APPEAL AGAINST A DECISION OF THE COMMISSIONER OF POLICE TO TAKE REMOVAL ACTION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Gerald Jean-Noel Laurent

APPELLANT

-v-

Commissioner of Police

RESPONDENT

CORAM Chief Commissioner A R Beech

 Commissioner P E Scott

 Commissioner S J Kenner

HEARD WEDNESDAY, 4 FEBRUARY 2009, TUESDAY, 24 FEBRUARY 2009, MONDAY, 30 MARCH 2009, FRIDAY, 24 APRIL 2009, MONDAY, 25 MAY 2009, FRIDAY, 17 JULY 2009

DELIVERED monDAY, 3 aUgust 2009

FILE NO. APPL 135 OF 2008

CITATION NO. 2009 WAIRC 00515

CatchWords Removal of Police Officer – Loss of confidence by Commissioner of Police – What constitutes a further grounds of appeal – Distinction between submissions and grounds of appeal – Power to amend grounds of appeal –Police Act 1892 (WA) s 33P, s 33R, s 33R(3), (4) and (11), s 33S - Industrial Relations Act 1979 (WA) s 27(1)(l)

Result Application granted in part; remainder of application dismissed

Representation 

Appellant Mr G J Laurent, in person

Respondent Ms D P Scaddan, of counsel

Reasons for Decision – Application to amend grounds of appeal

1         This is our unanimous decision.  Mr Laurent is a former police officer who has appealed to the Western Australian Industrial Relations Commission (the WAIRC) his removal from the Western Australian Police Force (the Police).  Since lodging his appeal on 23 December 2008 Mr Laurent has made three applications regarding his appeal.  The first two applications were a request from Mr Laurent for an order to issue requiring the Commissioner of Police to produce 38 documents to him and a request from Mr Laurent for an adjournment of the proceedings.  Both these applications were refused: 2009 WAIRC 00303 and 2009 WAIRC 00301 respectively.  These Reasons for Decision relate to a third application made by him.

2         On 3 June 2009 Mr Laurent sent an email to the WAIRC stating that the document attached to the email is the “Further and Articulate Grounds” he intends to rely upon “at trial”.  Attached to the email is an 82 page document consisting of 631 numbered paragraphs and dated 2 June 2009.  (This document was subsequently revised by Mr Laurent with 85 pages and 636 paragraphs and re-sent to the WAIRC on 18 June 2009 and it is this latter document upon which Mr Laurent relies although it still carries the same date.)  We note that on 24 April 2009 Mr Laurent had sent two emails to the WAIRC to which other documents are attached; the status of these documents is not clear.  The WAIRC listed Mr Laurent’s appeal for mention on 17 July 2009 in order to deal with these issues.

3         Although at the commencement of the hearing, Mr Laurent appeared to indicate that he was applying to substitute the document of 2 June 2009 for the grounds of appeal he lodged on 23 December 2008, he subsequently stated that he wishes to add to his grounds of appeal the matters contained in the document of 2 June 2009.  In making his application, Mr Laurent says that when he lodged his appeal on 23 December 2008 he was not medically capable of summing up, or articulating, the matters that he wished to raise.  This was because of the stress and anxiety he was suffering which, from his submissions, he attributes to injuries and injustices suffered by him in the course of his employment.

4         The Commissioner of Police submitted that the document of 2 June 2009 is more than mere substitution or the provision of additional grounds: it is a new document which goes far beyond the grounds of appeal, although there are some common elements.  Further, the Commissioner of Police says that the document contains matters which go beyond the issues relied upon in the Commissioner of Police’s loss of confidence process and thus do not fall within the scope of this appeal.  The Commissioner of Police also queried the extent to which the WAIRC is able to amend the grounds of appeal, particularly by an amendment of the magnitude of the document of 2 June 2009.  In the view of the Commissioner of Police, the powers made available to the WAIRC under s 27(1)(l) of the Industrial Relations Act, 1979 (WA) (the IR Act), to the extent that they are available by reason of s 33S of the Police Act 1892 (WA) (the Police Act), do not allow the supplanting of the grounds of appeal with a whole new document.

