Cook v Commissioner of Police [1996] IRCA 129

DECISION NO: 129/96

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - policeman - prior review of termination by Police Appeal Board - whether doctrine of "estoppel by record" applies - ADEQUATE ALTERNATIVE REMEDY - whether a police officer is an employee - whether period of probation reasonable - APPLICATION for extension of time - whether VALID REASON - whether HARSH, UNJUST OR UNREASONABLE - PROCEDURAL FAIRNESS

Industrial Relations Act 1988 ss 170EA, reg. 30B

Police Act 1892 (WA), ss 23, 33

Public Service Act 1922 (Cth)

Australian Education Union; ex parte The State of Victoria (1995) 128 ALR 609

Bannister v Department of the Treasury (unreported, Ryan JR, Industrial Relations Court of Australia No. 327 of 1995, 14 July 1995)

Maggs v Comptroller General of Customs (1994) 58 IR 40

Liddell v Lembke (1994) 56 IR 447

Grout v Gunnedah Shire Council (1994) 125 ALR 355

Willcocks v Makfen Holdings Pty Ltd (unreported, Lee J, Industrial Relations Court of Australia No. 392 of 1995, 22 August 1995)

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Chamberlain v Deputy Commissioner of Taxation (Cth) (1988) 164 CLR 502

Blackham v Coal and Allied Operations Pty Ltd (unreported, Walker JR, Industrial Relations Court of Australia No. 623 of 1995, 29 November 1995)

Wiest v DPP (1988) 23 FCR 472

Basser v Medical Board of Australia [1981] V.R. 953

Cachia v Isaacs (1985) 3 NSWLR 366

Fabian Alwyn COOK v COMMISSIONER OF POLICE

WI 1920 of 1995

Re Australian Federal Police Association (No. 2) (1993) 51 IR 122

Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561

Minister of Police v WA Police Union of Workers (1995) 75 WAIG 1504

Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199

Fischer v Commonwealth of Australia (unreported, Wilcox CJ, Industrial Relations Court of Australia No. 445 of 1995, 1 September 1995)

TWU v National Dairies Ltd (No. 2) (1994) 57 IR 186

Patricelli v LJ Hooker Real Estate (unreported, RD Farrell JR, Industrial Relations Court of Australia No. 715 of 1995, 16 November 1995)

Fabian Alwyn COOK v COMMISSIONER OF POLICE

WI 1920 of 1995

Before: RD FARRELL JR

Place: KUNNUNNURRA (Heard in Perth)

Date: 4 APRIL 1996

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WI 1920 of 1995

B E T W E E N:

Fabian Alwyn COOK

Applicants

A N D:

COMMISSIONER OF POLICE

Respondent

MINUTE OF ORDERS

4 APRIL 1996 R D FARRELL JR

THE COURT ORDERS THAT:

1. The application for an extension of time for filing the substantive application be dismissed.

2. The application for a remedy under Part VIA of the Industrial Relations Act 1988 be dismissed.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WI 1920 of 1995

BETWEEN:

Fabian Alwyn COOK

Applicant

AND:

COMMISSIONER OF POLICE

Respondent

REASONS FOR DECISION

4 April 1996 R. D. FARRELL JR

1. This is an application under Section 170EA of the Industrial Relations Act 1988 for reinstatement or, in the alternative, compensation arising from the alleged unlawful termination of the employment of the applicant, Fabian Alwyn Cook (“Mr Cook”), by the respondent, the Western Australian Commissioner of Police (“the Commissioner”).

2. Mr Cook, who was a constable in the Western Australian Police Force, was involved in altercations with members of the public and fellow police officers one evening while off-duty. He pleaded guilty to internal disciplinary charges arising from those events. The Commissioner had a range of punishments available to him under the Police Act 1892 (W.A.) for imposition upon Mr Cook. The punishment the Commissioner decided to impose was Mr Cook’s dismissal from the Police Force. When Mr Cook’s appeal to the Police Appeal Board 0from the Commissioner’s decision was dismissed, Mr Cook brought this application.

