal to support an application for disability insurance in her superannuation fund, as would more usually occur where a police officer was removed after a medical board finding.  The Commissioner of Police's reformulated reasons of 22 January 2007, and now this decision, provide support for such an application.

106    It is difficult to put a value on the medical consequences caused by the removal process and the removal which occurred.  It is recognised by the WAIRC that dismissal in virtually every case will cause the employee disappointment, distress and a host of unpleasant personal feelings; some employees will suffer a greater reaction than others and in the ordinary run of cases no allowance for hurt feelings or distress is made (Lynam v Lataga Pty Ltd [2001] WAIRC 2420; (2001) 81 WAIG 986 at [55]-[57]).  I do not consider the facts of this case are part of the ordinary run of cases given the position in the community of police officers which is difference from that of employees in industry generally.

107    In the case of Barrett v 6PR cited above, an award of $3,000 was ordered to Mr Barrett for the hurt, humiliation and medical assistance necessary for the shock he sustained in his dismissal.  Mr Barrett was a 53 year old Sales Director with approximately 5 years' service.  A sum of $3,000 itself was seen by a Full Bench of the WAIRC in 2005 as being at the low end of the scale (Anthony and Sons Pty Ltd t/a Oceanic Cruises v Peter Fowler (2005) 85 WAIG 1899 at [70]).  I consider the medical evidence in relation to the injury suffered by Ms Jones to indicate an injury caused by the removal greater than the lower end of the scale will compensate. 

108    However, I also take into account the inconsistency between what Ms Jones told Dr McCarthy and what she, through her legal representative, told the Commissioner of Police about whether Ms Jones wanted to return to work.  It is a factor of relevance.  It was a significant event and played a role in all of the events which followed because it was sufficiently serious for the Commissioner of Police to have ceased Ms Jones' paid sick leave.  It is an inconsistency for which Ms Jones must assume the responsibility and it was a factor leading to the nomination of loss of confidence.  Balancing these considerations leads me to conclude that an amount of $8,000 for injury caused by the removal is appropriate. 

109    Section 33U(5) obliges the WAIRC to take into account the extent to which either the Commissioner of Police or Ms Jones herself took steps to reduce the loss or injury caused by the removal.  I note that neither the Commissioner of Police nor Ms Jones herself appear to have taken steps to mitigate the loss suffered by Ms Jones as a result of the removal.  Ms Jones received a termination payment of $4,891 however this appears to be entitlements due on termination; it is not apparent that the Commissioner made any exceptional payment to Ms Jones.  In turn, there is no information before the WAIRC from Ms Jones that she has taken steps to find work in any alternative positions; however, I give a lesser weight to this due in part to Dr De Felice's medical report that Ms Jones is uncompetitive in the open workforce and may remain unfit for work for at least one to two years after the resolution of her medico-legal issues (Jones vol. 2, doc. 276 p.7).  There is no basis on this evidence to reduce the amount of compensation to be ordered.

110    I also note that Ms Jones did not receive a maintenance payment under section 33M.  Neither has Ms Jones received any "redress" under another enactment.

Conclusion.

111    For the above reasons I would therefore make a Declaration and Order in the following terms:

(a)   That the removal of Maria Letizia Jones from the WA Police on 27 February 2006 was harsh and unfair.

(b)   That reinstatement is impracticable.

(c)   That the Commissioner of Police forthwith pay to Maria Letizia Jones the sum of $24,500, subject to the appropriate taxation as required, as compensation for the loss and injury caused by the removal.

112    The WAIRC is unaware of the detail of Ms Jones' superannuation contribution arrangements; it is evident from Ms Jones' comments at paragraph 23 of the "Loss" part of Jones 1 that she herself is not sure how it applies to her.  The WAIRC is therefore not in a position to make any finding on this issue, nor make any order against the Commissioner of Police regarding Ms Jones' superannuation entitlement.

113    COMMISSIONER S WOOD:  I have read in advance the reasons of the Chief Commissioner.  I agree with those reasons and the order proposed and have nothing to add.

114    COMMISSIONER SM MAYMAN:  I agree with the reasons and the order proposed and do not wish to add anything.

115    A draft of the order, called a "Minute of Proposed Order" now issues.  If either Ms Jones or the Commissioner of Police considers that the minute does not properly reflect the decision, they should advise the WAIRC of this and they will be given an opportunity to speak to the minute to correct it accordingly.