5         It may be helpful to summarise what we consider to be Mr Laurent’s present grounds of appeal.  Mr Laurent’s Form 31 Notice of Appeal of 23 December 2008 has attached to it what Mr Laurent has referred to in these proceedings as “a letter”.  That is probably an accurate description of its layout.  What it should be is a statement by him of the reasons why he considers the decision of the Commissioner of Police to remove him is harsh, oppressive or unfair (which is required by the Form 31 which he completed) and a summary of facts or issues of law relied upon by Mr Laurent, including matters relevant to s 33Q(4) of the Police Act (which is required pursuant to r 90(a)(ii) of the Industrial Relations Commission Regulations 2005).

6         Accordingly, even though the document attached to the Notice of Appeal is set out in the form of a letter, it must be read as setting out the reasons why Mr Laurent believes his removal was harsh, oppressive or unfair.  Those reasons, extracted from the document are, if we understand them correctly, as follows:

1. That with regards to the Northbridge incident, the Commissioner of Police has mistakenly identified Mr Laurent as the person of interest.  (Mr Laurent sets out a statement of facts in relation to the Northbridge incident later in this document.) 

2. That the reasons for Mr Laurent’s removal are totally unfounded to the extent that the Commissioner of Police has been made fully aware that Mr Laurent’s performance was hindered due to injury he sustained whilst carrying out his duties.

3. That since the injury which occurred in 1997, Mr Laurent has received no assistance whatsoever from the Police, was made to feel inadequate by his peers and supervisors, and was constantly harassed because of a pending claim for compensation. 

4. That there are certain reports about Mr Laurent’s conduct and performance which were never bought to his attention during his time as a police officer. 

5. That Mr Laurent feels he has been unfairly dismissed as a result of performance which was caused by injury sustained in carrying out his duties, taking into account pain and suffering, harassment, threats, assaults, discrimination, false statements and reports and vexatious allegations he has had to endure during his tenure as a police officer. 

6. That if Mr Laurent’s performance as a police officer was “substandard” he would not have moved up to the rank of First Class Constable after four years and to the rank of Senior Constable after eight years of dedicated service.  This includes positive accolades from senior police as well as having conducted approximately 250 successful prosecutions.

7         The above are Mr Laurent’s current grounds of appeal.  It is upon those grounds that Mr Laurent will present his case when his appeal is heard and upon which the Commissioner’s answer to that case will be based.

8         We now turn to examine the document of 2 June 2009 which Mr Laurent wishes to add to his grounds of appeal.  It is headed “Appellant’s Issues, Facts And Contention For Dismissal Of Employment”.  The first 22 numbered paragraphs consist of questions.  It should be apparent to Mr Laurent that a question is not a ground of appeal: it is a question, nothing more and nothing less.  It may not even be a question that is relevant to a matter before the WAIRC but it remains a question.  Accordingly, paragraphs 1 to 22 cannot comprise “grounds of appeal” and are irrelevant to his application as indeed are all the other questions elsewhere in the document.

9         Although we regard the document as quite unsuitable for Mr Laurent’s purpose, primarily because it does not identify the grounds he wishes the WAIRC to add to his grounds of appeal, we will now consider it in more detail.

10      The first paragraph that is not a question is under the heading “Facts”.  It is numbered paragraph 23 and it consists of three parts.  The first part is repeated below as Mr Laurent has presented it to the WAIRC:

23.  Medical injuries sustained-work related to Present

1. Mental Alignment.

a. Emanating from the Appellant’s time working at Midland, Mirrabooka and Geraldton Police Station.  This injury is well documented by numerous specialists and others that demonstrate the inability to work effectively due to suffering to post shuttle response, stress, anxiety attacks, heart permutations, depression, blur vision and over suspicious.  Appendix number (1 to 20) ######

11      A number of issues arise from this paragraph.  It refers to “Mental Alignment” but it is not clear from the document nor from any submission made to us on the day by Mr Laurent what is meant by those words.  It says that the injury is well documented by “numerous specialists and others” however there is no documentation attached to the document.  If the documentation to which paragraph 23 refers is contained within the three volumes of lever arch files already before us from the Commissioner of Police, its location within those volumes was not identified to us.  Finally, the paragraph refers to “Appendix number (1 to 20) ######” but there is no Appendix to the document.

