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

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2015 WAIRC 00464

DELIVERED : Thursday, 25 June 2015

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 – Officer permanently unfit for duty - Removal due to medical incapacity - Appeal against removal – Whether removal harsh, oppressive or unfair to be judged objectively – Distinction between submissions and grounds of appeal

Legislation : Industrial Relations Act 1979 (WA) s 80ZE
Interpretation Act 1984 (WA) ss 18, 19, 19(2)
Occupational Safety and Health Act 1984 (WA) ss 3(4), 19
Police (Medical and Other Expenses for Former Officers) Act 2008 (WA)
Police Act 1892 (WA) ss 8, 11, 33Q, 33Q(4), 33Q(4)(a), 33Q(4)(b), 33Q(4)(b)(i), 33L, 33L(1), 33L(2), 33M, 33M(1), 33M(2), 33P, 33P(2)(a), 33R, Pt IIB
Police Amendment Act 2003 (WA)
Workers’ Compensation and Injury Management Act 1981 (WA)
Industrial Relations Commission Regulations 2005 (WA) reg 91(1)(a)(i)-(iv)
Police Force Regulations 1979 (WA) regs 6A01, 6A02 - 6A08, 6A10, 6A11, 1306, 1402, 1402(1), 1402(4), Pt VIA

Result : Appeal dismissed

Representation:

Appellant : Mr K Moran, as agent

Respondent : Ms S Teoh, of counsel

Solicitors:

Respondent : State Solicitor’s Office of Western Australia

Case(s) referred to in reasons:

Carlyon v Commissioner of Police (2005) 85 WAIG 708

Deborah Gay Bachelar v Skybus (1983) 63 WAIG 2244

Fletcher v Nott (1938) 60 CLR 55

In re Loty and Holloway v Australian Workers’ Union (1971) 71 AR 95

Jarratt v Commissioner of Police (2005) 224 CLR 44

Jones v Commissioner of Police [2007] WAIRC 00440; (2007) 87 WAIG 1101

Kyriakopoulos v James Hardie & Company Proprietary Limited (1970) 37 SAIR 91

McKay v Commissioner of Police [2006] WASC 189; (2006) 155 IR 336

Menner v Commissioner of Police (1997) 74 IR 472

Moran v The Commissioner of Police (2015) 95 WAIG 185

R v Young (1999) 46 NSWLR 681

The Amalgamated Society of Engineers v The Adelaide Steamship Company Limited (1920) 28 CLR 129

The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

Reasons for Decision

BEECH CC:

1         The Commissioner of Police removed Senior Constable Susan Moran from the WA Police under s 8 of the Police Act 1892 (the Act) with effect from 17 July 2014.  Ms Moran appeals her removal on the basis that it was harsh, oppressive or unfair. 

Background

2         Ms Moran was inducted into the WA Police on 23 July 1990 and graduated in December 1990.  Ms Moran served in the metropolitan area, Newman and, in the last 10 years of her 24 years’ service, at Geraldton.  The majority of her duties were general duties and as coronial officer.

3         She faced many stressful duties and situations and experienced many traumatic incidents over her career.  In her witness statement and in her response to Project Recompense, Ms Moran set out examples of some of the more stressful duties she undertook and incidents she encountered; there are more than 30 such examples over three and a half pages of her statement.  The following four pages of her statement set out in considerable detail the effect this had upon her physical and emotional health and wellbeing.  It is not necessary to detail them. 

4         Ms Moran commenced paid sick leave either on 10 December 2012 or on 18 January 2013.  She received regular treatment and counselling through her GP.  On 14 February 2013 she was referred to Ms Giannini, the vocational rehabilitation consultant in Health and Welfare Services, a process which occurs once an officer has taken 80 hours or more continuous sick leave. 

5         In the conversation she had with Ms Moran on 28 February 2013, Ms Giannini specifically recalls Ms Moran saying she had serious doubts about her ability to return to work at all and was considering medical retirement.  Ms Moran’s evidence of the conversation is that it was Ms Giannini who raised whether Ms Moran had considered medical retirement, to which Ms Moran replied that she was not prepared to return to work to become sick again.  I have not found it necessary to resolve this difference in their evidence.

6         After a further conversation with Ms Moran on 23 May 2013, Ms Giannini scheduled an appointment for her to see the consultant psychiatrist, Dr Piirto.  In a report dated 21 June 2013, Dr Piirto diagnosed Ms Moran with chronic Post Traumatic Stress Disorder (PTSD) and a Major Depressive Disorder which is chronic and in partial remission.  Dr Piirto concluded that Ms Moran met the criteria for medical retirement. 

7         Ms Moran accepted the opinions of the various doctors about whether she was able to return to work as a police officer and did not object to their opinions.  In her evidence in this appeal, Ms Moran accepted that she will never return to work as a police officer.  

8         In June 2013 Senior Sergeant Bryan, the manager of the Welfare Unit which is part of Health and Welfare Services, wrote to Ms Moran's treating medical practitioners requesting contemporary medical information, a diagnosis, a prognosis and an opinion as to whether Ms Moran had the capacity to work as a police officer.  A number of medical reports were obtained from Ms Moran’s treating medical practitioners who expressed the opinion that Ms Moran was not fit to return to work as a police officer. 

9         In January 2014 the Assistant Director HR of Health and Welfare Services requested that a medical board be convened under regulation 1402 of the Police Force Regulations (the Regulations) to determine Ms Moran’s fitness for further active service.

10      On 13 February 2014, Ms Moran received an email from Senior Sergeant Bryan advising her that arrangements had been made for her attendance at a medical board.  Ms Moran asked in reply what that entailed, whether she would be questioned about her illness and who sits on the medical board.  She replied on 20 February 2014 that she had decided not to attend it as she believed it would cause her considerable stress which she would not cope with well. 

11      Senior Sergeant Bryan advised her that she was required to attend and if she did not do so the Commissioner of Police may cease to continue her paid sick leave entitlements.  Ms Moran replied acknowledging that she realised she had no choice but to attend, and asking for her termination payment details. 

12      Ms Moran attended the medical board on 11 March 2014, producing a document titled ‘Notice of intent’ (attachment 3 to the Commissioner of Police’s answer of 2 September 2014) directed to the chairman of the medical board, the Commissioner of Police, the Minister for Police, and the Premier of WA.  It states: 

I hereby indicate my intent to bring litigation before the Western Australian Industrial Relations Court in accordance with section 33L of the Police Act due to my impending medical removal from the WA Police Service. 

My emotional, mental and physical health have been seriously compromised by my duties imposed upon me by the Commissioner of Police during my service to the State of Western Australia. 

This harm caused to my health throughout my service of twenty three years will result in my medical removal from the WA Police Service, which is manifestly cruel, harsh, oppressive and unfair.  This removal will be harmful to my future life, happiness and that of my family. 

13      The report of the medical board (attachment 2) is dated the same day.  It states: 

Susan Moran attended a medical board on 11 March 2014.  She has worked for Western Australian Police for 22 years and managed to cope with the many difficult situations she confronted in the job.  However with time coping with the violence she has faced has become more difficult.  By the time she left work she had profound difficulty coping with any stress, was hyper vigilant and angry about her situation. 

Since leaving work she has improved but still becomes anxious and defensive when she has contact with her former employment.  We feel if Susan attempted to return to the work for Western Australian Police it would heighten her emotional problems in spite of therapy. 

Thus we feel Susan Moran is unfit for work within Western Australian Police however with time she should be able to cope in a non confronting environment working for another employer. 

14      On 24 March 2014, the Director Human Resources of WA Police sent a memorandum to the Commissioner of Police advising the conclusion of the medical board and attaching a notice under s 33L(1) of the Act for his consideration. 

15      On 31 March 2014, the Commissioner of Police sent Ms Moran a notice of intention to remove (NOITR) under section 33L(1) of the Act.  The NOITR stated that the Commissioner of Police intended to recommend her removal from the Police Force ‘on medical grounds’ because he is not satisfied that Ms Moran is ‘able to continue to perform the duties of a police officer due to [her] Post Traumatic Stress Disorder and Major Depressive Disorder’.  The notice invited Ms Moran to submit within 21 days any information she would like the Commissioner of Police to take into account in determining her suitability to continue as a police officer. 

16      Ms Moran’s response to the NOITR is dated 22 April 2014 (attachment 5).  It is headed ‘Notice of Appeal’ and its eight pages contain much that she has written and submitted in this appeal.

17      On 19 May 2014, the Commissioner of Police sent Ms Moran a notice of his decision that he still did not have confidence in her ability to continue as a member of the Police Force because her PTSD and Major Depressive Disorder meant that Ms Moran was not able to continue to perform the duties of a police officer.  It advised that, accordingly, he intended to recommend immediately to the Minister for Police that she approve Ms Moran’s removal on medical grounds.  The notice advised Ms Moran that she would be paid a ‘maintenance payment’ in accordance with s 33M of the Act for the period of 28 days after the date upon which she is removed.  Ms Moran remained on sick leave on full pay until that point. 

18      The Commissioner of Police’s recommendation to the Minister is dated 19 May 2014.  On 26 May 2014 Ms Moran wrote to the Minister for Police requesting consideration of the circumstances she outlined, to which the Minister replied.  The Minister approved the Commissioner of Police’s recommendation on 30 June 2014.

The Commissioner of Police’s reasons for removal

19      The reasons the Commissioner of Police removed Ms Moran are contained in his Answer filed 2 September 2014 and in the reformulated reasons filed 6 February 2015.  Without repeating what is set out above, it is sufficient to record that the Commissioner of Police says he was not satisfied Ms Moran was able to continue to perform the duties of a police officer due to her PTSD and Major Depressive Disorder.  In her response to the NOITR, Ms Moran did not dispute the fact that she was no longer fit to perform the duties of a police officer. 

20      The Commissioner of Police states that on 27 March 2013, Ms Moran advised the WA Police Vocational Rehabilitation Consultant that both her general practitioner and psychiatrist felt that she would not be able to return to work in the foreseeable future and should be medically retired, and that she stated she felt that she could no longer work effectively as a police officer.  The medical board convened on 11 March 2014 had deemed that Ms Moran was unfit for work within WA Police and that if she attempted to return to work for WA Police, it would heighten her emotional problems in spite of therapy. 

21      Ms Moran’s response to the NOITR did not dispute that she was no longer fit to perform the duties of a police officer and the Commissioner of Police says that he still did not have confidence in Ms Moran’s ability to continue as a member because he was still not satisfied, by reasons of her PTSD and Major Depressive Disorder, that she was able to continue to perform the duties of a police officer.  Ms Moran was removed and given a 28 day maintenance payment pursuant to s 33M of the Act. 

22      The Commissioner of Police says that where all of the evidence demonstrates that a member of the WA Police is no longer medically fit for further active service, it is open for him to lose confidence in the member’s performance for the purpose of s 33L(1) of the Act and the Commissioner of Police owes a duty to the WA Police and to the community generally to remove the member on medical grounds under s 8 of the Act. 

23      The Commissioner of Police did not have confidence in her ability to continue as a police officer because he was not satisfied, by reason of her PTSD and Major Depressive Disorder, that she was able to do so.

The grounds of appeal

24      The grounds in Ms Moran’s notice of appeal filed 1 August 2014 are: 

Harsh – My proposed removal was harsh by 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. 

The case presented by Ms Moran

25      Mr Moran, who appeared on behalf of his daughter in the hearing, presented a wide-ranging oral submission over three days of hearing.  Mr Moran described the substance of his presentation as ‘a human story of how Senior Constable Moran was removed in a harsh, oppressive and unfair manner overlayed by the destruction of her dignity’. 

26      Mr Moran presented his submissions under different headings although in many cases, the points he made under one heading were repeated under later headings.  Most of the points can be identified, and summarised, at ts 199 where Mr Moran addressed the requirement in s 33Q(4)(a) of the Act for the Commission to take into account ‘the interests’ of Ms Moran.  

