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

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2014 WAIRC 01358

DELIVERED : tuesday, 16 December 2014

FILE NO. : APPL 19 OF 2014

Appellant

AND

The Commissioner of Police

Respondent

CatchWords : Removal of police officer - loss of confidence by  Commissioner of Police - application to tender new evidence - Police Act 1892 (WA) s 33R(3) and (4)

Legislation : Police Act 1892 (WA) s 33P, s 33R (3), (4)

Result : Leave to tender new evidence granted in part

Representation:

Appellant : Mr K Moran

Respondent : Ms S Teoh, of counsel

Solicitors:

Applicant : n/a

Respondent : State Solicitors Office of Western Australia

Reasons for Decision – New Evidence

1          This is our unanimous decision.  These reasons for decision deal with the documents (paper and on CD and a podcast) which Ms Moran seeks leave to tender as evidence to use in her appeal which are opposed by the Commissioner of Police.  The documents have been received and marked for identification as MFI 1, 2, 3, 5 and 6.  Both Mr Moran (on behalf of Ms Moran) and Ms Teoh (on behalf of the Commissioner of Police) made submissions regarding the documents.

THE DOCUMENTS SOUGHT TO BE TENDERED

MFI 1

2          This is a CD containing a 211 page report entitled Project Recompense prepared by the WA Police Union (WAPU) in November 2014, and an accompanying open letter from its Vice President to members and former members of that union.  The letter says Project Recompense was conceived out of the innumerable calls the WAPU received from both serving and retired members seeking assistance and support in the wake of life-changing physical or psychological trauma.  The aim of the project is to secure a fair outcome for the union’s former members who have suffered trauma as a result of their employment with WA Police and were medically retired.  It has four broad areas: background, a member-experiences section, a discussion section, and recommendations.

3          Mr Moran submits that the appeal is about a young woman who, as a result of her duties over a 24‑year period, suffered from post‑traumatic stress disorder (PTSD).  Project Recompense is a two‑year study relating to just that situation and all the difficulties surrounding it for police officers, including Ms Moran who provided her story, and the difficulties she suffered during that period of time to the WAPU for Project Recompense.  Ms Moran is listed in seriousness as number 3 or 4 in Project Recompense. 

4          Mr Moran also submits the Commission needs to know as much as possible that is within its power to receive to make judgments in this very serious matter.  It relates to others as well as Ms Moran although Mr Moran recognised that the Commission can only ‘concentrate’ on Ms Moran.  

5          Ms Teoh makes the general submission that the documents to which the Commissioner of Police does not consent are not relevant to, or do not assist, the Commission in determining whether Ms Moran’s removal was harsh, oppressive or unfair.  It appears from the documents already filed that Ms Moran does not dispute the reasons for her removal and accepts the medical opinions.  It is clear from the documents sought to be tendered that Ms Moran believes that police officers who are medically retired should receive some form of monetary compensation however there is no legislative means to enable that to happen and the Commission’s hands are tied in that regard. 

6          Ms Teoh submits that none of the documents are relevant to the appeal because they do not show that the Commissioner of Police acted on wrong or mistaken information.  The Commissioner of Police found that Ms Moran was no longer fit for duty based on the opinion of an independent medical board and nothing produced by Ms Moran contradicts that finding - in fact, it supports that finding.  Alternatively, none of the evidence would have materially affected the Commissioner of Police’s decision to take removal action.  The fact that medically retired police officers do not receive compensation upon retirement is not a reason not to remove an officer who can no longer do the job according to medical opinion.  Further, it is not in the interests of justice to grant leave to tender the documents because they are not relevant to the question of whether Ms Moran’s removal on medical grounds was harsh, oppressive or unfair.  Ms Teoh points out that the tests in both s 33R(3) and (4) of the Police Act 1892 (the Police Act) are to be applied.

7          Where Ms Teoh addressed particular documents, her submission is referred to below.

8          Addressing MFI 1, Ms Teoh submits that it appears to be a submission prepared by the WAPU recommending to Government legislative amendment to enable a compensation scheme for medically retired officers.  This is not relevant to these proceedings.  It comes after Ms Moran’s removal from office so it cannot be said that it would have materially affected the Commissioner of Police’s decision or that he acted on wrong or mistaken information.