12      Paragraph 23, at best from Mr Laurent’s perspective, is simply a statement by him in support of a submission that an injury or injuries meant that he was unable to work effectively.  Paragraph 23 is not evidence in support of the submission; it is just a submission.

13      If, to be somewhat generous towards Mr Laurent, the WAIRC was to find that paragraph 23 seeks to add as a “further and additional ground of appeal” that Mr Laurent suffered a work-related injury that demonstrates his inability to perform his work effectively, then it is not necessary.  This is because Mr Laurent’s current grounds of appeal say:

“The reasons for my removal from the WA Police given by the Commissioner in writing dated 18 November 28 (sic) are totally unfound (sic), to the extent that the Commissioner was made and has been fully aware that my performance as a Police Officer was hindered due to injury I sustained whilst carrying out my duties as a Police Officer.”

14      This is set out earlier in these Reasons as the second ground of Mr Laurent’s appeal.  Therefore, it is already a ground of Mr Laurent’s appeal that his performance as a police officer was hindered due to injury he sustained whilst carrying out his duties.  On that basis, paragraph 23 does not add a further or additional ground; the ground is already in the appeal.

15      The same can be stated for the balance of paragraph 23, which comprises points 2 and 3 headed “Back Injury (severe) dated 21th February 2009” and “Rash Injury” respectively.  In our view, the most that can be said about paragraph 23 as a whole is that it provides the details of what Mr Laurent meant in his Notice of Appeal when he said that his performance as a police officer was hindered due to injury he sustained whilst carrying out his duties as a police officer.  If, for example, the WAIRC or the Commissioner of Police asked to what injuries Mr Laurent was referring in his Notice of Appeal of 23 December 2008, paragraph 23 merely provides the answer. 

16      We add that it is most unlikely that the Commissioner of Police would ask the question because Mr Laurent’s response to the Notice of Intention to Remove (Volume 1 Attachment 1 of the Commissioner of Police’s submissions) states as follows:

“Injuries.

Currently, I am suffering from a number of injuries as a result of WA police's actions.

1. Back Injury – as a result of wrestling, lifting Mark Batka off the ground and falling on top of him February 2004.

2. Heart palpitations as a result of taking extensive medication as a result of WA Police lack of actions and causing to suffer by not reviewing my work place for over a year.

3. Rash Injury – as a result of contracting an injury as a result of the refurbishment at the Geraldton police station.

4. Rash Injury – WA police's interference in my recovery was causing further injury and not being allowed treatment by a well known doctor (my family doctor).

5. Mental Injury (Stress and depression) – torment, harassment and victimisation suffered by senior police.

6. Pneumonia as a result being run down and emotionally drained.

7. Recurrence of rash as a result of stress and being run down.

17      These statements were commented upon in the analysis of response (Volume 1 tab 5) and thus the injuries Mr Laurent refers in his Notice of Appeal of 23 December 2008 are already known, and have been taken into consideration by, the Commissioner of Police.

18      Finally in relation to paragraph 23, we wish to make the point that the statement in it by Mr Laurent that he suffered a work-related injury that demonstrates his inability to perform his work effectively is not evidence that he did suffer that injury, or that it was work-related, or that it demonstrates his inability to work effectively.  It is not evidence and thus it is not a matter that the WAIRC needs to consider under s 33R of the Police Act which provides for new evidence on appeal and which was referred to a number of times by Mr Laurent.  For the same reason, none of the 636 paragraphs in the document of 2 June 2009 are evidence. 

19      Accordingly, to the extent that paragraph 23 can be said to be a ground of appeal, and it is certainly not worded that way, it is not a “further or additional ground” as Mr Laurent suggested because it is a ground which is already in his appeal. 