3. Mr Cook was employed as a cadet on 26 June 1989. He became a police constable and entered the academy in April 1993. He left the academy on 1 October 1993. The incidents in question took place on 12 March 1994. The investigation led to a hearing before the Commissioner and Mr Cook’s dismissal on 22 February 1995.

4. Prior to leading evidence, Counsel for the Commissioner, Mr Creewel, put a number of legal propositions to the Court, each to the effect that the Court did not have jurisdiction to deal with the application. These submissions were answered by Ms O’Brien, Counsel for Mr Cook. The parties then proceeded, by agreement, to lead their evidence going to the merits of the case.

5. I will deal with each of Mr Creewel’s submissions before turning to consider the merits.

Whether the Application of Part VIA, Division 3 of the Act to the Western Australian Police Force is Unconstitutional

6. Mr Creewel cited the recent decision of the High Court in Australian Education Union; ex parte The State of Victoria [1995] 128 ALR 609 as authority for the proposition that this Court has no jurisdiction to make orders against the Western Australian Commissioner of Police - the respondent in this case. I have not decided this point, for reasons I explain below. I will briefly set out the submissions in any event.

7. In the Australian Education Union case, the State of Victoria sought prerogative writs from the High Court in relation to numerous proceedings in the Australian Industrial Relations Commission (“the Commission”), including the making of two interim awards which restricted the capacity of the State of Victoria and its agencies to terminate the services of its employees on the ground of redundancy.

8. The majority of the High Court noted the existence of an implied limitation on the legislative power of the Commonwealth, derived from the Constitution’s general structure, which protects the existence of the States and their capacity to function as a government.

9. The majority identified a State government’s rights to determine:

· the number and identity of the persons whom it wishes to employ;

· the term of employment of such persons; and

· the number and identity of the persons whom it wishes to dismiss from its employment on redundancy grounds

as matters critical to a State’s capacity to function as a government.

10. The High Court found that the interim awards made by the Commission, to the extent that they purported to restrict the State’s and its agencies’ right to terminate the services of employees on redundancy grounds, lay outside the Commission’s jurisdiction.

11. In the course of the decision, the majority considered the Solicitor General for South Australia’s contention that, while the Commonwealth, through the Commission, could regulate remuneration and disputes about remuneration and other payments to State Government employees, it could not prescribe employment qualifications, eligibility and termination procedures, because to do so would impair the integrity or autonomy of the State.

12. The majority of the High Court confirmed that the prescription by a federal award of minimum wages or working conditions (at least if it takes into account any special functions or responsibilities which attach to the employees in question) would not infringe the implied limitation, except at the higher levels of government.

13. Whether, in some areas of employment, an award regulating promotion and transfer would infringe the implied limitation was left by the majority as an open question, the answer for which would turn on questions of degree, including the character and responsibilities of the employee.

14. While ruling that an impairment of a State’s right to determine the number and identity of the persons whom it wishes to dismiss from its employment on redundancy grounds would infringe the implied limitation, the majority said nothing as to the more general prescription of termination procedures.

15. My attention was drawn by the applicant to the recent decision of Ryan JR of this Court in Bannister v Department of the Treasury (IRCA No. 327 of 1995, Ryan JR, unreported). In that case it was found that the operational requirements of the Victorian State Government had led to a total restructure of the Department of Treasury, and that the termination of the applicant in that case was on the grounds of redundancy.

16. Having analysed the High Court’s decision Ryan JR accepted that the doctrine of implied limitation applies to all Commonwealth legislative power, and that the decision was binding authority on this Court in the exercise of its power under Division 3 Part VIA of the Industrial Relations Act 1988. He went on to make the following observations:

“... it is not clear precisely what the majority intended by the word “identity” when referring to restrictions on the State’s ability to determine the identity of the persons whose employment it wishes to terminate. It may be that the majority is referring to skills and attributes, rather than personal identity of employees. A State’s ability to function requires that it be able to decide what skills and experience it has in its workforce not the actual personal identities of its employees per se. I have concluded that the requirements imposed by Division 3 constitute restrictions on a State government’s ability to hire and fire employees. However, they are not impairments on a State government’s ability to make and implement decisions about its work force which are necessary for it to function as a government. Division 3 Part VIA (of the) Industrial Relations Act 1988 does not impair a State’s ability to dismiss employees with or without notice; rather, it requires that employees be treated fairly by the dismissal process.