1. Removing Ms Moran under s 8 of the Act meant she was placed in the company of those officers removed due to unacceptable behaviour, either criminal or regulatory.  There is shame associated with being removed from service under s 8.  This was not in her interest. 
2. Her removal was not under s 11 and this was not in her interest. 
3. Ms Moran was subject to a process that was harsh, oppressive and unfair throughout her removal from the police and caused her much anguish, particularly relating to the detrimental and potentially dangerous effects upon her emotional state due to her PTSD and this was not in her interest.
4. A person should be trained to mentor her and prevent further trauma and deterioration of her mental state and to lead her through the process.  
5. After two and a half decades of loyal and exemplary service Ms Moran did not receive a farewell function from the local police station where she had been for 10 years and this unkindness was devastating and it caused a demolishing of her dignity.  This was not in her interest.
6. She did not receive even a letter from the Commissioner of Police thanking her for 24 years of exemplary service and that further demolished her dignity.  This was not in her interest.  In her view, to be so pitilessly discarded further increased her distress and lack of worth. 
7. Ms Moran’s feeling of worth was shattered by her sacking and diminished assistance to her family and that is not in her interest.  
8. Ms Moran’s full recovery is deemed unlikely by the medical practitioners who consulted with her on instruction from the Commissioner of Police in that she may recover to near normal state in five years and may live a regular life until, as indicated by medical research, she will relapse into a state of chronic post‑stress disorder and chronic major depressive order and that is not in her interest.
9. Her removal was without compensation or pension and that is not in her interest.  Her likelihood of obtaining employment in the near future is fraught with difficulties for her and subsequently for any employer and that is not in her interest.  The standard of living for herself, partner and family will be diminished to a lower socioeconomic level as she foregoes lost wages that will run into $1.3 million plus presumed loss of wage increases and continued superannuation payments.  This is not in her interest.

27      Mr Moran also submits that Ms Moran’s PTSD and chronic depression was the result of a failure of the Commissioner of Police’s duty of care towards her and that, although she replied to the NOITR, Ms Moran received no response to her reply and the Commissioner of Police did not respond to any of the matters raised by her in it.  Mr Moran says she should not have been removed until discussions between the State government and the WA Police Union result in a compensation scheme for medically retired police officers.  Alternatively, Ms Moran should have been retained until the government offered an ex gratia payment to her.  Ms Moran referred to the publicly-reported circumstances of another police officer who has not been removed pending determination of an ex gratia payment, and to another officer who received a compensation payment for his injuries.

28      Ms Moran gave evidence in the hearing and was cross-examined.  Mr Moran tendered a number of documents in support of the submissions he made.

The case presented by the Commissioner of Police in response

29      The Commissioner of Police submits that he is not required to retain a police officer indefinitely who is no longer fit to perform the duties of a police officer.  It is not in the public interest for him to retain, on paid sick leave, police officers who are permanently unfit for duty, for an indeterminate period of time, particularly given his duty as a public officer to ensure that unwarranted expenses are avoided. He has a statutory duty to maintain public confidence in the WA Police and to remain confident in his members' suitability, having regard to the special nature of the relationship between himself and members of the WA Police.

30      Where all of the evidence demonstrates that a member is no longer medically fit for further active service into the foreseeable future, it is open to the Commissioner of Police to lose confidence in the member's performance for the purposes of s 33L(1) of the Act.  In those circumstances he owes a duty to the WA Police and to the community generally to remove the member on medical grounds under s 8.

31      The Commissioner of Police says that although Ms Moran alleges that the removal process under s 8 was unfair due to the 'stigma' attached to loss of confidence proceedings, this issue is beyond the scope of the appeal.  In the alternative, the removal process under s 8 is not unfair and the Commissioner of Police followed the process set out by Parliament in the Act and Regulations in a fair and appropriate manner.

32      A police officer removed on medical grounds is entitled to a 28-day maintenance payment under section 33M(1) of the Act and payment of any unpaid annual leave and long service leave.  The Commissioner of Police submits that he complied with those requirements and paid Ms Moran accordingly.  In "exceptional circumstances", the Minister may direct that a maintenance payment under s 33M(1) shall be paid to the member for a specified period, not exceeding six months but ending on the day any appeal instituted under s 33P is determined.  The discretion lies with the Minister and not with the Commissioner of Police.  The amount of 'compensation' to which a medically retired police officer is entitled is prescribed by Parliament in the Act and it would be beyond the power of the Commission to go behind the legislation by ordering payment of compensation contrary to Parliament's intention, particularly where the process followed was not unfair, harsh or oppressive.

33      In response to the circumstances of other police officers referred to by Ms Moran, the Commissioner of Police submits that this is beyond the scope of the grounds of appeal.  Alternatively, the circumstances of others are an exception to the general rule.  Further, it is not for the Commission to "stand in the Commissioner's shoes" and proclaim that it would have done something different.  It cannot substitute its view for the view of the Commissioner of Police.

Consideration

34      The issue to be decided in the appeal is whether the decision of the Commissioner of Police to take removal action in the case of Ms Moran was harsh, oppressive or unfair: McKay v Commissioner of Police [2006] WASC 189; (2006) 155 IR 336.  It is up to Ms Moran to establish that it was harsh, oppressive or unfair. 

35      Whether the decision of the Commissioner of Police to take removal action in the case of Ms Moran was harsh, oppressive or unfair is to be judged objectively.  While Ms Moran’s appeal, and her evidence, shows that she considers her removal to be harsh, oppressive and unfair, the issue is not decided by her subjective view.  Any harsh effect on her is relevant but of course not conclusive.

36      Ms Moran’s grounds of appeal address ‘harsh’, ‘oppressive’ and ‘unfair’ separately, however the reasons why Ms Moran says her removal was ‘harsh’ overlap with the reasons why she says it was ‘unfair’.  In both grounds she refers to:

• her length of service,
• her illness which was proven to be the result of her service as a police officer, and
• the fact that her removal was without acknowledgement of her service except for the payment of one month’s wages. 

37      A separate, but related, reason Ms Moran says her removal was unfair is that she was sacked after becoming ill when her illness resulted from her job.

38      Ms Moran’s grounds why she says her removal was harsh or unfair may be considered together.  Her ground for saying that her removal was oppressive may be considered separately.

39      Without limiting the matters to which the Commission is otherwise required or permitted to have regard in determining the appeal, the Act in s 33Q(4) requires the Commission to have regard to —

 (a) the interests of Ms Moran; 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.

40      The interests of Ms Moran include the matters arising out of her grounds of her appeal and I now consider them.

Grounds of appeal – whether harsh or unfair

41      These two grounds essentially are that it was harsh or unfair that Ms Moran was removed due to a work-caused illness after 24 years’ service without any acknowledgement of her service except the payment of wages for a month upon removal. 

42      The facts within those grounds are not disputed: Ms Moran was removed due to a work‑caused illness which meant that she could no longer work as a police officer; at the time of removal, she did have 24 years’ service; she received no acknowledgement of that service and she received one month’s wages upon removal. 

43      If the decision about whether Ms Moran’s removal was harsh, oppressive of unfair was to be decided only on those facts, her task would be more straightforward.  There is, of course, far more to an objective judgment of whether Ms Moran’s removal was harsh or unfair than just that Ms Moran was removed due to a work-caused illness after 24 years’ service without any acknowledgement of her service except the payment of wages for a month upon removal. 

44      It is convenient to use headings to identify the points in Mr Moran’s submissions.

Removal

45      The ground is that it cannot ‘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.’  Ms Moran could no longer perform the duties of a police officer from the time she commenced paid sick leave on 18 January 2013, although it is not entirely clear from the evidence when she commenced to suffer from chronic PTSD and a Major Depressive Disorder.  Ms Moran remained on paid sick leave from then until her removal on 17 July 2014. 

46      Therefore, Ms Moran was not removed from the time she could no longer perform the duties of a police officer but 17 months later.  For that 17 months she was on sick leave and was paid her wages.  The period of paid sick leave she received was a total of 2,334 hours and amounted to $100,828 in payments to her over that period. 

47      Further, Ms Moran does not dispute the fact that she was no longer fit to perform the duties of a police officer.  Retaining her for a longer period would not result in her eventually becoming fit to return to work.  She accepts the reason for her removal (Appellant’s Rejoinder, 21 October 2014 at 24).  She also recognises, correctly in my view, that the Commissioner of Police is not required to keep indefinitely an officer who can no longer perform any of the duties of a police officer.  This is consistent with the conclusion reached by the Commission in an earlier appeal under s 33P of the Act: Jones v Commissioner of Police ([2007] WAIRC 00440 at 70) where the view of Fielding C was endorsed when he said in Deborah Gay Batchelar v Skybus (1983) 63 WAIG 2244:

An employer is not obliged to keep the former position open indefinitely, but only for a reasonable time.  In considering the question of fairness or 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.

48      Mr Moran submits that Ms Moran should not have been removed, and should have been retained as an officer, until there are arrangements agreed between the state government and the WA Police Union for compensation to be paid to ill officers when they are removed.  However, on the material presented to the Commission, discussions regarding a compensation scheme for ill officers when they are removed have been occurring for some time and there is no indication that they will result in a scheme of compensation at any definite time in the future.  Mr Moran’s submission would mean the Commissioner of Police would have to retain Ms Moran indefinitely when he is not required to do so. 

49      Once it is recognised that the Commissioner of Police is not required to keep Ms Moran indefinitely, the ground that it cannot ‘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’ loses considerable force. 

Comparison with others

50      Ms Moran says her removal was harsh in comparison with another constable who can no longer perform his duties due to illness and who will remain in the WA Police until he receives an ex gratia payment.  

51      The Commissioner of Police confirms that the other constable has been retained pending determination of his ex-gratia payment but says that his circumstances are exceptional and distinguishable from Ms Moran’s circumstances.  In the view of the Commissioner of Police, Ms Moran still has the capacity to work in the future whereas the other constable will never work again.  It does not set a precedent, and each case has to be considered on its own merits. 

52      The circumstances of the making of a request for an ex gratia payment for the other constable are not known to the Commission however it is a request that is before the Attorney General.  Ms Moran does not have a request for an ex gratia payment before the Attorney General. 

53      Ms Moran’s response to the NOITR headed ‘Notice of Appeal’ (Respondent’s Answer, attachment 5 at p7) did include a request for an ex gratia payment:

I would therefore request the withdrawal [of] 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 July1990 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.

54      Ms Moran admitted in cross-examination that this request was to the Commissioner of Police but she believed the Commissioner could forward it on.  It is not for the Commissioner of Police, and not even for the Minister for Police, but for the Attorney General to grant an ex‑gratia payment.  Ms Moran has not made a request to the Attorney General; therefore the submission that Ms Moran has been treated unfairly compared with the other constable because she was not retained pending determination of an ex‑gratia payment for her is not made out. 

55      Ms Moran also submits she has been treated unfairly in comparison with another medically retired constable however the response of the Commissioner of Police at 32 is that this constable was medically retired prior to any ex-gratia payment being finalised; consequently, Ms Moran has been treated the same as this constable.  The Commissioner of Police says that like this constable, it is open to Ms Moran to apply to the Attorney General at any time for an ex-gratia payment.  Ms Moran’s submission is not made out. 

56      Ms Moran is able to apply to the Attorney General for an ex‑gratia payment, however the Commissioner of Police is not obliged to retain her while this occurs. 

57      For those reasons, the ground that it cannot ‘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’ is not made out.

The Use of Section 8 to remove Ms Moran

58      Ms Moran was removed under s 8 of the Act which Mr Moran describes as a ‘flawed process’.  Mr Moran made a spirited attack on the use of s 8 in her case, largely because it is the section used to remove ‘miscreants, breakers of rules and those of criminal bent’: to remove sick and injured officers under such a provision ‘is demeaning and destructive of a constable’s dignity’; it is ‘an abnormal treatment of the citizens' constables and quite unexpected in our society as well as being cruel punishment for becoming ill because of her duties’.  His submission is that s 8 of the Act is an ‘unfair law’ and the ‘stigma’ attached to the use of s 8 would have been avoided if Ms Moran had been removed using s 11 of the Act. 