20      We approach each of the remaining 613 paragraphs on the same basis. 

21      Paragraphs 24 to 49 all provide further detail of the allegation by Mr Laurent that he had a work-related injury that demonstrates his inability to perform his work effectively.  As such, they are not grounds of appeal.  They may well be submissions that Mr Laurent may wish to make in support of his ground of appeal that his “performance was hindered due to injury” but each paragraph is not of itself a ground of appeal.  Paragraphs 50 to 54 add further information regarding the injuries Mr Laurent says that he suffered. 

22      Paragraph 55 is a submission from Mr Laurent for the WAIRC to bear in mind that he is self represented.  The paragraph states, again reproduced exactly as Mr Laurent has presented it:

55. I wish for the WAIRC to consider that the Appellant is self represented, with no finance to afford legal support or being fully conversant with the Industrial Judicial matters and suffering injuries that the Respondent used and couple with criminality to terminated the Appellant’s employment.

This is not a ground of appeal.

23      Paragraph 56 is a repeat of the grounds of appeal attached to Mr Laurent’s Notice of Appeal.

24      Paragraph 57 states that “the Respondent appears to use senior Police to protect himself from litigations, criminality and corruption” and refers to an incident that Mr Laurent relies upon to say that he suffered injury.  Paragraph 57 also refers to Mr Laurent’s belief that there was a “malicious/lack of medical investigation to prolong injury suffered more with a corrupt investigation as a direct result of poor governance and couple with corruption”, it refers to Mr Laurent’s attempt “to investigate the Respondent for corruption” and other matters concluding with an allegation that Mr Laurent then “was subjected to malice and poor governance that exacerbated his injuries for more than 5 years to present”. 

25      This paragraph therefore provides further detail regarding one of the work-related injuries Mr Laurent relies upon that apparently demonstrates his inability to perform his work effectively.  It is not a further or additional ground of appeal.  To the extent that the balance of paragraph 57 refers to “criminality and corruption”, they are issues which are not a matter for this appeal.  If Mr Laurent believes he has evidence of criminality or corruption then he may draw it to the attention of the Corruption and Crime Commission which is the body that is set up to deal with such issues. 

26      Paragraph 57 states that the Commissioner of Police “appears to use senior Police to protect himself from litigations, criminality and corruption”.  As with the previous paragraph where Mr Laurent alleges criminal conduct or corruption on the part of the Police, these are issues he may draw to the attention of the Corruption and Crime Commission. 

27      Paragraph 58 has the heading “Scarborough Matters”.  Subparagraphs (a) to (e) are statements made by Mr Laurent alleging that he was sent to Scarborough to be “set up”.  He makes allegations of what others told him to expect, that he was directed “not to record any staff”, that he was advised that junior staff have a history of “getting other police officers termination” and those same junior staff refused to offer evidence regarding an alleged traffic offence when that evidence would have prevented Mr Laurent from having to defend a speeding allegation offence in court. 

28      What Mr Laurent believed was the reason for being sent to Scarborough, and what others told him is hearsay and can be of no assistance to Mr Laurent in this appeal.  Mr Laurent made no submission to us why it would be of assistance to him and reading the Commissioner’s reasons for deciding to take removal action (Volume 1 tab 1) does not show that the reasons why the Commissioner of Police lost confidence in Mr Laurent depend upon the reason why Mr Laurent was sent to Scarborough.  Similarly, a direction to Mr Laurent “not to record staff”, if indeed it was given, does not provide a ground for showing why the removal of Mr Laurent was unfair.  Similarly, if junior staff did refuse to offer evidence regarding an alleged traffic offence, that is not a ground of appeal.

29      Subparagraph (f) of paragraph 58 refers to Mr Laurent not being conversant with “Custody” due to injury and sick leave.  He also states that this was coupled with “not being allowed any office time during his working time in Scarborough Police Station”.  This may relate to paragraph 181 of the Commissioner of Police’s reasons for deciding to take removal action.  This refers to a report that Mr Laurent had “failed to: identify elements of offences in narratives or Statements of Material Facts in Briefs and IMS Reports; load information into the Custody system correctly or update information not completed…”.  To the extent that Mr Laurent relies upon injury and sick leave taken to argue that the Commissioner of Police’s reliance on the report that he failed to load information into the Custody system correctly or update information not completed, it is already a ground of Mr Laurent’s appeal and paragraph 58(f) is not an additional ground of appeal. 