In other words, the rights accorded to a State government by the majority... do not constitute an absolute right to hire and fire employees at will, since such right is not essential to the capacity of a State to operate as a government. Division 3, in my view, therefore, does not infringe the implied limitation...”

17. I note that in Bannister v Department of the Treasury, prior notice had been given to the Attorneys General of the Commonwealth and the States of a matter arising under the constitution and involving the interpretation of the constitution, as is required under Section 78B of the Judiciary Act 1903.

18. The required notice has not been given in the present case. Accordingly, I will not decide Mr Creewel’s submission on this point.

19. I find that the other preliminary submissions and the submissions on the merits are severable from the submission arising under the Constitution. I will therefore go on to decide them.

The Police Appeal Board

20. Two of Mr Creewel’s submissions arose from the fact that Mr Cook had available to him, and had indeed availed himself of, a right of appeal to the Police Appeal Board.

21. The Police Appeal Board (“the Board”) is established under Part IIA of the Police Act 1892 (W.A.).

22. The Board comprises three members who hold office for two year terms. They are:

· A “Chairman” who must be a stipendiary magistrate and is appointed by the Governor;

· An appointee of the Commissioner of Police; and

· A police officer elected by the Police Force.

23. A right of appeal to the Board against a punishment imposed by the Commissioner and against any decision or finding on which the punishment was based is conferred upon members of the Police Force and police cadets.

24. Parties to an appeal before the Board are entitled to be represented by counsel, solicitors or duly appointed agents.

25. The Board has the power to:

· issue summonses requiring witnesses to attend before the Board and give evidence, and/or to produce any relevant documents in their possession or control; and

· require any person before the Board to take an oath or affirmation and answer questions put by the Board or the parties to the appeal.

and failure to comply with these requirements is an offence. The Board also has power to order payment of costs

26. The Board has power to confirm, modify, or reverse any decision, finding or punishment appealed against.

27. A record of all the proceedings and decisions of the Board is kept by its secretary, but the deliberations of the Board and the individual views of its members are not published, except of the members’ own volition.

28. Section 33H(1) of the Police Act 1892 (W.A.) provides that “the decision of the Board is final”.

Is the Police Appeal Board an “Adequate Alternative Remedy”?

29. Mr Creewel did not, in the end, pursue this submission that the Board was an adequate alternative remedy available to Mr Cook such that the Court must decline to consider or determine this application, by force of Section 170EB of the Act.

30. Mr Creewel’s position was that, while the Board had been an adequate alternative remedy immediately following Mr Cook’s dismissal, the remedy was now no longer available to Mr Cook, because the Board had since made its determination.

31. Mr Creewel was right to not pursue this submission. Mr Cook’s situation is analogous to that considered by the Full Court of this Court in Maggs v Comptroller General of Customs [1994-1995] 58 IR 40.

32. In that case, Maggs, a customs officer, was charged with five offences under the Public Service Act 1922 (Cth). The inquiry officer found all the allegations proved and directed Maggs’ dismissal. Maggs appealed to the Disciplinary Appeal Committee, a committee established under the Merit Protection (Australian Government Employees) Act 1984 (Cth) and consisting of a lawyer, a nominee of the Secretary of the employing agency and a union nominee. The Disciplinary Appeal Committee’s procedures were similar to those adopted by courts. It sat in public, took evidence on oath and affirmation and was required to give reasons for its decision. The Disciplinary Appeal Committee upheld the inquiry officer’s findings in respect of three allegations and affirmed the inquiry officer’s direction for dismissal.

33. The Full Court confirmed that, in order to constitute an adequate alternative remedy, a remedy must be available when the Court comes to consider the application.

34. In Maggs’ case the termination of employment did not come into effect until after the exercise of or the lapsing of the right to seek a review by the Disciplinary Appeal Committee. Because the application came to the Court after the termination had taken effect, review by the Disciplinary Appeal Committee was not available. The Court held that, unless it was available when the Court considered the application, the review obviously could not satisfy Section 170EB.