59      Mr Moran submits that his criticism of the use of s 8 in Ms Moran’s case is supported in the Report on Part IIB of the Police Act 1892 Pursuant to the Review Conducted Under s 33Z of the Act (24 February 2006, Legislative Council Tabled Paper No 1171).  The Report notes (at 23) that the genesis of a loss of confidence action is a complaint or information which goes to the issue of a member’s suitability to perform the duties to the standard demanded.   At 65, the Report notes that it would be disappointing to think that s 8 could be used to dispose with the services of a member of the WA Police injured in the course of his or her duties and who is no longer able to perform policing duties.  It states that matters of medical fitness and the capacity to perform duties are health and welfare issues which should not find their resolution under Part IIB of the Act.

60      In reply, the Commissioner of Police acknowledges that the process to be followed in Part IIB of the Act, other than for the extensive loss of confidence process set out in reg 6A02 to reg 6A08, is the same regardless of whether the removal is for integrity reasons or medical reasons but emphasises that removal under s 8 is not intended to attack Ms Moran’s integrity; it is simply the process of removing a police officer from office once the medical board has made a finding that they are no longer fit for duty.  It is a managerial decision rather than a finding of guilt.

61      It is significant that Ms Moran’s grounds of appeal are not that her removal was unlawful but that her removal was harsh, oppressive or unfair.  To the extent that Mr Moran made submissions that the use of s 8 was unlawful, the submissions are not relevant to Ms Moran’s appeal and cannot be considered. 

62      Even if it was to be considered, the power in s 8 is merely a power to remove.  It was not argued that the language of s 8 does not permit the removal of an officer who can no longer perform the work of a police officer due to work caused illness, and I proceed on the basis that the language of s 8 does permit it. 

63      The comment in the Report above that ‘matters of medical fitness and the capacity to perform duties are health and welfare issues which should not find their resolution under Part IIB of the Act’ is a comment on the ‘loss of confidence’ process under Part IIB of the Act.  Before s 8 can be used, the Commissioner of Police is required to lose confidence in the member's suitability to continue as a member, having regard to the member's integrity, honesty, competence, performance or conduct.  In my view, Ms Moran’s appeal has not shown that the Commissioner of Police was wrong to use s 8, nor that Ms Moran’s removal was harsh or unfair because it was used.

Loss of confidence

64      It is the loss of confidence requirement in s 33L(1) that Ms Moran refers to in her evidence that caused her to feel a loss of dignity when she was removed only because she is permanently ill through a work caused illness and cannot resume duty as a police officer.  It is that the Commissioner of Police loses confidence in the suitability of Ms Moran to continue in the WA Police when she has long and unblemished service and, through no fault of hers, finds herself unable to return to work.

65      The Commissioner of Police submits that the issue as to whether there is a ‘stigma’ attached to the loss of confidence process is not part of the grounds of appeal.  In my view, the loss of confidence process is an inherent part of Ms Moran’s removal and I am prepared to consider it as part of why she says her removal was harsh or unfair. 

66      That there is a loss of dignity is supported by the comments made by the Minister for Police at the WA Police Union 2013 Annual Conference reported in the Police News.  The Minister is reported as saying that she would overhaul the process of removing medically unsound officers:

‘I believe we can do that better but I don’t believe that Officers who are medically unfit should have to go through the humiliation of a loss of confidence process.  In addition, the introduction of medical expenses for work-related injuries for retired police officers has shown we support those Officers who left the Agency’s employment.’

67      The Minister’s comments are not about Ms Moran’s removal; they are about medically unfit officers having to go through a loss of confidence process.  This appeal is not about medically unfit officers having to go through a loss of confidence process.  It is about Ms Moran’s removal and although the process of removal is the same whether it is commenced due to medical retirement or otherwise, I do not agree that in Ms Moran’s case the loss of confidence process, viewed objectively, made her removal harsh or unfair. 

68      This is because in her case the NOITR is headed ‘Removal on medical grounds’.  It makes clear that her illness is the only reason the Commissioner of Police is not satisfied that Ms Moran is able ‘to continue to perform’ the duties of a police officer. 

69      The removal notice (p 52) is also headed ‘Removal on medical grounds’ and says the reason the Commissioner of Police does not have confidence in her ability to continue is by reason of her PTSD and Major Depressive Disorder. 

70      Further, the extensive loss of confidence process set out in reg 6A02 to 6A08 did not apply in Ms Moran’s case because removal action was taken when the medical board reported under reg 1402(4) that she was unfit for further active service. 

71      Furthermore, there is no suggestion that the Commissioner of Police lost confidence in Ms Moran for any reason going to her integrity, honesty, competence, poor performance or conduct in the work she had performed as a police officer over her long service.  The Commissioner of Police did lose confidence in her suitability to continue as a police officer, but it was because of her PTSD and Major Depressive Disorder. 

72      On the evidence, Ms Moran ended her service with the WA Police with her integrity, her honesty, her competence, her past performance as a police officer and her conduct intact. 

Whether Section 11 should have been used

73      Mr Moran’s submission, and Ms Moran’s evidence, is that there would have been no loss of dignity if her removal had been under s 11 of the Act.  Ms Teoh, for the Commissioner of Police, correctly points out that it is the use of s 8 which leads to the right of appeal in s 33P and which is an important safeguard against s 8 being used harshly, oppressively or unfairly; there is no such right of appeal attaching to the use of s 11 of the Act. 

74      Also, to the extent that Ms Moran believes her removal was harsh because her removal was accompanied by a payment of only one month’s wages, s 11 of the Act would not have resulted in any payment to her at all because it does not prescribe any payment to be made to a removed officer.  Neither does s 11 permit the Minister for Police to consider whether there are exceptional circumstances to extend the payment beyond one month to a maximum of 6 months.

75      In my view, the issue of the use of s 11 is not an issue relevant to the determination of the appeal.  The issue to be decided in the appeal is whether the decision of the Commissioner of Police to take removal action in the case of Ms Moran was harsh, oppressive or unfair.  Ms Moran was not removed under s 11 of the Act.  Whether if she had been removed under s 11 her removal would not have been harsh or unfair is hypothetical.  It does not of itself help to decide whether Ms Moran’s removal under s 8 was harsh, oppressive or unfair. 

76      Ms Moran has not shown that the decision to remove her is harsh or unfair by reason of its timing, nor by comparison with the circumstances of two other officers, from the use of s 8 nor from the loss of confidence process itself.  

Removal was without any acknowledgement of her service …

77      It is a fact that the Commissioner of Police did not acknowledge Ms Moran’s service.  On the material in this appeal, there is no reason provided as to why he did not do so.  He could have done so and, in consideration of Ms Moran’s service, should have done so.  It is long service.  It was a significant part of Ms Moran’s life and a significant length of time for her to have served the public of WA in a difficult and stressful and, at times from her evidence, thankless but essential job. 

…except the payment of wages for a month upon removal

78      Ms Moran has pointed to the one month’s payment to her upon her removal as a completely inadequate measure of both her worth after 24 years of service and her removal which was due to no fault on her part. 

79      This payment is prescribed by s 33M of the Act and it is helpful to set it out:

33M. Maintenance payment

(1) If removal from office occurs by or as a result of removal action taken in accordance with section 33L, the member is entitled to receive a maintenance payment for the period of 28 days after the day on which the member is removed.

(2) In relation to a period after the 28 day period referred to in subsection (1), the Minister may, in exceptional circumstances, direct that a maintenance payment shall be paid to the member for a specified period.

(3) For the purpose of subsection (2), the specified period is such period not exceeding 6 months as is specified by the Minister but in any event ending on the day any appeal instituted under section 33P is determined by the WAIRC.

(4) Any maintenance payment is to be calculated on the basis of the salary of the member at the time of removal from office.

80      During the hearing, and in some documents, the payment was sometimes referred to as compensation.  It is not prescribed as such.  It is prescribed as a maintenance payment.  Its purpose, as described in the Explanatory Memorandum to the Police Amendment Bill 2002 and by Ms Teoh at ts 294/295, is to address what had been seen prior to the amendment as an incentive for a police officer to appeal a recommendation that he or she be removed because they continued to be paid while their appeal was determined; as a consequence of the change made in 2002, a removed officer will no longer be paid during the appeal process and the one month payment was prescribed instead. 

81      Additionally, it provided for the Minister for Police, in exceptional circumstances, to direct that the maintenance payment be paid for a specified period not exceeding six months and ending on the day any appeal is determined. 

82      The Commissioner of Police points out, correctly, that under the Act, Regulations and industrial agreement there is no other provision which provides for the Commissioner of Police to grant compensation for removal on medical grounds.  He submits that for that reason the 28 day payment must be seen as being fair: the entitlement to the payment is prescribed by Parliament and every medically retired police officer receives the same payment. 

83      It is correct to say that any officer who is removed due to medical incapacity is entitled to receive the same payment, however it is not a payment made only to an officer who is removed due to medical incapacity, and it is not a payment made because they have been removed due to medical incapacity.  In fact any officer who is removed under s 8 is entitled to receive the same payment. 

84      Importantly, it is not a payment ‘for a readjustment into society’ as Mr Moran described.  Nor is it an acknowledgement of her service or a measure of Ms Moran’s worth after 24 years of service.  This is important because to the extent that Ms Moran’s appeal is based upon her understanding that it was those things, it is based upon a misunderstanding.  The ground of appeal is that her removal 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’.  It is not an insult to Ms Moran because it is not at all related to Ms Moran’s circumstances.  It cannot be referred to as an inadequate compensation payment because Ms Moran does not have an entitlement to compensation for her removal for medical incapacity, however it is open to Ms Moran to request the Minister for Police under s 33M(2) to extend the one month payment paid to her.  She has not done so, although she is still able to do so. 

85      There was much in Mr Moran’s submission about the need for a compensation scheme in WA for police officers who are removed due to medical incapacity.  Mr Moran provided details of the compensation schemes in other States at the Commission’s request. 

86      Mr Moran tendered a statement made by the Commissioner of Police reported in the Police News August 2013 saying that ‘the system we have got at the moment is not fair on the Officers who are sick’ and that ‘…there needed to be a compensation scheme in place for Officers who were ‘broken’ at work’. 

87      The Commissioner of Police responded in the Reformulated Reasons at 48 and 49 that his statement needs to be considered in the context in which it was made.  He is concerned about the increasing number of non-operational police officers in the agency and the need for more police officers on the frontline.  Consequently, while he acknowledges that there are a number of issues with the system, he does not accept that the process by which Ms Moran was removed was unfair and points out that Ms Moran was treated the same as other officers in similar circumstances in accordance with the process set out in legislation.  The Commissioner of Police submitted in the Reformulated Reasons at 38 that while there may be a perception held by some that the process is unfair, he is nevertheless bound to follow that process. 

88      In my view the Commissioner of Police is bound to follow the process.  It is the procedure which the Parliament has provided for the removal of police officers.  He is not free to depart from that procedure.  The Act does not provide for the Commissioner of Police to pay compensation to Ms Moran when she is removed.  Both the Commissioner of Police, and this Commission for that matter, must apply the law of the land. 

89      For that reason, the part of the ground that Ms Moran’s removal was harsh or unfair because the payment of wages to her was only one month’s wages is not made out.

Removal was for a Job‑Caused Illness

90      The additional part of Ms Moran’s grounds of appeal is that her removal was unfair in that she was sacked after becoming ill when her illness resulted from her job.  This ground would have greater force if Ms Moran had been removed when she first commenced sick leave.  The fact that she was not removed until 17 months later, and that her past and future work-related medical expenses are paid, means it loses much of its force as ground of appeal.  This ground is not made out. 

Grounds of appeal – whether oppressive

91      In relation to whether her removal was oppressive, Ms Moran says she was obliged to challenge the Commissioner of Police as to the validity of his decision.  As this ground of appeal is in Ms Moran’s response to the NOITR, I understand it to refer to the intention of the Commissioner of Police to remove her.  The ‘challenge’ was to respond to the NOITR. 

92      The ‘challenge’ is the opportunity provided to Ms Moran under the Act to respond to the NOITR.  It is a necessary part of a fair process that before the Commissioner of Police acts upon his intention, he gives her an opportunity to show why he should not remove her.  It is not of itself a reason why the decision to remove Ms Moran is oppressive. 

93      Ms Moran may have found it oppressive to her to have to respond given her medical circumstances, but it is a step in a process which gave her an opportunity to be heard before the decision was made.