9          We consider that whether leave should be granted to tender MFI 1 raises the following issues.  First, is it relevant to Ms Moran’s appeal? 

Ms Moran’s Appeal

10       Ms Moran was removed on 17 July 2014.  Her appeal is that the decision to remove her is harsh, oppressive or unfair for the three grounds she states in her Notice of appeal.  These are:

Harsh - My proposed removal was harsh by it being so ruthless in its intent. Although it is provided in section 33L, to discard me, an officer of 22 years of meritorious duty struck down by an illness proven to be the result of such service without any acknowledgement of this service except the payment of wages for a month upon removal. Such an action can be nothing but harsh.

Oppressive - As a Senior Constable I was now required to challenge my Commissioner as to the validity of his decision; and that in its very nature an oppressive situation for me a relatively very junior officer. It may not be an intended situation, but it exists in all such circumstances - Also upon my commencing sick leave and the subsequent medical requirements and examinations, I was placed in a situation of no power but to conform and that is not challenged; but it was a domineering factor in my life of which I had no control. This is an oppressive situation.

Unfair - Can it not be anything else but unfair that an officer of 22 years of meritorious duty struck down by an illness proven to be the result of her service is then sacked as a result of this job caused illness.

This is without any acknowledgement and compensation for a job related illness and 22 years of service, except the insult of payment of wages for a month upon removal.

Again I claim there is no argument that can contradict the immoral action of and subsequent malicious reality of this action.

11       The relief Ms Moran seeks is: 

I would therefore request the withdrawal the Notice to Removal On Medical Grounds of me from Service and you continue to pay my wages as contracted under the terms related to my conditions of Engagement my giving my Oath on 23 July 1990 until the current situation relating to Compensation sought by the Union is dealt with by the appropriate Court; or - I be offered a ex-Gratia with the suggested amount to be five years' wages of a Senior Constable, as that is the period determined before I obtain an equilibrium to my life, but with expected lapses for the rest of my life.

12       These grounds of appeal, and the relief sought, were put by Ms Moran to the Commissioner of Police in a document dated 22 April 2014, prior to her removal, and which is pages 16-23 of the Respondent’s List of Documents filed on 21 October 2014.  (Exhibit A).

13       Ms Moran’s appeal can only be about whether the decision of the Commissioner of Police to take removal action relating to her was harsh, oppressive or unfair because that is what s 33P(1) of the Police Act provides.  MFI 1 will be relevant to Ms Moran’s appeal if it goes to one or more of the grounds or to the relief she seeks.

14       The second issue raised by whether leave should be granted to tender MFI 1 is the restrictions in s 33R of the Police Act regarding tendering new evidence. 

The Police Act 1892

15       The Police Act in s 33R(11) prescribes that evidence other than evidence of the following will be new evidence:

(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 s 33L(1);

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

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

 (e) a notification of the removal from office.

16       The hearing proceeded on the assumption that none of the documents which Ms Moran seeks leave to tender are within the above description.  Therefore the Police Act regards each of them as new evidence.  In the absence of the Commissioner of Police consenting to the documents being admitted, s 33R(3)(b) provides that the Commission may grant leave to tender new evidence if it is satisfied that:

(i) Ms Moran is likely to be able to show that the Commissioner of Police has acted upon wrong or mistaken information;

(ii) the new evidence might materially have affected the Commissioner of Police’s decision to take removal action; or

 (iii) it is in the interests of justice to do so.

17       We also are obliged by the Police Act in s 33R(4) to have regard to:

(a) whether or not Ms Moran was aware of the substance of the new evidence; and

(b) whether or not the substance of the new evidence was contained in a document to which she had reasonable access,

  before her removal from office.

18       We find as follows.  Project Recompense has as its purpose securing a fair outcome for the union’s former members who have suffered trauma as a result of their employment with WA Police and were medically retired.  Ms Moran may consider that there is not a fair outcome for the union’s former members who have suffered trauma as a result of their employment with WA Police and were medically retired however, Ms Moran’s appeal can only be about her own removal.  The removal of any other police officer or class of police officers, past or present, whose circumstances may be the same as, or similar to, her own circumstances is not relevant to whether in her case the decision to remove her was harsh, oppressive or unfair.  