35. Mr Creewel’s primary submission in the present case was that the doctrine of res judicata applied, and that Mr Cook was estopped by matter of record from litigating in this Court his claim against the Commissioner, which had already been determined by the Board. That submission, which was not raised in Maggs’ case, is considered in due course.

36. However, it is convenient to consider at this point a hypothetical contention put by Mr Creewel in the context of his submissions on the issue of estoppel by matter of record. Mr Creewel contended that, if Mr Cook’s application to this Court had been filed prior to the determination of his appeal to the Police Appeal Board, then the Court could not have dealt with the application, because the Board was an adequate alternative remedy for the purposes of Section 170EB of the Act, and would at that time have been still available to him.

37. I do not accept that the Police Appeal Board could ever have been an adequate alternative remedy for the purposes of Section 170EB.

38. Mr Cook was dismissed from the Police Force on 22 February 1995. At that time, Section 170EB provided that:

“The Court must decline to consider or determine an application under section 170EA if satisfied that there is available to the employee by or on whose behalf the application was made an adequate alternative remedy, in respect of the termination, under existing machinery that satisfies the requirements of the Termination of Employment Convention.”

39. Section 170EB has been considered by this Court many times, most authoritatively by the Full Court in Liddell v Lembke [1994] 56 IR 447.

40. The Full Court held that, before it declines to consider the application under Section 170EB, the Court must be satisfied that:

· The alternative remedy available to the employee is adequate when compared with the remedy available under the Industrial Relations Act 1988;

· The alternative remedy available to the employee is adequate when compared with the Termination of Employment Convention (though the Full Court preferred not to express a concluded view as to whether this comparison was required, it not being necessary to do so on the facts of that case); and

· The existing machinery under which that alternative remedy is available satisfies the requirements of the Termination of Employment Convention

41. The second parameter has been confirmed by Moore J in Grout v Gunnedah Shire Council (1994) 125 ALR 355 at 379 and by Lee J in Willcocks v Mafken Holdings Pty Ltd (IRCA No. 392 of 1995 at 13, 22 August 1995).

42. The remedy available from the Police Appeal Board on an appeal from a decision to impose a punishment of dismissal is limited to the Board’s power to modify or reverse any decision, finding or punishment appealed against or to “make any such other order thereon which the Board deems just...”: Section 33H of the Police Act 1892 (W.A.)

43. It is not necessary to make an exhaustive comparison between the Police Appeal Board machinery and the requirements of the Termination of Employment Convention, nor of the remedies available to the Board and those requirements to establish their inadequacy.

44. No criteria are set out in the Police Act as to when remedies should be made available to dismissed police officers. It might be argued that Section 33H of the Police Act 1892 (W.A.) requires the Board, in the exercise of any of its powers, to do that which it “deems just”.

45. There is no entitlement to a remedy before the Police Board where there is no valid reason for dismissal of the type specified by article 4 of the Convention (or by Section 170DE(1) of the Act), nor where the reason for dismissal is of a type prohibited by articles 5 or 6 of the Convention (or by Section 170DF of the Act). There is no entitlement to a remedy before the Police Board where an employee terminated for reasons related to his or her performance is denied the opportunity to defend himself or herself against the allegations made where the employer could reasonably have been expected to provide that opportunity, as is required by article 7 of the Convention (and by Section 170DC of the Act). Whether a remedy is granted is solely in the discretion of the Board which discretion, as I have noted, is subject to no criteria.

46. These matters alone are sufficient to establish that the Police Appeal Board could not, even were it available, have been an adequate alternative remedy for the purposes of Section 170EB.

Does the Doctrine of “Estoppel By Record” Apply Where the Police Appeal Board has Ruled on Mr Cook’s Dismissal?

47. The doctrine of estoppel by record holds that the judgment of a judicial tribunal of competent jurisdiction is conclusive as to the matters in controversy between the parties and decided upon by the court so that the parties to that proceeding will not be allowed to later question the decision nor contravene the truth of the matters decided upon and grounded in the judgment: eg Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 and Chamberlain v Deputy Commissioner of Taxation (Cth) (1988) 164 CLR 502 at 510.