94      I accept too that when Ms Moran was required to produce sick leave certificates and to attend subsequent medical requirements and examinations, she was placed in a situation where she had to comply with the requirements of WA Police.  However those requirements are lawful and reasonable from an administrative point of view.  

95      The ground that the decision to remove Ms Moran is oppressive is not made out.

Other matters not in the grounds of appeal but raised in submissions

96      The Commission can only decide Ms Moran’s appeal on the grounds she set out in her notice of appeal.  When she wrote her notice of appeal, she was able to appeal on any grounds she thought appropriate which would show that the decision to remove her was harsh, oppressive or unfair.  Having chosen the grounds, they become the only reasons she can argue why the decision to remove her was harsh, oppressive or unfair.  They are the appeal.  The only submissions Mr Moran may relevantly make, and the only submissions the Commission may validly consider, are submissions within those grounds. 

97      Any submission made by Mr Moran not within those grounds cannot be relevant to the appeal that has been made.  The Commission cannot take an irrelevant submission into account. 

98      The submissions presented by Mr Moran on his daughter’s behalf were wide ranging and in some instances raised an issue not within a ground of appeal.  I have read all the submissions and appreciate the sincerity with which they were made.  For that reason only, I now refer briefly to them. 

99      There is no ground of appeal that the reason why the decision to remove Ms Moran was harsh, oppressive or unfair is because there is no longer a common law constable in the WA Police Force.  His submissions about whether police officers are employees, and about the history and concept of a common-law constable are not part of the appeal Ms Moran has made.

100   Mr Moran’s submissions that s 8 of the Act is an unfair law, and that a ruling under that law can be ignored, likewise does not arise from a ground of appeal.  In any event, the Commission is a quasi-judicial tribunal which deals with industrial matters and it must apply the law as it stands.  Issues regarding morals and ethics and the law, and the ‘need for a judicial forum to deny the power of a law that breaches the moral and ethical standards of a society it purports to represent’, which were part of Mr Moran’s submissions, are broad and beyond the scope of the appeal.

101   Mr Moran submitted much material regarding the duty of care owed to officers by the Commissioner of Police.  Mr Moran is correct that the Commissioner of Police owed Ms Moran a duty of care under the Occupational Safety and Health Act 1984 from 3 January 2004 when that Act was amended.  However, as Ms Teoh correctly submitted, the grounds of appeal do not allege the Commissioner of Police breached his duty of care to her.  It is not an issue which arises in her appeal and cannot be considered.  It is not disputed that Ms Moran’s illness was work-caused.

Conclusions

102   For the reasons given above, Ms Moran’s grounds of appeal are largely not made out.  She has shown that that although she had 24 years’ service the Commissioner of Police did not acknowledge her service or length of service.  It was submitted that there is no requirement for the Commissioner of Police to acknowledge Ms Moran’s service or length of service and this is correct.  The Commissioner of Police did follow the Act and it is not suggested that the Commissioner of Police did not do so. 

103   However the removal of an officer can be harsh, oppressive or unfair even though the Commissioner of Police correctly follows the Act.  Whether an officer’s removal is harsh, oppressive or unfair will depend upon a consideration of the circumstances of the case including the interests of the officer and the public interest which is taken to include the importance of maintaining public confidence in the integrity, honesty, conduct and standard of performance of members of the Police Force and the special nature of the relationship between the Commissioner of Police and members of the Force.

104   It was in Ms Moran’s interest that the Commissioner of Police acknowledge her service and length of service.  On the evidence, the lack of acknowledgement is a part of the removal process which resulted in her feeling she had been worth ‘nothing’.  Objectively, the service and length of service of a long serving police officer who is being removed through no fault of their own ought to be acknowledged.  The work Ms Moran performed as she outlined in her evidence is of importance for the community she served.  She had faced many challenging and difficult issues.  Ms Moran’s service was worthy of acknowledgement.  However the NOITR and the notice of her removal were formal and impersonal. 

105   The public interest which the Commission is required to take into account includes the importance of maintaining public confidence in the integrity, honesty, conduct and performance of members of the Police Force.  It is undoubtedly correct, as the Commissioner of Police submits, that it is important that he maintains public confidence in WA Police and remain confident in his officers’ suitability, having regard to the special nature of the relationship between him and members of the WA Police, and it would not be in the public interest for him to retain on paid sick leave officers who are permanently unfit for duty for an indeterminate period of time. 

106   Although Mr Moran submitted that it adds ‘insult to the injury’ for the Commissioner of Police to declare that Ms Moran’s removal was in the public interest, saying that her removal was manifestly not in the public interest as her condition remains for the rest of her life, it nevertheless is important that the public has confidence in the ability of police officers to perform the work of the police and the Commissioner of Police does have a duty to maintain that public confidence. 

107   The public interest in maintaining the public confidence in the performance of members of the Police Force still would be met even if Ms Moran’s removal had been done with a proper recognition of her service and length of service.  The Commissioner of Police could have referred to her service and length of service in the NOITR or the notice of removal or in a separate letter to her.  

108   On the evidence in this appeal, there is much to be said for the statement in the Report that matters of medical fitness and the capacity to perform duties are health and welfare issues which should not find their resolution using the loss of confidence process.  It is not appropriate for it to be used in relation to an officer with long and faithful service to the WA Police and the community it serves who can no longer perform the work required due only to a work caused illness.  Nevertheless, for as long as these issues do find their resolution under Part IIB of the Act, a letter or a statement from the Commissioner of Police which appropriately recognises the past service of an officer removed through no fault of their own for medical reasons may well lessen the ‘humiliation’ of the loss of confidence process.   

109   Similarly, although the Commissioner of Police did consider Ms Moran’s response to the NOITR, he did not respond to any of the matters raised in itMs Moran; he merely noted that she did not demonstrate she was fit to perform the duties of a police officer.  Ms Moran’s response was 8 pages long and in my view it merited at least a response to the matters she raised. 

110   These two issues however do not lead to the conclusion that Ms Moran’s appeal itself is made out.  They are a consideration, but are not of themselves determinative of Ms Moran’s appeal.  Overall, the grounds of appeal are otherwise not made out.  The Commissioner of Police was not obliged to retain Ms Moran indefinitely and on the evidence, Ms Moran would still have been removed even if the Commissioner of Police had responded to the matters in her response to the NOITR; these have been largely raised and considered in this appeal and there is nothing to suggest that if the Commissioner of Police had responded to those matters, Ms Moran would not have been removed.  Balancing all of the evidence, the failure to recognise Ms Moran’s service and length of service, while inconsiderate, does not establish that the decision to remove Ms Moran was harsh oppressive or unfair.

111   Therefore her appeal is dismissed.  That is not to say that the removal of an officer who is unable to return to work due to a work-caused illness can never be harsh, oppressive or unfair.  Each case will depend upon its own circumstances and the grounds upon which the appeal is made. 

KENNER C:

112   Police officers in this State are not regarded as employees at common law, or for the general purposes of industrial and employment legislation, unless specifically provided.  This has consequences.  One of them, which has been highlighted in the present case, is that police officers injured in the course of their employment, resulting in either a physical or psychiatric injury, are not, as the law presently stands, entitled to workers’ compensation, as all other employees are.  They have other arrangements in place.  Moreover, it has been the practice that for those police officers deemed medically unfit to continue to serve the community they are subject to a medical retirement process under the Regulations 1979. They may be ultimately removed from the Police Force by the Commissioner of Police, under s 8 of the Act.

113   Ms Moran was appointed as a police constable in July 1990.  She subsequently became a senior constable.  Ms Moran was based at the Geraldton Police Station, which is the town where she lives.  On 27 March 2013, after a period of absence from the workplace, Ms Moran’s treating medical practitioners concluded that Ms Moran was not able to return to work as a police officer in the foreseeable future, as a consequence of her illness. Medical retirement was proposed.  Whilst Ms Moran initially hoped to be able to return to work as a police officer, Ms Moran came to accept the opinion of her treating doctors.

114   On 21 June 2013, the Commissioner of Police’s consulting psychiatrist formally diagnosed Ms Moran with PTSD (Chronic) and Major Depressive Disorder (Chronic) and concluded that Ms Moran met the established criteria for medical retirement. Medical reports obtained by the Commissioner of Police, from Ms Moran’s treating psychiatrist and general practitioner, confirmed the Commissioner of Police’s conclusion that Ms Moran was not fit for duty as a police officer, either then or in the future.  Ms Moran did not return to work as a police officer but remained on paid sick leave.

115   Later, in March 2014, a medical board was established under reg 1402 of the Regulations. The medical board concluded that based on the material before it, Ms Moran was medically unfit for work as a police officer and that for her to return to work as a police officer, would aggravate her condition.  None of the medical diagnoses, nor the opinion of the medical board, were disputed by Ms Moran. As a result of the medical board determination, the Commissioner of Police commenced the process for removal of Ms Moran under s 8 and Part IIB of the Act. On 19 May 2014, the Minister of Police approved the Commissioner of Police’s request for the removal of Ms Moran from the Police Force.

116   The removal action by the Commissioner of Police is now challenged by Ms Moran, as being harsh, oppressive and unfair. The grounds of Ms Moran’s appeal are as follows:

The reasons why the decision was harsh, oppressive or unfair 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.

117   Ms Moran originally sought the following relief:

The relief sought 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.

118   However, during the course of the hearing of the appeal, Ms Moran indicated that she no longer sought to be reinstated but rather, seeks compensation for loss.

119   At the outset of these reasons I wish to observe what this appeal is not about.  A substantial portion of the submissions of Ms Moran, and documents produced by her, were directed to the issue of compensation schemes in other Police Force jurisdictions, available to officers who are medically retired or injured in the course of duty and the unfairness of the absence of such a scheme in this jurisdiction. However, the present appeal concerns whether the removal of Ms Moran was, within the statutory framework of the Act in Part IIB, harsh, oppressive or unfair. The Commission can only be concerned with the specific circumstances of Ms Moran and her removal from the Police Force in this State.

Interpretation of sections 8, 11 and 33L of the Police Act

120   An issue that arose during the course of the hearing of this appeal was the scope of s 8 of the Police Act and specifically, whether the Commissioner of Police can rely on it for the purposes of the removal of a police officer on the grounds of medical retirement.

121   Ms Moran contended that s 8, when read with the relevant provisions of Part IIB were not able to be used by the Commissioner of Police to remove a police officer on the grounds of medical retirement. If an Officer is to be removed on these grounds, then Ms Moran submitted that s 11 of the Police Act should be used instead.

122   It is convenient to set out the relevant statutory provisions now. The most apposite are ss 8 and 33L of the Police Act which are in the following terms:

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).

(3) Subsection (2) does not apply where a person is removed from a commissioned office to be appointed to another commissioned office so long as that appointment —

(a) is to an office at a level not less than the level of the office from which the person was removed; or

(b) is made with the consent of the person.

(4) Subsection (2) does not apply to the removal of a police probationary constable.

…

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.

(2) If a notice is given to a member under subsection (1), the member may, before the expiration of the period of 21 days after the day on which the notice is given or such longer period as is allowed by the Commissioner of Police, make written submissions to the Commissioner of Police in respect of the grounds on which the Commissioner has lost confidence in the member’s suitability to continue as a member.

(3) After the end of the period referred to in subsection (2), the Commissioner of Police shall —

(a) decide whether or not to take removal action; and

(b) give the member written notice of the decision.

(4) The Commissioner of Police shall not decide to take removal action unless the Commissioner —

(a) has taken into account any written submissions received from the member under subsection (2) during the period referred to in that subsection; and

(b) still 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.

(5) If the Commissioner of Police decides to take removal action —

(a) the notice under subsection (3)(b) shall advise the member of the reasons for the decision;

(b) except to the extent that the regulations otherwise provide, the Commissioner shall, within 7 days of giving the notice of the decision under subsection (3)(b), provide to the member a copy of any documents and make available to the member for inspection any other materials that were examined and taken into account by the Commissioner in making the decision; and

(c) the removal action may be taken when, or at any time after, the notice under subsection (3)(b) is given.

