High Court to decide: Are decisions made by the Commissioner of Police to medically retire police officers exempt from unfair dismissal?

Later this year, the High Court will hear the Commissioner of Police's (NSW) (Commissioner) appeal on whether decisions made by the Commissioner to medically retire police officers are excluded from the unfair dismissal regime under the Industrial Relations Act 1996 (NSW) (Industrial Relations Act).

By way of background, Mr Cottle was a police officer who was found to be medically unfit for service and consequently retired by the Commissioner, under the then section 72A of the Police Act 1990 (NSW) (Police Act). Mr Cottle then made an application under section 84 of the Industrial Relations Act, claiming he was unfairly dismissed.

In reply, the Commissioner argued that the Industrial Relations Commission of NSW (IRC) did not have jurisdiction to hear Mr Cottle's claim as medical retirement decisions made pursuant to section 72A of the Police Act are not subject to the Industrial Relations Act's unfair dismissal regime.

The Commissioner argued the Industrial Relations Act did not apply to decisions made pursuant to section 72A of the Police Act as the Police Act "covered the field" and by implication excluded the operation of the Industrial Relations Act. However, the Full Bench of the IRC upheld Mr Cottle's appeal and found that Mr Cottle could bring an unfair dismissal claim.

Previous High Court decision

Whether the High Court's previous decision of Commissioner of Police v Eaton (2013) 252 CLR 1 (Eaton) applies to a medical retirement is crucial to the Commissioner's appeal. Eaton also involved the Commissioner's claim for exclusive jurisdiction of the Police Act, with respect to decisions made under section 80(3), being decisions made by the Commissioner to dismiss probationary constables.

Review in the Supreme Court

At first instance, Simpson AJ of the NSW Supreme Court declared that the IRC did not have jurisdiction to hear and determine Mr Cottle's application for unfair dismissal. The Supreme Court found section 72A to be "relevantly indistinguishable" from the operation of section 80(3) of the Police Act – the operative provision in the Eaton decision.

Consequently, the Supreme Court endorsed the High Court's previous findings regarding the interaction between the Police Act and the Industrial Relations Act, specifically that "the unfair dismissal regime of the Industrial Relations Act was not framed with something like the Police Force in mind".

The Supreme Court found there was a legislative intention to exclude the IRC's jurisdiction from a decision to cause a police officer's medical retirement under section 72A. Unlike other provisions of the Police Act involving dismissals, section 72A did not require the Commissioner to provide notice or a reason for their decision. As in Eaton, the primary judge found the Commissioner's decision to medically retire a police officer was unfettered once the preconditions of medical unfitness were made out. After finding section 72A conferred the Commissioner with an unfettered discretion once these preconditions arose, the primary judge determined this type of decision did not need to be subject to review under the Industrial Relations Act.

Further, the primary judge found inconsistencies with the remedies available under the Industrial Relations Act and dismissals made under section 72A of the Police Act. Under the Industrial Relations Act, specifically section 89, the IRC can provide reinstatement as a remedy for successful unfair dismissal claims. The primary judge determined this interaction between the Industrial Relations Act and the Police Act to be inconsistent as reinstatement is not a possible remedy for medically retired police officers.

The Court of Appeal

The Court of Appeal allowed Mr Cottle's appeal and determined that Eaton was not binding on the outcome of this claim and consequently determined that nothing in the drafting of section 72A or the Police Act indicated that the Industrial Relations Act was to be excluded.

The Court of Appeal distinguished Eaton by relying on section 218 of the Police Act, which states the "Industrial Relations Act 1996 is not affected by anything in this Act", and finding that the Industrial Relations Act remains unaffected by the wording of section 72A. In doing so, the Court of Appeal confirmed that the High Court's decision to exclude section 80(3) from the Industrial Relations Act's operation was confined to the wording of section 80(3), being dismissing probationary constables, as a specific category of police officers who may be dismissed during their limited and contingent period in the Police Force. Nevertheless, the Court of Appeal recognised the Commissioner was required to undertake a different task with different considerations when causing an officer to medically retire pursuant to section 72A.

The Court of Appeal also found that nothing in the Industrial Relations Act justified reading down the right of unfair dismissal protection provided by section 84 (of the Industrial Relations Act), especially in the context where there are no other immediate grounds for review except for judicial review.

The Court of Appeal did not accept the Commissioner's submissions which claimed the restricted number of remedies available to NSW police officers was a reflection of the unique industrial considerations relevant to police work. In response, the Court of Appeal recognised that, generally, the Police Act provides scope for review by the IRC.

Moreover, the Court of Appeal recognised that members of the NSW Police Force, like Mr Cottle, fall under the Industrial Relations Act's definition of "public sector employee" despite the Court of Appeal acknowledging that non-executive police officers, like Mr Cottle, are not engaged by way of an employment contract and are instead independent office holders exercising original authority under statute.

Special leave granted by the High Court

On 12 April 2021, the High Court granted the Commissioner with special leave to appeal the Court of Appeal's decision. We understand that the High Court will hear this appeal later this year.

The key issue for the High Court to decide is if, like in Eaton, section 72A of the Police Act warrants a reading down of section 218 of the Police Act to exclude the operation of the Industrial Relations Act's unfair dismissal regime.

During their special leave application, the Commissioner submitted the NSW Parliament did not intend for the Industrial Relations Act's unfair dismissal regime to cover medical retirement decisions made by the Commissioner. To support this claim, the Commissioner submitted that the Industrial Relations Act is a generalist statute that was not created with the Police Force in mind and, consequently, that the Commissioner, pursuant to the Police Act, is best placed to make decisions under section 72A.

Conversely, Mr Cottle submitted in reply that section 72A is distinguishable from Eaton and therefore does not avoid the operation of the Industrial Relations Act. Mr Cottle argued that section 72A requires the Commissioner to be satisfied that certain preconditions have been met, including determining the relevant police officer's medical fitness. Therefore, police officers require a right to challenge any such decision made under section 72A.

This case raises interesting questions of statutory interpretation, and we will keep you informed of the High Court's decision in this matter.

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