MORAN -v- THE COMMISSIONER OF POLICE [2015] WASCA 245 (3 December 2015) Last Updated: 3 December 2015 JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : MORAN -v- THE COMMISSIONER OF POLICE [2015] WASCA 245 CORAM : BUSS J MURPHY J LE MIERE J HEARD : 25 SEPTEMBER 2015 DELIVERED : 3 DECEMBER 2015 FILE NO/S : IAC 3 of 2015 BETWEEN : SUSAN LEANNE MORAN Appellant AND THE COMMISSIONER OF POLICE Respondent ON APPEAL FROM: Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Coram : BEECH CC KENNER C MAYMAN C Citation : MORAN V THE COMMISSIONER OF POLICE [2015] WAIRC 00464 File No : APPL 19 of 2014 Catchwords: Industrial Appeal Court - Whether court has jurisdiction to hear appeal Legislation: Industrial Relations Act 1979 (WA), s 90 Police Act 1892 (WA), s 8 , s 33S , s 33U Result: Appeal dismissed Category: B Representation: Counsel: Appellant : Mr K Moran (Appellant's representative) Respondent : Mr G Tannin SC & Mr S Teoh Solicitors: Appellant : In person Respondent : State Solicitor for Western Australia Case(s) referred to in judgment(s): Gordon v Commissioner of Police [2011] WASCA 168 ; (2011) 210 IR 448 Moran v Commissioner of Police [2015] WAIRC 00464 Polizzi v Commissioner of Police [2015] WASCA 46 Wall v Commissioner of Police [2012] WASCA 170 REASONS OF THE COURT : Introduction 1 On 25 September 2015, the court heard submissions on the question of whether the appeal in this matter from a decision of the Western Australian Industrial Relations Commission [1] (the Commission) is competent. For the reasons which follow, the appeal is not competent and the appeal should be dismissed. Background 2 The appellant was formerly a member of the Western Australian Police Service. 3 The respondent, the Commissioner of Police (Police Commissioner), removed the appellant from the Western Australian Police Service with effect from 17 July 2014, pursuant to s 8(1) and s 8(2) of the Police Act 1892 (WA) (the Police Act ). Prior to her removal on 17 July 2014, the appellant had been on paid sick leave from 18 January 2013. [2] 4 On 1 August 2014, the appellant appealed to the Commission under s 33P(1) of the Police Act , on the ground that the Police Commissioner's decision to take removal action relating to her was 'harsh, oppressive or unfair'. The grounds of her notice of appeal were: [3] Harsh - my proposed removal was harsh by being so ruthless in its intent. Although it is provided in s 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 am 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. 5 On 25 June 2015, the Commission dismissed the appeal. It found that the Police Commissioner's decision to remove the appellant was not harsh, oppressive or unfair. [4] 6 On 13 July 2015, the appellant filed a notice of appeal in this court, which included the appellant's grounds for challenging the Commission's decision. 7 On 27 July 2015, the appellant filed a notice of motion in this court to determine, in effect, whether the appeal was competent and within the jurisdiction of this court. Each of the parties filed and served written submissions and oral argument was heard on that matter on 25 September 2015. The appellant's grounds of appeal 8 The appellant's appeal notice filed 13 July 2015 contains approximately 71 paragraphs. The paragraphs are unnumbered, save that each is prefaced by a reference to the paragraph number of the Commission's decision with which it is purportedly concerned. The grounds include the following: [5] (a) The Police Commissioner was required under 'industrial legislation' to acknowledge the appellant's years of service, and it was 'harsh and oppressive' not to provide such an acknowledgement (par 26); (b) Whilst the process of removal of a police officer from service under s 8 of the Police Act may be lawful, it is 'unfair', and should be subjected to 'review through this appeal' (par 31); (c) The Tribunal allegedly failed to consider the subjective view of the appellant that her treatment was unfair, harsh or oppressive (par 35); (d) Section 8 of the Police Act is 'flawed' and 'should not be used until the legislative processes corrected it' (par 61); (e) The removal of 'sick and injured police officers' under s 8 of the Police Act is a 'legislated unfair process' (par 130); (f) If the respondent's duty of care is found to be absent or lacking, the appellant's removal 'should be declared null and void' (par 174); (g) The Police Commissioner is not compelled under the Police Act to 'remove a sick officer' (par 185); and (h) The Minister for Police was quoted in 'WA Police News' as saying in effect that officers who are medically unfit should not have to go through the humiliation of a loss of confidence process, and that this Ministerial statement 'provides evidential material from a no greater source than the Minister of Police to support the claim by the appellant that her removal was a[n] unfair and harsh process' (par 190). The appellant's submissions on the notice of motion 9 The appellant's written submissions included the following: On Tuesday 11th March 2014 the appellant after a period of sick leave, on instruction from the Commissioner of Police to attend numerous medical appointments, finally appeared before a Medical Panel who informed her that their unanimous diagnoses was she was suffering duty-caused Chronic Post Traumatic Stress Disorder and Chronic Depression and could no longer perform police duties. On 17 July 2014 pursuant to s 8 and 33L of the Police Act 1892 the respondent removed the appellant as a serving member of the Western Australian Police Force. On 12 - 13 February 2015 and 2 April 2015 the appellant presented her appeal ... before the Western Australia Industrial Relations Commission. On 25 June 2015 the Western Australia Industrial Relations Commission dismissed the appellant's Appeal. ... There are matters contained in the Decision that are not industrial matters and that the decision contains jurisdictional errors and is in excess of jurisdiction. The decisions contained in these jurisdictional errors cannot be binding or have legal effect and should be set aside and be considered within the jurisdiction of the Industrial Appeal Court. 