123   By the Police Amendment Act 2003, the Police Act was substantially amended to introduce subsections (2) to (4) in s 8 and a new Part IIB was also inserted, providing for the process of removal of police officers under s 8 and an appeal to the Commission from such removal, on grounds that the removal action is harsh, oppressive or unfair. The Commissioner of Police’s power of removal under s 8 can only be exercised, when the Commissioner of Police loses confidence in a police officer’s suitability to continue as a member of the Police Force, on the grounds specified in s 33L(1).

124   Ms Moran made a number of submissions in relation to s 8. At a broad level, Ms Moran contended that s 8 and the corresponding provisions of Part IIB should never be used for the removal of a sick or injured police officer who has suffered sickness and injury as a result of their duties. It was contended, in reliance on principles of ethics and morality, that the law as made by the Parliament of this State, on behalf of the citizens of the State, must be morally and ethically sound.  No court or tribunal should uphold a law that fails to meet basic standards of ethics and morality. In the case of s 8, Ms Moran put it this way in her submissions:

The use of section 8 reflects the separation from the morality of that of our citizens.  It lacks morality and it harms the public interest and the destructive, serious harm suffered by the sick and injured constables, such as the appellant, who are victims of this appalling use of section 8 provide evidence of the immoral law.  The majority of the general citizenry would be horrified at the circumstances surrounding this claim by the appellant.  However, in their widespread ignorance the general citizenry are unaware of this lack of morality and ethics and - perpetrated in their name.  In this case the appellant who has suffered in her service the people of Western Australia.

There are three elements to this lack of morality and ethics perpetrated on the appellant under section 8.  The first law, as defined, is intended to at the fundamental level, reflect and enforce the moral and ethical standards of a civilised society; in this case the citizens of Western Australia.  The removal of the appellant from her employment under section 8 which places it in the company of villains and rogues and vagabonds, be they criminals, corruptors or abusers of their office is morally reprehensible and ethically wrong.  West Australians live in a moralless society and expect their law to reflect their moral standards; one of which is to look after fellow citizens when they’re subject to illness or injury caused by their employment.

The payment of 28 days wages to assist the appellant to readjust to society and her removal does - does not reflect our society’s morals and ethical standards and there is no indication of Government honesty in addressing this immoral situation.  The immoral behaviour by all our - by all our Governments by their deliberate actions to ensure the lack of protection of removed constables, as the appellant, loom large when a Bill proposed to protect an injured constable, but was then denied progress in the parliament and lapsed because of want of support.  The Bill was number 159; Police Compensation for Injured Officers Amendment Bill 2006 and it was proposed by Mr Cowper MLA in the State Parliament of Western Australia in 2006 and without support the Bill lapsed on 8 July 2008.

125   Ms Moran contended that the primary purpose of s 8 and the relevant provisions of Part IIB are to give the Commissioner of Police the capacity to remove corrupt and unsuitable persons as police officers from the Police Force, as a management tool. The reference was made by Ms Moran to the Kennedy Royal Commission into corruption into the Western Australian Police Force. Ms Moran contended that the Royal Commission, which reported in 2004, observed that provisions such as s 8 of the Police Act should never be used to remove sick and injured Police officers from the Police Force. Ms Moran submitted that it was morally and ethically “bankrupt” for the Commissioner of Police to remove Ms Moran from the Police Force, because of a duty-caused injury, after 24 years of loyal and exemplary service, in accordance with her oath of office, protecting the citizens of this State, with nothing more than a 28 day maintenance payment on her removal.

126   Ms Moran further contended that the amendments to s 8 in 2003, by the introduction of the loss of confidence removal process, was being used by the Commissioner of Police to remove sick and injured Officers and was an abuse of law, because its objective is to get rid of sick and injured Police officers as cheaply as possible. Ms Moran also submitted that the Commissioner of Police failed to properly have regard to the matters raised by Ms Moran in her response to the NOITR and was dismissive of the issues raised by her.  Ms Moran submitted that:

The amendment of 2003 contained the Police Act 1892 and associated Regulations are therefore an abuse of the fair process as the removed constables are denied legal assistance.  And if suffering from PTSD, they are most unlikely to appeal.  Not because they feel they shouldn't, but simply they've had the stuffing knocked out of them and they lack the capacity to fight.  The appellant nonetheless is intent on presenting matters to the full extent, thereby reversing this likely of retreat by her, therefore I argue section 8 and associated parts of sections of the Police Act 1892 and related sections of the Police Regulations is a process that is abusive in law and it's process an abuse of the appellant.

127   And further, Ms Moran submitted:

The process of the law enacted leading to the autocratic decision by the respondent to declare, "I no longer have faith in the appellant to carry out her duties," and then with a contemptuous consideration of her appeal to him under the Police Act, the appellant was provided with no reply to the various matters contained in her appeal, but simply with the disdainful advice that her removal was not accepted - her appeal was not accepted and the process of her removal continued.  And I'll relate to that further on.

128   On her removal from the Police Force, Ms Moran submitted that she received no acknowledgment of her 24 years of loyal and exemplary service to the State.  This further diminished her dignity. Ms Moran contended that her removal under or through the s 8 loss of confidence process led to her feeling ashamed.  Ms Moran’s submission also was that not only has she suffered the indignity of the s 8 process, but also has lost her police career, through no fault of her own, because of an injury caused by her duty. She has also forgone some $1.3 million in future income and superannuation payments as a consequence.

129   For the Commissioner of Police, it was contended that s 8 and Part IIB of the Police Act encompass a removal by the Commissioner of Police on the grounds of medical retirement. The submission was that the reference to “performance” in s 33L(1) of the Police Act, in relation to the Commissioner of Police’s loss of confidence, encompasses the inability of a Police officer to perform their duties, for medical reasons. This is not a matter connected in any way with the integrity of the Police officer.

130   As to the argument put by Ms Moran to the effect that s 11 of the Police Act should be used in cases of medical retirement of Police officers, the Commissioner of Police referred to observations of the Commission made during the course of the hearing, that if so, then no right of appeal from a removal under s 11 exists. Thus, a Police officer may be worse off than the use of the s 8 procedure.

131   For the following reasons, in my opinion, s 8 and the corresponding provisions of Part IIB of the Police Act in this jurisdiction, encompass the removal of a Police officer on the ground of medical retirement.

132   In statutory interpretation, the starting point is to consider the language of the statute in its ordinary and natural sense:  The Amalgamated Society of Engineers v The Adelaide Steamship Company Limited (1920) 28 CLR 129 at 161-2. A provision in an Act must be construed in the context of the statute as a whole. At first blush, the terms of s 33L appear to be broad.  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… performance…”, the Commissioner of Police may provide a written notice.  The Macquarie Dictionary defines “performance” as “execution or doing, as of work, acts or feats”, “a particular action, deed, or proceeding”, “the act of performing” and “the way in which something reacts under certain conditions or fulfils the purpose for which it was intended”: The Macquarie Dictionary Online (at 22 May 2015).  The “Golden Rule” of statutory interpretation contemplates the modification of the literal meaning of the words used to overcome an error or defect perceived in the text: Pearce DC and Geddes RS, Statutory Interpretation in Australia (8th ed, 2014) 36-37.

133   Given it is not clear how wide the word “performance” is, it is useful to apply the contextual and purposive approaches to interpretation, which I outline below.

134   A starting point will always be a consideration of the ambiguous word in the context of the legislation as a whole. This involves considering the immediate context, such as the words of the section, the heading to Parts and Divisions and other nearby provisions, as well as the overall context such as the purpose clause, preamble, and where the section is located in the legislation.

135   Section 33L is about the Commissioner of Police losing confidence in a member’s suitability to continue. Section 33L is contained in Div 2 in Part IIB of the Police Act.  Division 2 is concerned with removal of members, and s 33L has the heading “Notice of loss of confidence to be given before removal action is taken”. This means that a notice is a preliminary step before removal action is taken.  I note that the short title of the Police Amendment Act, which introduced Part IIB, states it is “to provide a procedure for removing members of the Police Force and for dealing with appeals in relation to those removals”.

136   A notice of loss of confidence may be given if the Commissioner of Police does not have confidence in the Officer’s suitability to continue as a member, having regard to their performance: s 33L. “Having regard to” means that the Commissioner of Police must take into account “the member’s…performance” when making the decision as to whether he does not have confidence in the member’s suitability to continue, and give weight to “performance” as a fundamental element in making the decision. The weight to be given to “performance” is for the Commissioner of Police to determine, provided that the consideration of the matter is genuine. It provides discretion to the Commissioner of Police to weigh the significance of the performance issue: Pearce DC and Geddes RS, Statutory Interpretation in Australia (6th ed, 2006) 364-365.

137   I note that “confidence” is defined by the Macquarie Dictionary as “full trust; belief in the trustworthiness or reliability of a person”, “certitude or assured expectation” and “self-reliance, assurance, or boldness”. The apostrophe in “member’s suitability” means the member has to possess suitability. This must be construed to mean possessing suitability at the time of consideration by the Commissioner of Police of the Officer’s proposed removal under s 8. I do not consider that this section extends to the circumstance where an Officer may not then be suitable, but may be suitable at some time in the future.

138   The words “…having regard to the member’s integrity, honesty, competence, performance or conduct” appear throughout the Police Act in relation to the loss of confidence proceedings.  On receipt of a notice, s 33L(2) allows a member to make a submission to the Commissioner of Police in respect of the grounds of the loss of confidence in the member’s suitability to continue.  Following that period, the Commissioner of Police will then decide whether or not to take removal action. The Commissioner of Police can only decide to take removal action if he has taken into account the member’s written submissions and “still does not have confidence in the member’s suitability to continue as a member, having regard to the member’s performance…”

139   The power of removal in s 8(1) can only be exercised if the Commissioner of Police has complied with s 33L and removal action has not been revoked under s 33N.  Section 8 provides that a Police officer may be removed, and upon any vacancy by “removal, disability, or otherwise…” some other fit person can fill the position.  This section interacts and relates to s 33L, and refers to fitness and the creation of vacancies due to removal on the grounds of disability.

140   In determining this appeal, the Commission is to have regard to, among other factors, the public interest which is taken to include “the importance of maintaining public confidence in the integrity, honesty, conduct and standard of performance of members of the Police Force”: s 33Q(4)(b)(i).

141   It is important to understand the purpose behind the legislation to interpret the word “performance” in s 33L. It is the objective intention of Parliament in passing the legislation that concerns the Commission: Hall K, Legislation (2002) 86. The purposive approach involves preferring the construction that would promote the purpose of the legislation in all stages of the process of interpretation: Hall K, at 79; see Pearce DC & Geddes RS 8th ed at 38.  Section 18 of the Interpretation Act 1984 provides that:

18. Purpose or object of written law, use of in interpretation

In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.

142   This means that the Commission is required to prefer an interpretation of legislation that promotes the object over one that does not. The purposive approach requires looking at what the clause is intended to do, the preamble, the definition sections, and extrinsic material such as reports of Royal Commissions or Law Reform Commissions, committees of inquiry, any treaty or other international agreement that is referred to in the Act, any explanatory memorandum relating to the Bill containing a provision, and Second Reading Speeches made to a House of the Parliament by a Minister: The Honourable Justice S Crennan, ‘Statutes and the contemporary search for meaning’ (Paper presented at the Statute Law Society, London, 1 February 2010). (See too: Pearce DC & Geddes RS, 8th ed at 90, 99 and 116).

143   The use of extrinsic material in interpretation is dealt with in s 19 of the Interpretation Act 1984.  Extrinsic evidence can be used to confirm the ordinary meaning of words; determine the meaning of the provision if it is ambiguous or obscure; or if the ordinary meaning leads to a result that is manifestly absurd or is unreasonable.

144   Importantly, the Explanatory Memorandum in relation to the Police Amendment Bill 2002 at cl 6 provided that s 33L:

Sets out the procedure to be followed to remove a member where the Commissioner does not have confidence in the member's suitability to continue as a member having regard to the member's integrity, honesty, competence, performance or conduct. They are sufficiently broad to ensure that the Commissioner retains a wide managerial discretion to cause members to be removed where their suitability is in question. They are also broad enough to ensure the Commissioner is able to remove a member who is medically unfit to continue performing the duties of a member.