30      To the extent that paragraph 58(f) also alleges that he was not allowed any office time during his working time at Scarborough Police Station and therefore it was difficult to catch up on administrative duties, this is able to be considered as a further or additional ground of appeal. 

31      The balance of paragraph 58(f) refers to Custody at Geraldton Police Station.  Our reading of the Commissioner of Police’s reasons for Mr Laurent’s removal, particularly between paragraph 224 (when, chronologically, Mr Laurent was transferred to the Geraldton Police Station) to paragraph 242 does not show that the issue of Custody at Geraldton Police Station is an issue in this appeal and it is not relevant. 

32      The next two subparagraphs (numbered 58(g) and (h)) are under the heading “Incident Management System (IMS)”.  Mr Laurent made no submission to us why these could be additional grounds of appeal and it is not apparent to us why they could be.  We do see that IMS was mentioned at paragraphs 235 of the Commissioner of Police’s reasons, where it is mentioned that as a result of Mr Laurent’s poor performance appraisal it was arranged that he commence a six week secondment to develop his knowledge of IMS, and paragraph 240 where Mr Laurent states that he has not been trained by the Police in IMS.  Given that Mr Laurent’s statement that he has not been trained in IMS is already before us, it is not clear how subparagraphs 58(g) and (h) take the matter any further to form a basis for Mr Laurent to show that reliance by the Commissioner of Police on IMS issues relating to Mr Laurent was misplaced. 

33      Paragraph 58(i) is under the heading “Brief case”.  The two sentences provide no means of identifying to what this relates and Mr Laurent made no submission to us about it.  Paragraph 182 of the Commissioner of Police’s reasons for deciding to take removal action notes that Mr Laurent submits poor quality work in Brief preparation, factual information, attention to detail and attention to procedures.  It notes that Mr Laurent is unable to meet time frames to complete work even after being given written examples, without direct supervision and he has had every Brief submitted rejected and requires correctional advice and written assistance.  If paragraph 58(i) does relate to the Commissioner’s paragraph 182, it provides no ground of appeal. 

34      Similarly, paragraphs 58(k) and (l) refer to the Commissioner of Police failing to state that Mr Laurent was mocked and humiliated after advising that Mr Laurent suffered as a result of not having an appropriate chair.  When both subparagraphs are read together it does not suggest a ground of appeal but rather makes a statement relating to a claim regarding discrimination and the Equal Opportunity Commission (EOC) which is referred to in paragraph 58(l). 

35      Paragraph 58(m) is merely a statement by Mr Laurent that he investigated two police officers’ “involvement in a fraud”.  The statement is meaningless in the context of this application.  Similarly, the comments in paragraphs  58(n) and (o) that “the Appellant investigated the Appellant for unlawfully using of Police information for his personal use” is meaningless. 

36      The final paragraph 58(p) merely states that the allegations used by the Commissioner of Police are misconceived and that it is clear that some allegations are false.  This is a statement of such generalised scope as to be meaningless. 

37      Paragraphs 59 to 62, referring to both Midland and Mirrabooka Police Stations, raise issues relating to Mr Laurent’s allegation that he suffered from anxiety stress and injury.  As such these are matters which are already a ground of Mr Laurent’s appeal. 

38      Paragraphs 63 to 65 refer to matters already canvassed by Mr Laurent in paragraphs 58(a) to (e) and suffer from the same defects. 

39      Paragraphs 66 to 68, which relate to “Geraldton” allege poor behaviour and corruption, including “[b]ehaviour such as torturing prisoners in custody”.  These paragraphs attract the same criticism as earlier ones where Mr Laurent attempts to respond to the matters relied upon by the Commissioner of Police by alleging poor conduct on the part of others.  An allegation regarding the torture of prisoners is an extremely serious allegation.  It does not, and cannot, form part of this appeal.  Mr Laurent may draw the allegation to the attention of the Corruption and Crime Commission. 