48. This Court has had surprisingly few occasions to consider the application of this doctrine, in its various manifestations, to the exercise by this Court of its jurisdiction. It is an important issue, given the numerous tribunals in existence at a State and Federal level which might potentially rule on dismissals before they are brought to this Court, and it was not the subject of exhaustive submissions before me.

49. The few occasions when the Court has considered the issue provide little assistance in this case. I have already referred to Maggs’ case, where the Full Court of this Court directed that the application be heard on the merits, notwithstanding that Maggs had already appealed to the Disciplinary Appeal Committee of the Public Service, which had upheld the majority of the inquiry officer’s findings and affirmed the inquiry officer’s direction for dismissal.

50. The application of the doctrine of res judicata was not argued in Maggs’ case. This may be due to the fact that, under the Public Service Act 1922 (Cth), the termination of Maggs’ employment did not come into effect until after the exercise of or the lapsing of the right to seek a review by the Disciplinary Appeal Committee. He could not be said therefore to have elected to pursue his claim in one forum rather than the other, as the remedy in the Court did not become available until the remedy in the committee had been exhausted.

51. It appeared possible during submissions that Mr Cook might be in an analogous position.

52. Section 23(5) of the Police Act provides that:

“An order... for dismissal, shall not have effect unless or until -

(a) in the case of a member who is not an officer, or of a cadet, it is imposed and confirmed by the Commissioner; or

(b) in the case of an officer, it is confirmed by the Governor.”

53. Section 23(6) then provides that such an order not be submitted to the Governor for confirmation until the possibility of a successful appeal to the Board has been exhausted, either by the time for appeal having elapsed or by the Board having determined any appeal.

54. While in the submissions of the parties Mr Cook has been described by the term “police officer”, I am satisfied that as a constable in the Police Force, Mr Cook was a “member” of the Police Force rather than an “officer” for the purposes of the distinction drawn in section 23 of the Act. While these terms are not defined, it is apparent in the context of the Act that a constable is not an “officer”. For example, many of the sections preceding section 23 refer to “officers” (whether commissioned or non-commissioned) and “constables” as discrete groups.

55. Accordingly, because Mr Cook was a constable, the termination of the employment of Mr Cook took effect immediately, on 22 February 1995, so that he did not have to exhaust the appeal process to the Board before he could avail himself of the remedies available in this Court.

56. Mr Creewel submits that because Mr Cook elected to appeal to the Board, he is estopped by matter of record from litigating again in this Court his claim against the Commissioner, which Mr Creewel submits has already been determined by the Board.

57. In Blackham v Coal and Allied Operations Pty Limited (unreported, IRCA No. 623 of 1995, Walker JR, 29 November 1995), Walker JR held that the doctrines of estoppel, res judicata and abuse of process were not available to the Respondent, but his decision was based upon reasons peculiar to the Coal Industry Tribunal, where the earlier proceedings had been commenced.

58. In the present case, it was submitted by Mr Creewel that the determination of the Police Appeal Board met all the necessary criteria to give rise to estoppel by record. I will consider that submission in due course.

59. The broader question is whether the common law doctrine of estoppel by record has any application or the same application in relation to the statutory remedy conferred by Section 170EE of the Industrial Relations Act 1988, particularly having regard to the existence of Section 170EB.

60. The Act confers jurisdiction on the Court, and prescribes circumstances when the Court must decline to exercise that jurisdiction - that is, where an adequate alternative remedy is available to the applicant. Ms O’Brien submitted that they were the only circumstances in which the Court should decline to exercise its jurisdiction.

61. The doctrine of estoppel by record, in its various manifestations as res judicata (or “cause of action estoppel”), issue estoppel, estoppel by omission and abuse of process, is a well established common law doctrine, founded on obvious considerations of public policy. They are the public interest that there should be an end to litigation, and that no-one should be vexed twice for the same cause.