(My emphasis)

145   This is highly relevant to the present discussion as to whether ss 8 and 33L are broad enough to encompass the removal of an Officer on medical retirement grounds. The observations quoted above are entirely consistent with the continued application of s 8 and the process introduced by Part IIB to a circumstance of removal on the grounds that a Police officer has been declared medically unfit for duty.

146   The Explanatory Memorandum further provides that s 8:

Amends the power to remove members of the police force under section 8 of the Act by introducing a requirement to the effect that before a member can be removed from office under section 8 the Commissioner must have lost confidence in the member's suitability to continue as a member having regard to the member's integrity, honesty, competence, performance or conduct. Procedures for the removal are set out in section 33L, introduced by clause 6 of the Bill.

…

The ability to dismiss or discharge a member following conviction of a disciplinary offence under s23 of the Police Act 1892 remains unaffected.

147   The various Parliamentary debates in relation to the Police Amendment Act refer to the intended breadth of the loss of confidence removal provisions and that they were intended to confer on the Commissioner of Police a managerial tool. The loss of confidence provisions were not intended to be used for determining guilt or to punish officers.

148   Section 19(2) of the Interpretation Act 1984 provides that reports of Royal Commissions that are laid before either House of Parliament before the time when the provision was enacted may be considered in interpreting a provision.  In this respect, Ms Moran submitted that the “Report on Part II B of the Police Act 1892 pursuant to the review conducted under s 33Z of the Act” was the result of the Kennedy Royal Commission. However, not only did the Kennedy Royal Commission report in January 2004, after the Police Amendment Act took effect, but also the Royal Commission Report did not make any specific recommendations in relation to the operation and effect of s 8 and Part IIB of the Police Act. Thus, the Royal Commission Report is not relevant in determining the scope and purpose of s 8 and Part IIB. 

149   As to the Report under s 33Z of the Police Act, published on 24 February 2006, whilst some views were expressed about the suitability of the use of s 8 and Part IIB in cases of Officers incapacitated through injury, these matters are appropriate for consideration of future amendments to the Police Act, and are not relevant to its interpretation. 

150   Additionally, by Part VIA of the Regulations, regs 6A01 to 6A10 deal with the procedure to apply when a “complaint or other information is received by the Commissioner or the Assistant Commissioner concerning a member’s integrity, honesty, competence, performance or conduct”. A review officer is to be appointed to undertake an inquiry and to report to the Commissioner of Police.  Notably, by reg 6A05, apart from the requirements of s 33L of the Police Act, where a NOITR is to be issued by the Commissioner of Police, it is to set out the “particular conduct or behaviour on which the Commissioner’s loss of confidence is based”. 

151   Under reg 6A11, regs 6A02 to 6A08 do not apply where removal action is to be taken by reason of a medical board report that a Police officer is no longer fit for active service. In my view, this provision clearly indicates the intended application of s 8 and Part IIB of the Police Act to medical retirements, having regard to the plain meaning of “disability” in s 8. Also however, a clear distinction is drawn between those Officers who have committed an act of misconduct or engaged in poor behaviour, as set out in reg 6A05, and those to be medically retired, as contemplated by reg 6A11. That is, the Regulations themselves draw a distinction between those subject to removal for cause based on conduct and behaviour, and those subject to removal for reasons beyond their control in the case of incapacity through injury.

152   Having regard to the foregoing, I do not consider that it was the Parliament’s intention to narrow the meaning of “performance” in s 33L. This is not a situation where “performance” should be read down to give effect to Parliamentary intention: R v Young (1999) 46 NSWLR 681 at 687-8. Thus, I do not consider that it can be contended that the removal of a Police officer on medical retirement grounds under s 8 and Part IIB of the Police Act, assuming that the procedure for removal has been complied with by the Commissioner of Police, could be considered unlawful. Further, whilst I fully appreciate Ms Moran’s sense of grievance in the use by the Commissioner of Police of s 8 and Part IIB of the Police Act in her circumstances, given that it is the duty of the Commission to interpret and apply the legislation as made by the Parliament of the State, it is not open for the Commission to decline to do so, or to do so inconsistent with the Parliament’s evident intention, on the grounds that the legislation is said to be lacking in ethics or morality. That issue, if relevant, is ultimately for the Parliament to resolve.

153   Finally, as noted above, Ms Moran made a number of submissions about the scope of s 11 of the Police Act, to the effect that this provision should have been used instead in the case of the medical retirement of Police officers. We did not receive the benefit of comprehensive submissions on the point. As already mentioned, if s 11 was available to be used by the Commissioner of Police, then arguably Ms Moran would be worse off because no statutory right of appeal appears to be available from removal under s 11. Further, there is no provision for any maintenance or other payments to be made to a Police officer removed under this provision. However, it is unnecessary to take this matter any further in terms of the present appeal.

Consideration on the merits

154   There is little or no dispute as to the facts in this matter. Ms Moran was appointed as a Constable and took her oath of office on 23 July 1990. She worked as a Police officer in various locations throughout the State including the Perth metropolitan area. Ms Moran also was based in Newman in the northwest of the State, and Geraldton, where she spent the last 10 years of her career with the Police Force.

155   In 2007 Ms Moran took leave without pay for 12 months. This was described in her witness statement as a period needed to have a break from policing, in particular following the death of a colleague in Geraldton.  On her return to work Ms Moran described some of the situations that she had to contend with in front line policing and the stresses that this caused her. This included regularly dealing with violent offenders, domestic incidents, deaths and other stressful incidents. Ms Moran narrated how, with the passage of time and the accumulation of stresses resulting from this work, that she suffered an effective breakdown, leading to her leaving the Geraldton Police Station on or about 10 December 2012 and going on sick leave.  Ms Moran did not return to work.

156   Ms Moran described in some detail, the physical and emotional symptoms she experienced up to that time, and the problems it caused to her family and social relationships.  She says she now recognises that she was suffering, and continues to suffer, the effects of PTSD. Ms Moran described that since ceasing working as a Police officer, she has been on prescribed anti-depressant medication and although her outward appearance seems normal, she describes herself as still in an emotionally fragile state and suffers anxiety from pressures of life.

157   Whilst pursuing her recovery, Ms Moran said that the fact that she is no longer policing has helped her in this regard. 

158   On the Commissioner of Police’s sick leave system, Health and Welfare Services are notified if an Officer reaches a threshold of 80 hours continuous sick leave.  Ms Moran had reached this threshold by about 18 December 2012. The first contact from Health and Welfare Services to Ms Moran appears to have been on 18 December. The contact records kept by Health and Welfare Services were contained at pp 57-66 of the Commissioner of Police’s book of documents tendered as exhibit A. On 30 January 2013 Ms Moran informed Health and Welfare Services that she was under the care of her GP and the note reflects that the Health and Welfare Services’ role was explained to her. Ms Moran was to consider the use of the services.  Later, on 14 February 2013, Ms Moran’s case was referred to Ms Giannini, a Vocational Rehabilitation Consultant in Health and Welfare Services. Ms Giannini, in her evidence, described her role as involving the case management of ill or injured Police officers and staff. Part of her responsibilities is to assist in the return to work of Officers and staff.

159   On 26 February 2013, the record reflects that Ms Moran notified Health and Welfare Services that she was to be on indefinite sick leave from that time. Furthermore, the record reflects a notation that Ms Moran would not welcome contact from her workplace at that time.

160   Ms Giannini referred to a conversation she had with Ms Moran on 28 February 2013. Ms Moran’s note of the same conversation is at exhibit A at p 60.  Ms Giannini said that she spoke to Ms Moran on this occasion to introduce herself and to explain her role. Ms Moran informed Ms Giannini that she had been diagnosed with depression and was scheduled to see a psychiatrist, Dr Loke, in March. Ms Moran told Ms Giannini of her medication. Ms Giannini noted that Ms Moran told her of her break from service in 2007 and that she had reached a “bad state” by December 2012, but prior to this, was fully operational.  Ms Giannini testified that Ms Moran then told her in words to the effect “she had serious doubts about her ability to return to work at all and would consider medical retirement”.

161   According to Ms Giannini, she regarded the comment from Ms Moran about possible medical retirement as unusual, at such an early stage. Ms Giannini said she informed Ms Moran that she first needed to undergo treatment and her condition needed to be stabilised. The comment from Ms Moran as to medical retirement was the only factual issue in dispute. According to Ms Moran, she informed Ms Giannini in the conversation on 28 February that she did not wish to return to work “to get sick again”.  A note of a conversation to this effect was at exhibit 2.  Ms Moran testified that it was Ms Giannini and not her, who made a reference to possible medical retirement.

162   On 27 March 2013 further contact was made by Ms Giannini with Ms Moran.  Ms Moran’s note of this conversation appears at p 60 of exhibit A. In it, it is recorded that Ms Moran had told Ms Giannini that she had been told by both her GP and her treating psychiatrist, that they considered Ms Moran was not able to return to work “in the foreseeable future” and she should be medically retired.  The note further records a comment from Ms Moran to the effect that she feels no longer able to work effectively as a Police officer. At that stage also, Ms Moran was to provide Health and Welfare Services with a written consent to obtain her medical records from her treating doctors and Ms Moran also agreed to see the Commissioner of Police’s psychiatrist, Dr Piirto.

163   Subsequently, on 21 June 2013, Dr Piirto reported on her assessment of Ms Moran.  A copy of Dr Piirto’s medical report was at pp 30-33 of exhibit A.  Dr Piirto diagnosed Ms Moran with PTSD (chronic) and Major Depressive Disorder (chronic and in partial remission).  In her report, Dr Piirto concluded that Ms Moran showed some improvement with treatment and also based on a realisation that Ms Moran would not be returning to duty as a police officer.  Dr Piirto also noted that Ms Moran recognised triggers to her decline in mental health as a consequence of exposure to work as a police officer, and that further exposure to such stressors or triggers would only exacerbate her mental health deterioration. Dr Piirto also observed that “Senior Constable Moran is not motivated to consider engaging in any other role with WA Police. She has appropriate support from her GP and family members, as well as friends, in her decision”. Finally, Dr Piirto concluded that further treatment for Ms Moran, would not lead to her regaining capacity to work as a police officer.

164   A medical opinion was also sought and obtained from Dr Loke on 24 July 2013.  In his report, contained at pp 34-38 of exhibit A, Dr Loke concluded that Ms Moran was not able to go back to work as a police officer or be rehabilitated.  Dr Loke further concluded that Ms Moran may be able to undertake training for a different occupation other than policing, in the future. Ms Moran’s General Practitioner, Dr Buckley, also expressed the opinion on 30 July 2013 that Ms Moran was not able to ever return to work as a police officer (see p 39 exhibit A).

165   In January 2014, the Commissioner of Police requested that a medical board be convened under reg 1402(1) of the Regulations 1979. The letter from the Assistant Director Human Resources of WA Police, Ms Donaldson, requested that the medical board’s opinion be obtained as to whether Ms Moran was fit to undertake further active duties as a police officer.  A list of the main duties of a police officer was set out in the letter.

166   In response to the request, a medical board was convened on 11 March 2014.  The medical board, comprising three medical practitioners, concluded that Ms Moran was not fit to return to work for the WA Police (see p 14 exhibit A).  The medical board concluded that:

Since leaving work she has improved but still becomes anxious and defensive when she has contact with her former employment.  We feel if Susan attempted to return to the (sic) work for Western Australia Police it would heighten her emotional problems in spite of therapy.

Thus we feel Susan Moran is unfit for work within Western Australia Police however with time she should be able to cope in a non confronting environment working for another employer.

167   As noted above, Ms Moran did not dispute the opinions expressed by her treating doctors. Ms Moran also did not dispute the conclusions reached by the medical board.  However, I note that at the medical board hearing on 11 March 2014, Ms Moran provided a “Notice of Intent” that she intended to challenge her removal from the Police Force, under Part IIB. A copy of Ms Moran’s notice was at p 15 of exhibit A. As a consequence of the medical board finding, Ms Moran was served on 3 April 2014, with a NOITR under s 33L(1) of the Police Act, on medical grounds. The Commissioner of Police expressed the view that “I am not satisfied that you are able to continue to perform the duties of a police officer due to your Post Traumatic Stress Disorder and Major Depressive Disorder” (see p 51 exhibit A).  On 22 April 2014, within the 21 day period allowed by the Police Act, Ms Moran responded to the Commissioner of Police (see pp 16-23 exhibit A).