19       Correspondingly, the Commission can only deal with whether the decision to remove Ms Moran was harsh, oppressive or unfair.  In the course of doing so, the Commission cannot deal with the removal of any other police officer or class of police officers, past or present, whose circumstances may be the same as, or similar to, her own circumstances.

20       Nevertheless, the fact that Project Recompense includes Ms Moran’s own circumstances makes it relevant to her appeal because it is open to Ms Moran to refer to her own circumstances in the context of the work of a WA police officer.  Ms Moran’s appeal does not, and cannot, include the general issue of securing a fair outcome for the union’s former members and MFI 1 cannot be received for that purpose.  She would have been aware of the substance of her contribution to MFI 1, but it is not a document to which she had reasonable access before her removal from office.  As it contains material about Ms Moran which is capable of supporting a submission open to her in her appeal, we consider it is in the interests of justice to admit it.  We grant leave to admit it.

MFI 2

21       This is three extracts from The West Australian of 14, 15-16 and 20 November 2014 respectively.  The 20 November 2014 extract is a report of a paralysed WA police officer who is said to be facing discharge on medical grounds and contains the statement of the Commissioner of Police that the officer’s employment ‘would not end until there was an outcome on the ex gratia payment application’.  The copy of the article is annotated:

The request by the Appellant to be reinstated to the WA Police prior to her removal and until agreement between the Government and the WA Police Union in regard to compensation for duty caused illness and injured constables if not already a precedent, it has become so in the circumstances outlined above in the Ryan Marron case.

22       Mr Moran submits that it is a precedent Ms Moran seeks to rely upon because this officer is now to be removed from the WA Police under the same circumstances as Ms Moran, but in this case because of the publicity, an application has been made for an ex gratia payment and it is reported that the Commissioner of Police said that he would be retained in the WA Police until such time as the ex gratia payment was made.  He submits that this information is important because Ms Moran herself is requesting the Commission to rule that she should be returned to her previous position in the WA Police - and that is, she was on sick leave - and that she remains on sick leave until such time there is an agreement between the Government and the WAPU in regard to compensation.  If that is already happening to an ill officer and he has been retained in the WA Police and been paid his wages until such time he receives recompense, be it ex gratia or not, it should also apply to Ms Moran.

23       Ms Teoh submits that it is not relevant to Ms Moran’s specific case.

24       We consider that although it is only a newspaper report, and for that reason may not be accurate, it goes to an issue raised in the statement in the grounds of appeal: ‘This is without any acknowledgement and compensation for a job related illness and 22 years of service…’ and in the relief that Ms Moran seeks.  What weight is to be given to it will be a matter for submissions, however if it goes to an issue in her grounds, Ms Moran is able to refer to it.  It was printed after Ms Moran’s removal and it is unlikely that Ms Moran was aware of it prior to her removal.  We consider it is in the interests of justice to admit it and grant leave to do so.

25       The 14 November 2014 extract is headed ‘Commissioner apologises to officers detained like criminals’ and is annotated:

This interrogation of constables after traumatic events has always been used as a foil against criticism of police favouring their own.  The interviews have always been severe. The situation is not expected to change.  However it can damage the officer(s) concerned emotions - precipitating the possibility of PTSD or its commencement.

26       The 15-16 November 2014 extract is headed ‘Police arrest under review’ and is annotated:

Evidence of disquiet at the questioning of the constables, which indicates their treatment does not coincide with the public's ethics.

27       Mr Moran submits that these show a duty of care situation that Ms Moran will be presenting.  He submits that they relate to a culture that explains why Ms Moran was not assisted and are evidence of the disquiet within the community and within the WA Police about the culture of the police not really looking after their officers.

28       Ms Teoh submits that these articles are not relevant to Ms Moran’s specific case and do not go to demonstrating that the removal action taken by the Commissioner of Police was harsh, oppressive or unfair.