10 In oral submissions, the appellant's representative elaborated upon the appellant's written submissions. The representative of the appellant also said: [6] I would like the judiciary of this State - the senior judiciary of this State - to have a look at all the laws, regulations relating to the ill-treatment of police officers not given to any other member of society in Western Australia. If you could have a review of that, which is permitted, even under the ouster clauses, which perhaps you may say we cannot move on from that. But you are permitted a review and I would dearly request that such a review take place. The relevant legislation Police Act 11 Part IIB of the Police Act is titled 'Removal of members'. Section 33L , s 33P , s 33Q and s 33S of the Police Act provide, relevantly, as follows: 33L. Notice of loss of confidence to be given before removal action is taken (1) If the Commissioner of Police does not have confidence in a member's suitability to continue as a member, having regard to the member's integrity, honesty, competence, performance or conduct, the Commissioner may give the member a written notice setting out the grounds on which the Commissioner does not have confidence in the member's suitability to continue as a member. (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. ... 33P. Appeal right (1) A member who has been removed from office by or as a result of removal action taken in accordance with section 33L may appeal to the WAIRC on the ground that the decision of the Commissioner of Police to take removal action relating to the member was harsh, oppressive or unfair. ... 33Q. Proceedings on appeal (1) On the hearing of an appeal instituted under this Part, the WAIRC shall proceed as follows - (a) first, it shall consider the Commissioner of Police's reasons for deciding to take removal action; (b) secondly, it shall consider the case presented by the appellant as to why that decision was harsh, oppressive or unfair; (c) thirdly, it shall consider the case presented by the Commissioner in answer to the appellant's case. (2) The appellant has at all times the burden of establishing that the decision to take removal action was harsh, oppressive or unfair. ... 33S. Application of Industrial Relations Act 1979 to appeals The provisions of the Industrial Relations Act 1979 listed in the Table to this section apply, subject to this Part, any necessary modifications, and any specific modifications set out in that Table, to and in relation to an appeal and a determination of an appeal instituted under this Part. Table ... s 90 A reference in subsection (1) to 'any decision of the President, the Full Bench, or the Commission in Court Session' is to be read as if it were a reference to 'a decision of the Commission under section 33U of the Police Act 1892 '. 12 Section 33U of the Police Act provides relevantly: 33U. Decision by the WAIRC (1) This section applies if the WAIRC decides on an appeal that the decision to take removal action relating to the appellant was harsh, oppressive or unfair. (2) If this section applies and unless an order is made under subsection (3) the WAIRC may order that the appellant's removal from office is and is to be taken to have always been of no effect. (emphasis added) Industrial Relations Act 13 Section 90(1) of the Industrial Relations Act 1979 (WA) provides: Appeal from Commission to Court (1) Subject to this section, an appeal lies to the Court in the manner prescribed from any decision of the President, the Full Bench, or the Commission in Court Session - (a) on the ground that the decision is in excess of jurisdiction in that the matter the subject of the decision is not an industrial matter; or (b) on the ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against; or (c) on the ground that the appellant has been denied the right to be heard, but upon no other ground. Disposition 14 This court's jurisdiction to hear an appeal by a former member of the Western Australian Police Service against a decision of the Commission is provided for under s 90(1) of the Industrial Relations Act , as modified and applied by s 33S read with s 33U of the Police Act . The court's jurisdiction in this regard has been the subject of examination in Gordon v Commissioner of Police [2011] WASCA 168 ; (2011) 210 IR 448 and Wall v Commissioner of Police [2012] WASCA 170. See also Polizzi v Commissioner of Police [2015] WASCA 46. 15 It was held in those cases, that upon the proper construction of s 90(1) of the Industrial Relations Act , as applied by s 33S of the Police Act , a member of the Western Australian Police Service has no right of appeal to this court from a decision of the Commission in which the Commission has dismissed the appeal on the grounds that the officer's removal was not harsh, oppressive or unfair. 16 The appellant is purporting to appeal from a decision of the Commission dismissing her appeal on the grounds that her removal from office was not harsh, oppressive or unfair. The appellant's grounds in substance are to the effect that her removal was harsh, oppressive or unfair in all the circumstances. Whilst in support of her motion the appellant contends that the Commission allegedly made jurisdictional errors, the proper characterisation of the primary proceedings is that the Commission was dealing with an appeal by the appellant under s 33P(1) of the Police Act ; the basis of the appeal was that the Police Commissioner's decision to take removal action against her was harsh, oppressive or unfair; and the Commission dismissed her appeal having found that her removal was not harsh, oppressive or unfair. 17 Accordingly, the appellant has no right to appeal to this court. The appeal is incompetent and should be dismissed. 18 In relation to the appellant's invitation for this court to undertake a review of the relevant legislative scheme as it applies to police officers who are medically incompetent to perform their duties, plainly that invitation cannot be accepted. Questions concerning the merits or demerits of any legislative scheme are matters for the legislature. [1] Moran v Commissioner of Police [2015] WAIRC 00464 (primary reasons). [2] Primary reasons [45], [205]. [3] See primary reasons [24]. [4] Primary reasons [102] - [111] (Beech CC with whom Mayman C agreed); [207] (Kenner C). [5] The paragraph numbers at the end of each ground refer to the paragraph numbers prefacing each paragraph in the appellant's grounds of appeal. [6] Appeal ts 15 - 16.