62. It cannot be that Section 170EB has the effect of completely supplanting the operation of estoppel by record. If that were so, then while, under Section 170EB, the Court would not hear claims where applicants had not availed themselves of alternative remedies the Court has found to be available and adequate, the Court would hear claims where applicants had already exhausted their access to those adequate, alternative remedies, because they are no longer available. That would be an absurd outcome.

63. It may be, however, that Section 170EB modifies the operation of the doctrine. It must be that a determination by a tribunal offering an adequate alternative remedy would give rise to estoppel by record. However, the common law doctrine of estoppel by record extends to any “judicial” tribunal which has the jurisdiction to decide finally a question arising between the parties; it does not apply to a determination that is administrative in character.

64. If applicants elect to first bring their claim to a tribunal which is judicial in nature but which would not be found to constitute an alternative adequate remedy, are they then estopped from seeking a remedy from this Court? In my view, they are not.

65. The analysis in support of this view begins from the premise that the Commonwealth legislature has set the standards it wishes to prevail in the determination of claims arising out of terminations of employment. It has set those standards by reference to the Termination of Employment Convention and by reference to the Act, which mirrors the Convention. Section 170CA, which makes it clear that the object of Part VIA, Division 3 is to give effect to the Convention, supports this premise.

66. It follows that any state legislation or common law doctrine is over-ridden by the Commonwealth Act to the extent of any inconsistency that would have the effect of having a lesser standard prevail in the determination of those claims.

67. I refer to the judgment of Gummow J in Wiest v DPP [1988] 23 FCR 472 at 526 where he observed that where the subject matter of the alleged estoppel is found in the decision of a body exercising its authority under State law, the question will arise as to the efficacy of proceedings under State law to pre-empt and prejudge issues involved in the subsequent determination of rights and responsibilities arising under federal law.

68. A ruling based upon this view has the effect, of course, that the applicant may have “a second bite at the cherry”, as Mr Creewel puts it. This will only be the case, of course, where the applicant has initially chosen an inadequate remedy. It is undesirable that respondents be required to spend time and resources litigating claims before another tribunal where that tribunal has been held or is likely to be held to be an inadequate remedy for the purposes of Section 170EB, so that this Court will not regard an applicant as bound by that Tribunal’s determination. In those circumstances, respondents may wish to seek a stay of those proceedings on the grounds that they cannot finally determine the dispute between the parties.

69. Even if I am wrong as to my general views on the applicability of the doctrine of estoppel by record to proceedings under this Division of the Act, I would have found that the doctrine of estoppel by record was not available to the respondent in any event.

70. On balance, I find that the Police Appeal Board is a competent tribunal exercising a judicial function. The Board’s function is to hear and determine appeals against decisions of the Commissioner. I have outlined above the powers and procedures at its disposal. It must apply the rules of natural justice. It purports to finally determine the issues before it. Other disciplinary tribunals in professional bodies and public service tribunals have been found to be sufficiently judicial in character to give rise to estoppel by record, or a statutory equivalent (eg Basser v Medical Board of Victoria [1981] V.R. 953).

71. I also find that the matters raised in the appeal before the Board amount to a claim that the decision to dismiss was “harsh, unreasonable and unjust”. This is the central matter in dispute on the merits before this Court, so that the facts giving rise to the statutory cause of action under the Act had previously been put before the Board. Ms O’Brien also put to the court an argument based on procedural unfairness which had not previously been put before the Board. It could have been put before the Board and might arguably be subject to estoppel by omission.

72. However, it is difficult to apply the common law doctrine of estoppel by record, based as it is on concepts of “cause of action” and “issues the proof of which are necessary to establish a cause of action”, to tribunals administering statutory remedies and discretions.

73. Being unaware of any binding authority to the contrary, I am persuaded by the reasoning of McHugh J in Cachia v Isaacs [1985] 3 NSWLR 366 at 388, a case concerning the NSW Consumer Claims Tribunal. McHugh J draws a distinction between statutory rights to orders and statutory causes of action. He suggests that where a tribunal makes a finding concerning an issue in dispute solely for the purpose of determining whether, as a matter of fairness and discretion, it should make an order, no issue estoppel would arise in respect of that issue. It is implicit in his argument that no cause of action estoppel can arise because the applicant is not pursuing a cause of action, merely a right to an order.