29       We have regarded the annotations as Ms Moran explaining the reason why she is seeking leave for these two articles to be tendered.  It is not apparent to us how the articles are relevant to Ms Moran’s appeal.  Ms Moran’s appeal includes that she was struck down by an illness proven to be the result of her service and this does not appear to be in dispute.  It is not stated in her appeal that a reason why the decision to remove her is harsh, oppressive or unfair is because of a lack of duty of care or because of disquiet within the community and within the WA Police about the culture of the WA Police not really looking after their officers.  We do not grant leave to admit them.

MFI 3

30       This is a bundle of documents.  The emails of 21 October 2014 from the WAPU show that a short video was to be made for the launch at the WAPU conference of Project Recompense that outlines the experiences of the WAPU’s members on the frontline and the author states Ms Moran’s contribution was absolutely invaluable. 

31       Mr Moran submits that the emails are evidence of an understanding of others of the seriousness of what occurred to Ms Moran during her 24 years in the WA Police. 

32       Ms Teoh submits that the WAPU officer’s opinion about Ms Moran’s story is not relevant to these proceedings; it is for the Commission to ultimately make that decision.

33       We consider Ms Teoh’s submission is correct and do not grant leave to admit the emails.

34       The bundle includes a copy of the questionnaire for Project Recompense which Ms Moran completed.  Mr Moran submits it relates to the trauma Ms Moran suffered well before she made her statement for the Commission.  It was completed when she was still a police officer and before any consideration of going to the Commission arose, thus giving a continuity of the information as being correct and authentic.  It gives credibility and strength to the statement she has provided to the Commission.

35       Ms Teoh submits that the material in the questionnaire is largely reproduced in Ms Moran’s statutory declaration.  There is therefore no need for it to be tendered into evidence, except possibly for credibility purposes.

36       We find that the content of the questionnaire completed by Ms Moran contains details of her own circumstances.  It is open, perhaps even necessary, for Ms Moran to refer to her own circumstances in support of her appeal that the decision to remove her was harsh, oppressive or unfair.  Her responses to the questions will be relevant to any issue about her credibility.  It was completed by Ms Moran whilst she was still a police officer and thus she was aware of it prior to her dismissal, although it is not clear when she had the copy of her completed questionnaire.  As it is material capable of supporting a submission open to her in her appeal, we consider it is in the interests of justice to admit it and grant leave to do so.

37       The WA Police News December 1998 article is about the circumstances of another officer.  Mr Moran submits that it is evidence of the WA Police being aware of these issues 16 years ago and it goes to the duty of care.  It is not apparent to us how the article is relevant to Ms Moran’s appeal.  It is not stated in her appeal that a reason why the decision to remove her is harsh, oppressive or unfair is because the WA Police was aware of these issues 16 years ago and there has been a lack of duty of care.  We do not grant leave to admit the document.

38       The WA Police News October 1998 contains an article by former Police Minister the Hon Kevin Prince.  Mr Moran submits that the Minister produced new legislation, that s 8 of the Police Act and its amendments occurred in 2003, and there was a relationship between the WAPU and the Government relating to sick leave and the removal of officers under s 11, foreshadowing that he will put an argument that s 8 cannot be used to remove Ms Moran. 

39       We note that Ms Moran’s submission to the Commissioner of Police in the respondent’s documents (Exhibit A at p 20) shows that Ms Moran submitted that s 8 ‘cannot be invoked in my case’, however it is not apparent to us how the article is relevant to the grounds why Ms Moran says in her appeal that the decision to remove her was harsh, oppressive or unfair and we do not grant leave to admit it.

40       The next document is not sourced and is dated May-June 1998.  It contains information regarding a new role for police officers and better communications.  Mr Moran submits that compensation and s 8 are joined with the theory of a common law constable which is now, he claims, outmoded and archaic. 

41       It is not apparent to us how the document is relevant to the reasons why Ms Moran says that the decision to remove her was harsh, oppressive or unfair and we do not admit it.

42       The WA Police News April 1999 article is about a police inspector and WAPU Councillor attending a world congress on stress trauma and coping in emergency services.  Mr Moran submits that it gives further indication that the WA Police must have known of the difficulties facing their officers when they attend critical incidents and they need assistance. 