40      Paragraphs 69 to 75 allege that Mr Laurent was suffering injury which prevented him from responding to the allegations of the Commissioner of Police.  In our view, this does not constitute a ground of appeal as such, but is a statement in support of Mr Laurent’s application to add further and additional grounds to his appeal. 

41      Paragraphs 77 to 78 are said to “provide a description of a number of incidences pertaining to the Commissioner of Police (Respondent) failed to consider prior to losing confidence and terminating the Appellant employment”.  Paragraph 77 then lists matters under the headings of “False charge and prosecution” and paragraph 78 lists matters under the heading “Lack of transparency”.

42      However, and we intend no disrespect to Mr Laurent, many of the sentences are either meaningless or so generalised that their meaning and context is not apparent. 

43      Paragraphs 79 to 126 are a series of questions.  As such they will be disregarded.  We note that paragraph 79 is under the heading “Victimisation”, followed by a further heading in bold capitals: ISSUES and is a question whether “the Appellant have impairment within the meaning of section 4 of the Equal Opportunity Act 1984”.  The whole of paragraphs 79 to 126 appear directed to that question which is not a question which arises in this appeal.  Paragraph 127 is headed “Initial complaint submitted to the E.O.C.” and appears, from a reading of the document to embrace paragraphs 127 to 334.  All these paragraphs appear to relate to something other than Mr Laurent’s appeal in the WAIRC: they refer to reports submitted to the EOC but which do not form part of the document before the WAIRC (for example paragraph 129; paragraph 246); paragraphs 259 and 261 seem to read as though they were written at a time when Mr Laurent was in employment and paragraphs 286 to 334 similarly read as being part of a submission to another place.  Those matters directed to section 4 of the Equal Opportunity Act 1984 are not relevant to this appeal.  To the extent that they relate to matters of illness, it is already a ground of Mr Laurent’s appeal that he suffered illness of injury. 

44      Paragraphs 335 to 349 appear to be submissions directed to the State Administrative Tribunal regarding a failure to comply with its orders which is irrelevant to this appeal. 

45      Subsequent to paragraph 349, the numbering changes.  The changed numbering are paragraphs which relate to the Northbridge incident which is already a ground of appeal: that the Northbridge incident is a case of “mistaken identity”. 

46      Paragraphs 353 to 357 are statements by Mr Laurent which relate to circumstances of his health following the stand down notice and decision to remove him. 

47      Paragraph 358 has a number of subparts and is under the heading “Irrelevance of accusations”.  It commences with a statement by Mr Laurent that “Any allegations made by the Respondent, at a date not in alliance with the above physical and emotion demise, are irrelevant and show the lack of knowledge and insight into the Appellant situation”.  The following paragraphs appear to be statements relating to Mr Laurent’s assessment of his injuries, the taking of sick leave and inability to sit for prolonged periods.  As such, these are statements which relate to an existing ground of appeal and do not provide the basis for further or additional grounds. 

48      Paragraphs 359 and 360 are statements regarding lack of legal support and avoiding bankruptcy.  Paragraph 361 is, again, a submission regarding injuries.  Paragraphs 362 to 365 are statements by Mr Laurent that he was a victim of “assaults, threats, torment, reckless behaviour”.  Mr Laurent’s grounds of appeal in his Notice of Appeal already include “harassment, threats, assaults, discrimination, false statements and reports and vexatious allegations”.  These paragraphs therefore do not provide the basis for further or additional grounds. 

49      Paragraphs 366 to 375 are matters to do with Mr Laurent’s submission that he suffered work-related injuries.  Paragraphs 376 to 391 are questions. 

50      Paragraphs 392 to 480 are matters to do with Mr Laurent’s allegation that he was injured in the course of his employment.  These submissions lead to, from paragraph 481 onwards, a contention that the Commissioner of Police discriminated against and harassed Mr Laurent by failing in his duty of care to provide a safe working environment and a possible breach of some other, but unnamed, legislation.  As already pointed out in these reasons, whether the Commissioner of Police was in breach of provisions of the Equal Opportunity Act 1984, or other legislation, is not part of this appeal. 