168   Despite the matters raised in Ms Moran’s reply to the NOITR, which largely reflect matters raised by her in these proceedings, the Commissioner of Police still maintained his view of a loss of confidence in Ms Moran’s ability to continue as a member of the Police Force, on the grounds of her PTSD and Major Depressive Disorder.  The Commissioner of Police then made a recommendation to the Minister for Police, for the removal of Ms Moran on medical grounds and Ms Moran was removed from the Police Force on 17 July 2014 (see pp 52-55 exhibit A).

169   On her removal, Ms Moran was paid a 28 day maintenance payment under s 33M of the Police Act in the sum of $5,253 and $36,887 in accrued leave entitlements. In the course of Ms Moran’s extended sick leave, from 18 January 2013 to 17 July 2014, Ms Moran was paid some $100,828. Ms Moran was paid $1,500 for her medical expenses under the Western Australia Police Officers Industrial Agreement and reg 1306 of the Regulations.  Any of Ms Moran’s work related medical expenses post her removal, are paid under the Police (Medical and Other Expenses for Former Officers) Act 2008.  Additionally, as a result of her disability, Ms Moran received some $200,000 from her superannuation fund. The effect of the Police (Medical and Other Expenses for Former Officers) Act is to treat former police officers injured in the course of duty, the same as any other employee injured at work and the terms of the Workers’ Compensation and Injury Management Act 1981, has application.

170   A principal contention of Ms Moran was that the Commissioner of Police breached his duty of care towards her in that he failed to take appropriate steps to prevent Ms Moran’s psychiatric injury.  Additionally, Ms Moran contended that the Commissioner of Police breached his duty of care to Ms Moran, by discarding her after 22 years of meritorious service, with nothing more than a 28 day maintenance payment, under s 33M of the Police Act. Part of this alleged breach of duty, was said by Ms Moran to be the Commissioner of Police’s failure, after Ms Moran’s period of leave without pay in 2007, to properly be alert to problems experienced by Ms Moran and to put in place steps to assist her.

171   Ms Moran referred to a considerable body of material in her submissions on the issue of occupational health and safety risks associated with work as a police officer.  It was also submitted by Ms Moran that a simple “checklist” for PTSD, used in the military, was available and could have been used by the Commissioner of Police to assist in detecting early signs of PTSD in police officers.  Ms Moran also referred extensively to various annual reports from the WA Police, and submitted that the statements by the Commissioner of Police about duty of care and health and safety matters, have not translated into concrete action to help police officers.  It was contended that there is no reference in these annual reports to PTSD, despite the existence of the condition being raised by the Western Australian Police Union of Workers in the past. A number of other submissions were made to the effect that the Commissioner of Police had neglected his duty of care towards Ms Moran.

172   The Commissioner of Police accepted for present purposes that he had a duty of care towards Ms Moran, under s 19 of the Occupational Safety and Health Act 1984, which by s 3(4) extends to police officers, as if they were employees and the Crown is treated as if it was the employer of police officers. However, in further written submissions filed on 17 April 2015, the Commissioner of Police submitted that Ms Moran’s submissions in relation to the alleged breach of a duty of care were beyond the scope of the present appeal. The Commissioner of Police contended that an allegation of a breach of the Commissioner of Police’s duty of care to Ms Moran was not raised by Ms Moran in her grounds of appeal.  It was contended by the Commissioner of Police that if the issue was fairly and squarely raised by Ms Moran in her grounds of appeal, the Commissioner of Police would have put on evidence in response, to demonstrate the steps taken by the Commissioner of Police to mitigate the risks of Ms Moran’s injury and the assistance provided to Ms Moran in response to her injury.

173   On the other hand, in response, Ms Moran in further written submissions in reply, submitted that based on all of the material before the Commission, it was open for the Commission to determine that the Commissioner of Police did breach his duty of care towards Ms Moran and this breach may contribute to a finding by the Commission that the removal of Ms Moran was harsh, oppressive or unfair.

174   I am prepared to accept that a demonstrated breach by an employer of its duty of care to an employee, may, depending on the circumstances, contribute to a finding that a dismissal is harsh, oppressive or unfair. In circumstances where it is established that an employer was on clear notice of a possible occupational health and safety risk to an employee, the employer failed to take notice of it and the dismissal of the employee arose in part or in whole from such a breach, then those circumstances would be circumstances that could be taken into account in determining if overall, a dismissal was unfair.

175   However in this case, I agree with the Commissioner of Police’s submissions that the grounds of appeal do not put the allegation of a breach of duty of care clearly in issue.  It is the grounds of appeal in s 33P of the Police Act that mark out the scope of the issues to be determined by the Commission under s 33Q of the Police Act. It is the grounds of appeal that must specify the reasons that the Commissioner of Police’s decision to remove a police officer is harsh, oppressive or unfair. Accordingly, it was necessary for Ms Moran to articulate her grounds of appeal in such a way, that the Commissioner of Police was on notice from the beginning of the case that it had to meet on the appeal. 

176   Not only does s 33P(2)(a) require an appellant to specify the reasons a decision by the Commissioner of Police to remove a police officer is harsh, oppressive or unfair, but by reg 91(1)(a)(i)-(iv) of the Industrial Relations Commission Regulations 2005, the Commissioner of Police must respond to the notice of appeal, specifying the reasons for the removal action and a reply, containing matters the Commissioner of Police wishes to raise in relation to an appellant’s case, is to be made.

177   From the grounds of appeal, set out earlier in these reasons, it is not stated that the Commissioner of Police was in breach of his duty of care to Ms Moran. Whilst Ms Moran referred to submissions about such allegations being contained in subsequent documents provided by her to the Commissioner of Police, it is the grounds of appeal which are most important in this respect. It is the grounds of appeal that the Commission must consider when determining what is to be determined. It is not enough to seek to infer a ground from the grounds as filed.  A clear statement by Ms Moran as to an alleged breach of a duty of care by the Commissioner of Police would have put the Commissioner of Police on notice to incorporate in his answer and reply, and in his case on the appeal, the matters referred to by the Commissioner of Police in its reply submissions mentioned above.

178   The fact that the grounds of appeal have not clearly raised the issue of a breach of duty of care, puts the Commissioner of Police in the position of not being on notice to make submissions and lead evidence about procedures that the WA Police has in place and what steps it took to assist Ms Moran in the present matter. Therefore, in my view, the allegations of a breach of a duty of care are not able to be taken into account by the Commission on this appeal.

179   Having concluded earlier that there is no barrier to the Commissioner of Police in using s 8 and Part IIB of the Police Act to remove police officers on medical retirement grounds, the issue then becomes whether, Ms Moran’s removal, having regard to all of the circumstances of the case, was harsh, oppressive or unfair.

180   The relevant principles applicable to appeals of the present kind are not contentious. It is accepted that a removal of a police officer under s 8 and Part IIB of the Police Act involves the exercise of managerial discretion by the Commissioner of Police. The purpose of a s 8 removal of an Officer is not in any sense a punishment but a means by which the confidence of the Commissioner of Police in a police officer’s suitability to remain in the Police Force can be maintained. The overall test to apply is whether, having regard to the circumstances, the police officer has been denied a “fair go all round” or whether the Commissioner of Police’s right to remove was exercised in such a way as to constitute an abuse of that right: Carlyon v Commissioner of Police (2005) 85 WAIG 708; The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385; In re Loty and Holloway v Australian Workers’ Union (1971) 71 AR 95. Of course, these principles, applicable to unfair dismissal cases generally, must be considered and applied in the context of the specific statutory provisions of Part IIB of the Police Act, in particular s 33Q(4).

181   Additionally, as has been repeatedly observed by the Commission in unfair dismissal cases the role of the Commission is to not place itself in the managerial chair of the Commissioner of Police. Rather, it is for the Commission to consider objectively, whether the recommendation of the Commissioner of Police to the Minister of Police, to remove Ms Moran, was, in all of the circumstances, harsh and unfair.

182   The starting point for the purposes of considering Ms Moran’s challenge to her removal, in accordance with s 33Q of the Police Act, is the reformulated reasons of the Commissioner of Police, filed on 6 February 2015, following the admission of new evidence from Ms Moran. The proceedings dealing with Ms Moran’s request for the admission of new evidence under s 33R were dealt with at an earlier stage in this appeal: Moran v The Commissioner of Police (2015) 95 WAIG 185.

183   The reformulated reasons of the Commissioner of Police refer to the medical board’s opinion that Ms Moran was no longer fit to work with the WA Police. Based on that opinion, due to Ms Moran’s PTSD and Major Depressive Disorder, the Commissioner of Police was not satisfied that Ms Moran was able to continue to perform her duties as a police officer. The Commissioner of Police referred to Ms Moran’s response to the NOITR and that Ms Moran did not dispute that she was no longer fit to work as a police officer.  I accept this to be the case.  Whilst Ms Moran raised a number of issues in her “Notice of Appeal”, delivered to the Commissioner of Police on 22 April 2014, it did not raise any issue with her medical prognosis. 

184   I also note that there was nothing in Ms Moran’s response to suggest that she was motivated to return to the Police Force in another identifiable capacity or that with further treatment, she could do so. Rather, Ms Moran requested that she be retained in the Police Force at her current salary until a workers’ compensation scheme for police officers can be resolved and that Ms Moran be offered an ex-gratia payment equal to five years’ pay. Having considered Ms Moran’s response, the Commissioner of Police maintained the view that Ms Moran was still not able to perform the duties of a police officer by reason of her illness.

185   The Commissioner of Police then considered the content of the new evidence tendered by Ms Moran and formed the opinion that nothing in it demonstrated to the Commissioner of Police that Ms Moran was fit to perform the duties of a police officer. The Commissioner of Police maintains in the reformulated reasons, that there is no obligation on him to indefinitely retain a police officer, who is no longer fit to perform the duties of a police officer. At the time of the reformulated reasons, the Commissioner of Police remained of the view that Ms Moran was unfit to perform the duties of a police officer and there was no reasonable prospect of Ms Moran regaining her fitness for duty. 

186   The reasons of the Commissioner of Police go on to refer to Ms Moran’s allegation of the unfairness of the compensation paid to her and refers to the fact that that compensation is set by the Parliament in s 33M of the Police Act. The Commissioner of Police also notes that a unique scheme of compensation applies to police officers in this State, not available to other employees. While no workers’ compensation scheme presently exists for police officers, they are entitled to 168 days of sick leave per year; the payment of all non-work and work-related medical expenses and all work related medical expenses after a police officer leaves the Police Force.

187   The Commissioner of Police also stated that Ms Moran has been provided the same entitlements as all other medically retired police officers. In this regard, the Commissioner of Police said that as in Ms Moran’s case, once a medical board has deemed an Officer is no longer fit to perform the duties of a police officer, and he is satisfied to this effect also, it is his practice to retire the Officer on medical grounds. Ms Moran was treated in the same way as all others retired on medical grounds.

188   As part of the new evidence tendered, Ms Moran referred to the circumstances of another current police officer, as contained in a copy of an article in “The West Australian” of 20 November 2014. The Commissioner of Police stated that in this Officer’s case, although he has been retained in the Police Force, pending the outcome of his ex-gratia payment request to the State Government, his injuries are catastrophic and he is unable to walk or talk, as a consequence of a mosquito virus he contracted while a police officer.  He will not be able to work again, in any capacity. On this basis, the Commissioner of Police explained that this Officer’s situation is exceptional, and very different to that of Ms Moran.

189   Reference was also made to the situation of another former police officer who was medically retired in 1996. The Officer received an ex-gratia payment from the State Government in 2012. The Commissioner of Police noted however, that this former Officer was medically retired well prior to the ex-gratia payment being made to him and that the medical retirement process for Ms Moran, was no different. The Commissioner of Police also contended that it is open to Ms Moran to seek an ex-gratia payment from the State, if she wished to do so.