43       It is not apparent to us how the article is relevant to the reasons why Ms Moran says that the decision to remove her is harsh, oppressive or unfair and we do not admit it.

44       The next document is an extract from the WA Police Recruitment booklet.  Mr Moran submits that it indicates that a constable in the WA Police in 2014 and earlier, probably a couple of decades, has no relationship to a common law constable and if he has no relationship to a common law constable, then he is entitled to some compensation.

45       It is not apparent to us how the article is relevant to why Ms Moran says that the decision to remove her is harsh, oppressive or unfair and we do not admit it.

46       The extract from Hansard 2 April 2014 is the speech of former Police Minister the Hon Michelle Roberts.  It addresses the general issues of the impact of PTSD and of the need for occupational health and safety coverage of police officers.  

47       Ms Teoh submits that police officers suffering from post traumatic stress is something for legal submission and that no one is disputing that Ms Moran suffered from post traumatic stress.

48       We observe that the impact of PTSD and the need for occupational health and safety coverage of police officers are important issues.  The question is whether the speech of a former Police Minister on these issues is relevant to why Ms Moran’s own removal was harsh, oppressive or unfair.  Ms Moran is able to make submissions about her own circumstances and that there is no system of compensation in place which entitles her to compensation.   It is a matter of public knowledge that there is no system of compensation in WA for police officers who are medically retired.  Ms Moran’s appeal that it is harsh and unfair to remove her without any acknowledgement of her service except the payment of wages for a month upon removal will be heard on the understanding that there is no such system.  Whether there should be such a system, or why there is not such a system, is not a matter for this Commission in this appeal by Ms Moran. 

49       The speech of a former Police Minister on these issues provides some background to why there is not such a system of compensation, but it is the fact that there is not such a system applicable to Ms Moran, not why there isn’t, that is relevant to Ms Moran’s appeal that her own removal was harsh, oppressive or unfair.  We do not grant leave to admit it.

MFI 5

50       This is a folder entitled ‘Ephemeral Material’.  It includes a significant number of copies from newspapers, the WA Police News, the Police Annual Report, links to articles on the internet and a podcast.  It includes a CD of photographs taken from the Police News 1990-2014; the CD cover is annotated with the comment that the material provides evidence that the concern over stress-caused illness in regard to constables of all ranks was evident over 24 years ago.  The Commission has viewed the photographs.

51       Mr Moran identifies the newspaper articles and Police News items that relate to the traumas and the difficulties that other officers have suffered and asks the Commission to accept them as advice of the difficulties police officers have when removed from the police service and how they came to be removed. 

52       Ms Teoh submits that the theme of these articles appear to be about ex gratia payments and stories about police officers suffering from trauma or complaints about the lack of a workers’ compensation system in place for WA police officers.  She submits that these articles are not relevant to Ms Moran’s appeal because they do not demonstrate that her removal was harsh, oppressive or unfair.

53       For reasons explained earlier, we are only able to deal with whether the decision to remove Ms Moran is harsh, oppressive or unfair and we do not grant leave for these to be admitted. 

54       Applying to the remaining documents in MFI 5 the same approach as applied above, we consider that only the following documents are relevant to Ms Moran’s appeal that the decision to remove her is harsh, oppressive or unfair and we give consideration to whether leave should be granted to tender each of them.

55       The West Australian 12 July 2006 - Ex-cop gets $230,000 for shootings trauma.  This is a report that a former police officer medically-retired in 1996 received a $230,000 ex gratia payment in July 2006.  We consider that although it is only a newspaper report, and for that reason may not be accurate, it goes to an issue raised in the relief Ms Moran seeks, namely that she be offered an ex gratia payment.  It is not within the power of the Commission upon a finding that Ms Moran’s removal was harsh, oppressive or unfair to require that such a payment be offered, however it is open on Ms Moran’s grounds of appeal for her to submit that one could be offered to her and she should not be removed until that is known.  Even if it is not a significant submission, the fact that one was offered to a former police officer is relevant to the submission.  It was printed before Ms Moran’s removal from office and it is likely that she would have been aware of the article prior to her removal.  We consider it is in the interests of justice to admit it and grant leave to do so.