74. The Police Appeal Board exercises a broad discretion to review the decisions of the Commissioner, without the guidance of express criteria under the Police Act. I am of the view therefore that proceedings before the Board do not give rise to estoppel by record in any event.

Is A Police Officer an “Employee”?

75. Mr Creewel submitted that it was well settled at common law that Mr Cook, because he was a police constable, was a public officer. He was a public officer because he was personally invested with public duties including the duties to arrest offenders, keep the peace, prevent crime and protect property. While amenable to the discipline of his superiors in organisational and administrative matters, he could not be subject to any direction in the exercise of those public duties.

76. Mr Creewel further contended that, at common law, a person could not be both an employee and the holder of a public office. Therefore, the definition of “employee” under the Industrial Relations Act 1988, which imports the common law definition, precludes a police constable from being both an employee and the holder of a public office.

77. I was referred by both counsel to Re Australian Federal Police Association (No 2) [1993] 51 IR 122 at 135ff, a decision of Deputy President Williams of the Australian Industrial Relations Commission. Deputy President Williams had to consider whether police officers were employees for the purposes of the Industrial Relations Act 1988 in the context of an application by the Australian Federal Police Association to alter its membership rules.

78. Deputy President Williams held (supra, at 147) that police officers are employees for the purposes of the Act. Mr Creewel advised me that the decision was the subject of an appeal and submitted that it was wrong in law and should not be followed. Certainly I am not bound by it.

79. However, Deputy President Williams’ review of numerous relevant authorities is thorough and I found his analysis persuasive.

80. On Deputy President Williams’ analysis, the authorities support the proposition that a police officer is the holder of a public office, and that in the course of performing the duties of that office, a police officer exercises powers, authorities and discretions conferred by common law and by statute, and does so independently of the Crown. However, it was Deputy President Williams’ view that the authorities binding the Commission (and this Court) do not support the proposition that a police officer may not at the same time be an employee for the purposes of the Act; indeed there is significant judicial support for the contrary proposition. I concur with his view.

81. Deputy President Williams concluded that a police officer was not precluded from being an employee for the purposes of the Act by the fact that he or she exercised independent authorities. He concluded that the police officer’s position was analogous to that of other employees, aspects of whose work it was either impossible, undesirable or impractical to direct or control. He cited the example of the circus acrobat who was found by the High Court to be an employee in Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561.

82. It was acknowledged that there are in existence three awards of the Western Australian Industrial Relations Commission purporting to apply to members of the W.A. Police Force. Mr Creewel says they are not valid. Ms O’Brien cited two cases before the Western Australian Industrial Appeal Court where the W.A. Industrial Relations Commission’s jurisdiction was accepted. In one of those cases, Minister of Police v WA Police Union of Workers (1995) 75 WAIG 1504 at 1508, the Court noted that it was accepted by the parties that the Police Commissioner and members of the Police Force were respectively employer and employees in the industry of law enforcement. Mr Creewel advised that there was no formal concession by the W.A. Commissioner of Police on that point in that case. Rather, it had been agreed between the parties that the issue of the status of police officers would not be raised.

83. In any event, I do not consider the Commissioner to be estopped from raising the issue at this time.

84. Mr Creewel submitted that, given the doubtful status of police officers, had the legislature intended to include police officers within the meaning of the word “employee” in the Act, it would have done so specifically.

85. It was noted that Section 5(3)(e) deems matters of the Act pertaining to the terms or conditions of service of members or staff members of the Australian Federal Police to be industrial issues. However, the matters set out in Clause 3 of Schedule 1 of the Act, which includes the dismissal of Federal Police, are excluded from this deeming provision.

86. In my view Section 5(3)(e) does not affect the Court’s jurisdiction in Part VIA Division 3 in any event. The fact that it extends to “staff members” demonstrates that it was not motivated by concerns as to the definition of “employee” in the Act. Rather it seems likely to have been intended to avoid some of the difficulties inherent in the definition of “industrial dispute”.

