On 3 November 2021, the High Court determined that a decision made by the Commissioner of Police (NSW) (Commissioner) to medically retire a police officer was not excluded from challenge under the unfair dismissal regime in the Industrial Relations Act 1996 (NSW) (Industrial Relations Act).
In the unanimous decision of NSW Commissioner of Police v Cottle  HCA 7, the High Court dismissed the Commissioner's appeal and upheld the NSW Court of Appeal's finding that nothing in the drafting of section 72A of the Police Act 1990 (NSW) (Police Act) indicated that the unfair dismissal provisions of the Industrial Relations Act were to be excluded. In other words, the NSW Industrial Relations Commission (IRC) did have jurisdiction to hear and determine Mr Cottle's application for unfair dismissal.
Mr Cottle was a police officer who was found to be medically unfit for service and consequently retired by the Commissioner under section 72A of the Police Act (since repealed and replaced by section 94B). Mr Cottle then made an application under section 84 of the Industrial Relations Act, claiming he was unfairly dismissed.
The key question for the High Court to determine was whether or not section 72A of the Police Act warranted a reading down of section 218 of the Police Act to exclude the operation of the Industrial Relations Act's unfair dismissal regime in cases of medical retirement. Read our previous article here for further background and detail on the earlier decisions in this case.
Importantly, this case raises interesting questions about statutory interpretation and the interaction between the Industrial Relations Act and other public sector legislation. The High Court's decision ultimately suggests, unless expressly or impliedly excluded, that the IRC's jurisdictional powers, including in relation to unfair dismissals, can extend to public servants who are covered by their own unique statutory regime, such as, in this case, the NSW Police Force.
Parties' submissions to the High Court
The Commissioner submitted that the NSW Parliament did not intend for the Industrial Relations Act's unfair dismissal regime to cover medical retirement decisions made by the Commissioner. The power in section 72A was said to be analogous to the power in section 80 of the Police Act, which was found to be inconsistent with the Industrial Relations Act in the previous High Court decision of Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1 (Eaton). The Commissioner also emphasised the unique nature of the NSW Police Force sector and the need to be able to manage and control the peculiarities of the NSW Police Force in that context.
Conversely, Mr Cottle submitted in reply that section 72A of the Police Act is distinguishable from Eaton (see below) and therefore does not avoid the operation of the Industrial Relations Act.
High Court's findings
Distinguishable from Eaton
In support of Mr Cottle, the High Court found that section 72A of the Police Act was distinguishable from section 80 of the Police Act, as considered in Eaton, because section 80:
- concerns probationary police officers, who were distinguished from regular full-time police officers in Eaton
- suggests that the Commissioner has unfettered power to dismiss, which the High Court interpreted to mean that the Commissioner has the power under section 80 to dismiss without providing reasons. There is no equivalent wording in section 72A, which instead requires objective criteria to be met in order to first enliven the Commissioner's discretion.
Statutory Interpretation of Section 72A of the Police Act
Though there is no obligation under section 72A to provide reasons for the decision to medically retire a police officer, the High Court said the IRC should be able to determine whether the absence of such reasons, amongst other considerations, amounts to unfair dismissal. The objective criteria laid out in section 72A also pointed to stable grounds for determining whether an officer's dismissal was "harsh, unreasonable or unjust".
As part of its decision, the plurality compared section 72A with sections 50 and 181D of the Police Act. The provisions surrounding dismissal under sections 50 and 181D either explicitly or impliedly exclude the operation of the Industrial Relations Act. The High Court found that the absence of an equivalent provision under section 72A was a "powerful indication against the conclusion that the power to cause the retirement of non-executive police officers under s 72A shares the same immunity".
Other public sectors
The High Court also noted that substantially identical powers to section 72A, that is, powers to cause the retirement of public sector employees, exist in other legislation, including section 56 of the Government Sector Employment Act 2013 (NSW), and those powers have been held to be subject to the unfair dismissal regime.
On this basis, the plurality found that it would be "anomalous in the extreme" not to allow police officers the same remedy afforded generally to public sector employees. Further, the distinctive functions of the NSW Police Force and the Commissioner's responsibilities in that context were not enough for the court to find section 72A unique in this respect.
Contradictions with the Industrial Relations Act
The High Court also rejected the Commissioner's contention that because "reinstatement" was not an available remedy for those terminated under section 72A, the unfair dismissal provisions were not intended to apply to medically retired police officers. Instead, the High Court said it was perfectly open for the IRC to apply an alternative or suitable remedy in that circumstance.
Finally, Section 218 of the Police Act, which recognised the general jurisdiction of the Industrial Relations Act, was also found to be a persuasive indicator of parliamentary intent that, in fact, the Police Act did not "cover the field" of industrial matters.
Observations and key takeaways
- Without an express (or implied) exclusion, the Industrial Relations Act will likely apply to most NSW public sector employees.
- The High Court's decision makes clear that each provision of an Act will be construed with regard to its particular meaning and the context of its enactment. In other words, not all provisions of the Industrial Relations Act will apply to the public sector as a matter of course.