56       WA Police News August 2013 - Harvey: Frontline won't be compromised – page 10.  This is dated August 2013 and reports that Police Minister the Hon Liza Harvey said that she would overhaul the process of removing medically unsound officers and that she believed that ‘officers who are medically unfit should not have to go through the humiliation of a loss of confidence process’.  We consider that although it is only a report, and for that reason may not be accurate, it relates to Ms Moran’s grounds why her removal was harsh, oppressive or unfair.  It was printed before Ms Moran’s removal from office and it is likely that she would have been aware of the article prior to her removal.  The Minister’s comment was referred to by Ms Moran in her submission to the Commissioner of Police prior to the decision to remove (Exhibit A) and for that reason this document may not be new evidence.  We consider it is in the interests of justice to admit it and grant leave to do so.

57       WA Police News August 2013 - Challenges ahead of reform.  This is dated August 2013 and includes a report that the Commissioner of Police said in relation to officers who are sick, on extended sick leave or have been retired from the service medically unfit that ‘the system we’ve got at the moment is not fair on the officers who are sick’.  We consider that although it is only a report, and for that reason may not be accurate, it relates to Ms Moran’s grounds why her removal was harsh, oppressive or unfair.  It is open to her to submit that the reported comment of the Commissioner of Police supports her appeal that the decision to remove her was unfair.  It was printed before Ms Moran’s removal from office and it is likely that she would have been aware of the article prior to her removal.  We consider it is in the interests of justice to admit it and grant leave to do so.

58       In relation to each of the documents in MFI 5 which are not included in the above, we have considered Mr Moran’s submission regarding each document, and Ms Teoh’s responses.  There are many documents and they do not raise issues not already covered in relation to other documents in MFI 4.  It is not apparent to us how each document is relevant to why Ms Moran’s own removal was harsh, oppressive or unfair and we do not grant leave to admit them. 

59       Mr Moran referred to one document, Western Australian Police Government Organization Facebook Page, which he submits addresses an argument that police officers are employees and if Ms Moran is an employee of the government it automatically provides her with many other avenues of assistance that are not provided by WA Police.  Ms Teoh made the point that this issue is not a ground of appeal.  In our view, it is open to Ms Moran to submit that the decision to remove her without any acknowledgement of her service except the payment of wages for a month upon removal is harsh compared to an employee of the government in the same or similar circumstances, but it is not stated as a ground of appeal that she was in law an employee and therefore that issue is not relevant to her appeal.  We do not grant leave to admit the document.

MFI 6

60       This is a Statutory Declaration by Ms Moran dated 11 November 2014. 

61       Ms Teoh submits that the statutory declaration sets out Ms Moran’s experiences as a police officer and how that resulted in her illness, however this is not disputed, and in fact it was the reason for her removal.  The statutory declaration does not address how her removal was harsh, oppressive or unfair and therefore it is of limited use to the Commission.

62       In our view, the statutory declaration contains in significant detail Ms Moran’s work history with the WA Police and includes examples of the stressful duties and situations she encountered.  Commencing at page 7 it recounts the emotional impact upon her and includes material which may be relevant to her capacity to undertake employment outside the WA Police.  It is open to Ms Moran to refer to her own circumstances to support her appeal that the decision to remove her was harsh, oppressive or unfair.  Although Ms Moran was aware of the substance of the content of the statutory declaration prior to her removal, it was made after her removal from office.   As it is material capable of supporting a submission open to her in her appeal, we consider it is in the interests of justice to admit it and grant leave.

CONCLUSION

63       We grant leave to admit the following as new evidence but otherwise dismiss the application to tender new evidence:

1. The CD containing the Project Recompense report as presented in MFI 1.

2. Extract from The West Australian of 20 November 2014 – Officer faces medical discharge.

3. Ms Moran’s completed questionnaire for Project Recompense.

4. The West Australian 12 July 2006 – Ex-Cop gets $230,000 for shootings trauma.

5. WA Police News August 2013 – Harvey: Frontline won’t be compromised.

6. WA Police News August 2013 – Challenges ahead of reform.

7.  The Statutory Declaration by Ms Moran dated 11 November 2014.

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