51      Paragraphs 486 to 510 are questions and paragraphs 511 to 600 are a repeat of earlier paragraphs.  Paragraphs 601 to 636 are either statements on issues already covered, sometimes repeatedly, in the earlier part of the document, or are questions. 

52      In summary, while it is appreciated that Mr Laurent has prepared the document himself and, as he has reminded the WAIRC on a number of occasions, that he is not legally trained or qualified, the document of 2 June 2009 consists of a jumble of statements and allegations made by Mr Laurent, questions and submissions or comments relating to or forming part of proceedings in the State Administrative Tribunal or the EOC.  The document is not set out in a logical sequence and contains much that is repetitive; for example Mr Laurent’s submissions that he sustained work-related medical injuries are repeated on a number of occasions and paragraphs 511 to 600 appear to be a copy-and-paste of paragraphs 392 to 480.  Some of the sentences within the paragraphs are incomplete or appear to have words missing.

53      The document submitted by Mr Laurent as further and additional grounds of appeal is a document which should never have been submitted for that purpose because it does not set out the further or additional grounds of appeal he seeks.  It is a document containing many statements, many of which are repeated in one form or another, which relate to matters which are already part of Mr Laurent’s Notice of Appeal of 23 December 2008.  It contains statements of facts, or perhaps what Mr Laurent may believe to be facts, but is not proof of any of those things.  It may contain, in some parts, relevant submissions that Mr Laurent may make when his appeal is heard, however submissions are made in support of grounds of appeal; they are not themselves grounds of appeal. 

54      At best, given the absence of any submissions from Mr Laurent which address the detail of the document, we have been able to identify only one issue that is able to be seen as a ground of appeal and which is not already covered within a current ground of appeal.  That is part of paragraph 58(f) which alleges that Mr Laurent was not allowed any office time during his working time at Scarborough Police Station and therefore it was difficult to catch up on administrative duties. 

Power to amend grounds of appeal

55      Section 33S of the Police Act applies provisions of the IR Act to and in relation to an appeal and a determination of an appeal instituted under Part II of the Police Act subject to Part II of the Police Act and any necessary modifications.  Section 27(1)(l) provides that the WAIRC has the power to “allow the amendment of any proceedings on such terms as it thinks fit”.

56      The words “any proceedings” have been held to include an appeal under the IR Act: The Attorney General in and for the State of WA v. Cockburn Cement Limited and Others (1982) 63 WAIG 6.  In that matter, a Full Bench of the Commission dealing with an appeal from a decision of a single Commissioner allowed the grounds of appeal to be amended during the proceedings.  O’Dea P stated:

“…I think that once the appeal is instituted, there is ample authority under section 27 to do what is necessary to enable the expeditious hearing and determination of all the relevant issues and for this purpose to allow amendment of the proceedings if amendment is thought to be appropriate.”

57      This decision, together with the specific application of s 27(1)(l) to and in relation to an appeal and a determination of an appeal instituted under Part II of the Police Act, leads us to conclude that the power to allow the amendment of any proceedings applies to grounds of appeal.  We think there is some strength to the submission of the Commissioner of Police that much will depend upon the amendment sought.  An appeal under Part II of the Police Act is conditioned by a time limit of 28 days from the date the police officer is removed from office (s 33P(3)) and there is no express power granted to the WAIRC to extend the 28 day period.  Therefore we are not at all sure that the power in s 27(1)(l) would permit the substitution of completely new appeal grounds if to do so will create a new appeal, thereby effectively lodging an appeal out of time.  It is one thing to amend the grounds of an existing appeal; it is another to create an entirely new appeal. 

58      Therefore, we are satisfied that the WAIRC has the power to amend the grounds of appeal to include that part of paragraph 58(f) which alleges that Mr Laurent was not allowed any office time during his working time at Scarborough Police Station and therefore it was difficult to catch up on administrative duties.  Should the WAIRC amend the grounds accordingly? 