190   Finally, in terms of the new evidence, the Commissioner of Police referred to an article recently reported in the “WA Police News” about the process for the removal of medically unfit Officers, in which the Police Minister was quoted as saying “I believe we can do that better …”. The Commissioner of Police submitted that this statement was made in a political context and was not a matter that he could take into account.

191   In summary, the Commissioner of Police in his reasons said that he was bound by the processes of the Police Act and the Regulations. Once a medical board has reported to him that a police officer is not fit for active service, then subject to the Police Act, he is required under reg 1402, to inform the Officer when they will cease duty. The Commissioner of Police contended that s 8 as amended in 2003, with the addition of Part IIB, is the only mechanism available to him to remove a police officer from the Police Force. For the reasons I have expressed above, I agree with that view.

192   Based on the foregoing and the terms of the Police Act, the Commissioner of Police said that where he has lost confidence based on medical grounds, in order to maintain the public confidence in the Police Force, he has a duty to remove a police officer under s 8 and it is not in the public interest to retain on paid sick leave, for an indeterminate time, police officers who are permanently unfit for duty.

193   Given the approach of the Commission to matters such as these, the question to be asked is whether, objectively considered, the decision by the Commissioner of Police to remove Ms Moran from the Police Force, was, having regard to all of the circumstances, one reasonably open to him and it was not otherwise an abuse of the Commissioner of Police’s statutory power to remove a police officer under the Police Act. For the following reasons, whilst I have very considerable sympathy for the circumstances of Ms Moran, I consider that the decision taken by the Commissioner of Police was reasonably open. The decision does not constitute a harsh, oppressive or unfair removal of a police officer under the Police Act.

194   Whilst these proceedings concern the removal of police officers in a specific statutory context under the Police Act, some assistance can be obtained from cases in industry generally, where an employee loses their employment as a result of an injury or illness that renders them unfit for their duties. Some reference was made to this line of cases in another police appeal in Jones v Commissioner of Police (2007) 87 WAIG 1101, although the circumstances of that appeal are distinguishable from the present matter. I would observe however, that unlike employees in industry generally, police officers, as statutory office holders, have been held to have their appointments subject to similar principles applicable to those engaged under Crown prerogative: Fletcher v Nott (1938) 60 CLR 55; Menner v Commissioner of Police (1997) 74 IR 472 at 474-475 per Anderson J; cf: Jarratt v Commissioner of Police (2005) 224 CLR 44.

195   In Jones, the Commission found that the appellant, after 20 or so years as a police officer, was unfairly removed from the Police Force, partly because the Commissioner of Police found her to be refusing to return to work when of the opinion she could do so. The Commission went on to find that the appellant had not demonstrated that removal on medical grounds, based upon the Commissioner of Police’s reformulated reasons, would be unfair, given that the appellant was not able to establish that she was fit to resume duty in the near future in that case. The cases referred to in Jones were a decision of the South Australian Industrial Relations Commission in Kyriakopoulos v James Hardie & Company Proprietary Limited (1970) 37 SAIR 91 and a decision of this Commission in Batchelar v Skybus (1983) 63 WAIG 2244.

196   Kyriakopoulos dealt with an unfair dismissal claim involving an employee dismissed when the evidence showed that the employee would have been fit to resume work after about two weeks on light duties.  In  Batchelar, in an unfair dismissal case, involving an injured employee, Fielding C adopted the approach of Olsson J in Kyriakopoulos and, at 2246, said:

In the circumstances, I cannot see how it can be said that the Applicant was unfairly dismissed.  There was, as I find, no useful work for her to perform.  The medical evidence is that she cannot now perform the tasks for which she was once employed.  I respectfully agree with the view expressed by Olsson P. in Kyriakopoulos v. James Hardie and Co. Pty. Ltd (supra), at page 103, that an applicant in a case of this nature "may only succeed if he is able to demonstrate that he 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 the former position with the employer".  An employer is not obliged to keep the former position open indefinitely, but only for a reasonable time.  In considering the question of fairness or 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.  In that case, the medical evidence indicated that the employee after a period of two weeks' light duties would in all probability be fit to resume the tasks for which he was originally employed, but he was dismissed, and it was held to be unfairly so.  Unlike the position in that case, the preponderance of medical evidence on this occasion does not suggest that in the foreseeable future the Applicant will be able to do that for which she was employed, namely drive buses.  Indeed, the evidence is that she will not be so able to work.  The position in this case is more akin to that examined in Botterill v. James Hardie and Co. Pty. Ltd. (1975) 42 S.A.I.R. 322, where an employee injured at work had been incapacitated for approximately seven months leading to another person being employed to perform his functions, the indications being that when he was fit for work it would be in some totally different capacity.  Following the approach adopted in Kyriakopoulos v. James Hardie and Co. Pty. Ltd. (supra), the South Australian Commission refused to hold that the dismissal was unfair.  In this case, more than six months elapsed between the Applicant's injury and her dismissal.  The Respondent kept the Applicant's position vacant for as long as it could, but was finally forced to engage another driver to perform her functions.  It might even be said that even if the Applicant was fit to drive, it was not unreasonable in those circumstances that she be dismissed now that someone else is performing her function.  However, the Respondent did not simply adopt that attitude but sought to find alternative work which was within the Applicant's physical capability.  I am satisfied that it did not have that work available, and for that reason dismissed the Applicant from its employ.

197   To the extent that the general approach in those cases was endorsed in Jones, I would similarly have regard to them in this appeal. I cannot accept the proposition that the Commissioner of Police should be required to maintain indefinitely in the Police Force, an Officer who has been found to be medically unfit for duty, has no reasonable prospect of any recovery and is either unable or unwilling to be rehabilitated into any other available position within the Force. To do so would be to disregard the public interest in s 33Q(4)(b).  Such interests must however be balanced with Ms Moran’s interests under s 33Q(4)(a). 

198   As I have already mentioned, in this case the medical evidence, which was not contested, was overwhelmingly to the effect that Ms Moran, as a consequence of her condition, was not fit to return to work as a police officer and would not be able to do so in the future. There was no suggestion on the evidence that Ms Moran may be, with further treatment and rehabilitation, able to resume work as a police officer. Indeed the expert opinion was quite the opposite. Any attempt to rehabilitate Ms Moran back into the Police Force, in any capacity, may have served to aggravate her medical condition and set back her recovery. This was the conclusion of the medical board convened by the Commissioner of Police to assess the medical fitness of Ms Moran. 

199   Nor was the medical opinion, to the effect that Ms Moran was not motivated to consider a return to work in any other capacity, seriously challenged on the evidence. On the contrary, a close examination of Ms Moran’s own evidence, as contained in her statement at exhibit 9, in particular at pp 7 and 9-10, tends to suggest any thought of an association by Ms Moran with the WA Police, provoked a strong negative response. This was also consistent with the conclusion reached by the medical board in its report.

200   In this context, which in my view is most important, the submission of Ms Moran that options of other positions in the Police Force, to those of front line policing duties as a police officer, were not explored in detail, which means the removal of Ms Moran must be unfair, cannot succeed. When confronted with all of the medical evidence, including that of Ms Moran’s own treating specialist, combined with the medical board conclusions in its report, it is difficult to see how the Commissioner of Police could come to any other conclusion. In this context also, is the fact that Ms Moran did have a one year absence from work on leave without pay in 2007, and a further one and half years of paid sick leave from the beginning of 2013 to mid-2014. All of Ms Moran’s medical expenses were paid and will continue to be paid in the future.

201   As mentioned earlier, the only real factual issue in dispute was whether it was Ms Moran or Ms Giannini who first raised the medical retirement option very early on in February 2013. However, this is not, at the end of the day, decisive in any material sense. The fact remains that the medical opinion before the Commissioner of Police and before us on this appeal, is conclusive.

202   It is also of some note in this case, that by reg 1402(4) of the Regulations, once the Commissioner of Police is informed by a medical board convened under reg 1402(1) that a police officer is unfit for further active service, “the Commissioner shall advise the member of the date the member will cease duty”. The terms of reg 1402(4) commence with the words “Subject to this Act”. It seems to me that taken in context, this reference is for the purposes of having regard to the removal and the appeal from removal provisions of the Police Act, to medical retirement. Thus, from a fair reading of reg 1402(4), once the medical board has met and reported to the Commissioner of Police that a police officer is no longer fit for service the Commissioner of Police appears obliged to commence the removal process under the Police Act.

203   Whilst Ms Moran contended that it was unfair for the Commissioner of Police to remove her with only the payment of 28 days’ pay under s 33M of the Police Act, this is determined by the Parliament, as a part of the statutory scheme. The Commissioner of Police appears to have no discretion in this respect. There was some discussion in the course of the hearing about the effect of s 33M and in particular, the terms of s 33M(2). Whilst the Commissioner of Police initially described the payment under s 33M(1) as “compensation”, I do not consider that it is compensatory in nature. The Explanatory Memorandum to the Police Amendment Bill 2002 explained the basis for this new provision in the following terms at page 3.  It said that the proposed s 33M:

Significantly modifies the practice under previous administrative arrangements whereby members could appeal to the WAIRC after the Commissioner recommended their removal, but before being removed.  Members also continued to receive pay and could generally resign prior to the appeal being determined.  This acted as an incentive for members to appeal, even where the appeal had no merit.

Now a member removed from office will receive a maintenance payment, based on their previous salary, for 28 days after being removed.  During this period the member may resign (see section 33O), appeal to the WAIRC (see section 33P) or take no further action.

While members will no longer receive pay during the appeal process, the Minister is vested with a discretion, in exceptional circumstances, to direct that the member be paid a further maintenance payment for no more than 6 months pending determination of an appeal.

(My emphasis)

204   Thus it would appear that prior to the amendments, all police officers appealing their removal continued to be paid their normal salary. On the amendment, a one off payment is paid to all removed Officers, regardless of whether any appeal is taken. Any additional payment of up to an extra six months’ pay, under s 33M(2) is subject to Ministerial discretion, and may only be paid in “exceptional circumstances”. Importantly however, such a payment is only made “pending determination of an appeal”. Thus, it appears to have the character of a “holding over” or bridging type of payment. Given that evident purpose, the absence of such a payment being made to a removed police officer, cannot, in my opinion, lead to a conclusion of unfairness in the removal itself.  Furthermore, if this is the intended purpose of a s 33M(2) payment, at the time of recommending removal action to the Minister, the Commissioner of Police would not generally know if an Officer intends to appeal against their removal. Thus, at the time the removal recommendation is made by the Police Commissioner, any possible extended payment under s 33M(2) cannot be a factor in the fairness or otherwise, of the decision at that time. 

205   Additionally, in relation to Ms Moran’s criticism of the 28 day payment under s 33M(1), regard must be had to the fact that Ms Moran was on paid sick leave for one and a half years, prior to her removal. This is a period of paid sick leave vastly in excess of what an employee in general industry would be entitled to.  This must be taken into account, as a part of all of the circumstances of the case. Significant in my assessment of the overall circumstances of this case, is a comparison of the circumstances of Ms Moran, and to employees in industry generally, who may also face loss of employment because of medical unfitness for work. As the cases in this jurisdiction and in the South Australian industrial jurisdiction show, Ms Moran, whilst acknowledging her grievances about the process adopted by the Commissioner of Police, was in receipt of considerably more generous arrangements than any other employee.  Applying the yardstick of those cases, it is hard to see how a conclusion of unfairness can be reached in this matter, when all of the circumstances are considered.

206   Finally, as to a central theme of Ms Moran’s submissions that the Commissioner of Police failed to properly acknowledge in some way, her 24 years of meritorious service to the citizens of the State, this submission has merit. The Commissioner of Police should have done so, as a matter of recognition of Ms Moran’s dignity. However, this factor, in the context of all of the circumstances of the appeal, does not make Ms Moran’s removal harsh, oppressive or unfair, warranting intervention by the Commission.

Conclusion

207   Accordingly, in my view, the appeal should be dismissed.

MAYMAN C:

208   I have read in advance the reasons for decision of the Chief Commissioner.  I agree for the reasons he has given that the appeal should be dismissed and have nothing to add.