Conclusion

59      Mr Laurent’s application has been made 6 months after he lodged his appeal.  That is a significant period of time.  He submits that at the time he lodged his appeal he was not medically capable of summing up, or articulating, the matters that he wished to raise.  This was because of the stress and anxiety he was suffering which, from his submissions, he attributes to injuries and injustices suffered by him in the course of his employment.  He has not produced any medical evidence to support this submission.  However, we do not think that his submission should be rejected for that reason.

60      The reasons the Commissioner of Police lost confidence in Mr Laurent, as they are set out in the document at Volume 1 tab 1, are many.  The overview of those reasons at pages 4 to 7 of Volume 1 tab 1 does not refer specifically to Mr Laurent’s time at the Scarborough Police Station.  Reference to the Scarborough Police Station occurs later in the document to a report of 7 February 2006 (contained in Volume 3 tab 2).  Our brief reading of that report, and without having had the benefit of submissions about it, shows that it does include comments regarding the time allocated to Mr Laurent to complete certain paperwork.  We conclude that although the time Mr Laurent spent at the Scarborough Police Station does not form of itself a significant part of the Commissioner of Police’s reasons for losing confidence in Mr Laurent, it is relevant in that it does form part of the whole of the circumstances relied upon by the Commissioner of Police. 

61      Mr Laurent’s reported difficulties over administrative issues at Scarborough Police Station are already an issue in the appeal.  It is unlikely that the Commissioner of Police would suffer significant prejudice if Mr Laurent is permitted to argue that the reason for this being an issue is that he was given inadequate time to do the work.

62      On balance, we think it is appropriate to make the amendment and we would grant the application to the extent we have outlined, but in all other respects dismiss the application.  As noted at the commencement of these Reasons, on 24 April 2009 Mr Laurent had sent two emails to the WAIRC to which other documents are attached; the status of these documents is not clear.  Mr Laurent has not made any application to the WAIRC in relation to these documents.  They were not the subject of any submission from him when this matter was heard.  Accordingly, they are not part of these proceedings and they will be returned to him.

Comment

63      During the course of the hearing regarding this matter, Mr Laurent referred to an apparent intention to call evidence during the hearing of the appeal.  He referred to an “inspector who I hope will give evidence”; he has stated that he has “many documents”; his Notice of Appeal itself states that the Commissioner of Police has mistakenly identified him as the person of interest and that this mistake “will be evidenced by witness statements to be provided in due course”. 

64      The WAIRC has already drawn to Mr Laurent’s attention the limited nature of an appeal under s 33P of the Police Act.  It is not a “trial” as he refers to in his email to the WAIRC of 3 June 2009 which attached the document of 2 June 2009.  It is an appeal.  It is an appeal which has its procedures set out in the Police Act.  Those procedures make it plain that the documents to be considered by the WAIRC in deciding Mr Laurent’s appeal are only:

(a) any document or other material that was examined and taken into account by the Commissioner of Police in making a decision to take removal action;

(b) the notice given under section 33L(1);

(c) a written submission made to the Commissioner of Police by the appellant under section 33L(2);

(d) the notice given under section 33L(3)(b); and

(e) a notification of the removal from office.

65      Therefore Mr Laurent is not able to call a witness, produce further documents or produce witness statements to the WAIRC in this appeal.  As s 33R(11) (as above) makes clear, these will be “new evidence”.

66      Section 33R of the Police Act will permit Mr Laurent to seek leave to tender new evidence but he should not assume that leave will be granted merely because he asks for it: s 33R(3) and (4) set out the requirements to be met before the admission of new evidence can be considered and if he does seek leave, he will need to deal with each of those requirements.

Minute of Proposed Order

67      We would issue an order:

1. That the following ground be added to the Notice of Appeal: “That I was not allowed any office time during my working time at Scarborough Police Station and therefore it was difficult to catch up on administrative duties”.

2. That the application to add to the grounds of appeal otherwise be dismissed.

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