87. Notwithstanding Mr Creewel’s submissions and the additional authorities cited by him, I find that Mr Cook, as a constable of the Western Australian Police Force, was an employee for the purposes of the Act. In reaching this conclusion, I have accepted the reasoning in Re Australian Federal Police Association (No 2).

88. In so holding I am not suggesting, as Mr Creewel put it, that a police officer is sometimes an employee and at other times shifts to the status of a public officer. Rather, a police officer is always an employee who is sometimes exercising the functions of and has the status of a public officer.

89. Mr Creewel further submitted that, if the Court found that Mr Cook was an employee, then the Court’s power to reinstate Mr Cook’s was limited to his status as an employee. He submitted that the Court had no power to restore Mr Cook’s status as a public officer. The Commissioner of Police had determined that Mr Cook was not fit to hold that status. The Court could make the Commissioner take Mr Cook on again as an employee, but not as a public officer.

90. On balance, I do not accept this proposition, though it best reveals the public policy considerations flowing from these issues. Mr Cook was a police constable. I have held that a police constable is an employee. If the circumstances justified it, the Court could order that Mr Cook be reinstated to his employment as a police constable. As a reinstated police constable part of Mr Cook’s functions would involve the performing of his duties as a public officer.

91. In essence, Mr Creewel is submitting on behalf of the Commissioner that the Commissioner (subject only to the Police Appeal Board) should be left to decide who is a fit and proper person to exercise the important public duties and responsibilities of a member of the W.A. Police Force, and that this Court has no jurisdiction to interfere.

92. I am not persuaded by the submissions based upon Mr Cook’s status as a public officer to accept that view. It may be that the constitutional argument would better support that view.

Was Mr Cook’s Period of Probation Reasonable?

93. Mr Creewel submitted that Mr Cook was excluded from the jurisdiction of the Court by Regulation 30B of the Industrial Relations Regulations. Given the concessions made by Ms O’Brien, the Court’s decision will turn on whether Mr Cook’s two year period of probation is found to be reasonable for the purposes of Regulation 30B(1)(c), having regard to the nature and circumstances of his employment.

94. The probationary period of police constables in the W.A. Police Force is highly structured and commences when they take their engagement or oath, having passed their entrance examination. They then complete six months of training at the Police Academy, followed by a further 18 months of rotation between different branches of the Police Force, designed to give them a range of experience. Throughout this period, they are required to pass numerous examinations and undergo periodic assessments. The probationary period ends at the conclusion of the two years.

95. In Nicolson v Heaven & Earth Gallery Pty Limited (1994) 1 IRCR 199 at 208-9, Wilcox CJ considered this issue:

“Whether or not the stipulated period is reasonable is a matter that has to be determined by the person hearing the case, as an exercise of judgment. The judgment should be based on the proved objective facts, not on someone else’s opinion. Probably the most important consideration, in determining what is a reasonable period, will be the nature of the job. In the case of a person employed to carry out repetitive duties under close supervision, a reasonable period may not extend beyond a week or two. In the case of a person employed in a marketing or managerial position, working with little or no direct supervision and whose quality of performance cannot be immediately apparent, it may be reasonable for an employee to specify a probationary period measured in months. Circumstances will vary from case to case; the size, location and mode of operation of the employer being relevant factors, along with the personal characteristics and circumstances of the employee. The legislature has not prescribed the maximum extent of a reasonable period. It is not for me to do so. But I suspect an employee will rarely be able to justify a period exceeding two or three months, in the case of an employee to whom Pt VIA now applies; that is, an award employee or a non-award employee whose wages do not exceed $60,000 per year.”

96. In Fischer v Commonwealth of Australia (IRCA No. 445 of 1995, 1 September 1995 at pp10-12), Wilcox CJ held that a two year probationary period permitted by the Public Service Act was not reasonable for the purposes of regulation 30B(1)(c). He noted that the period before confirmation, whereupon public servants obtain statutory rights denied to other employees, need not correspond with the period that would be reasonable for the purposes of regulation 30B(1)(c). Wilcox CJ saw no difficulty with a person having the protection of the unlawful dismissal provisions of the Industrial Relations Act although they were not a confirmed appointee under the Public Service Act.

97. I accept that the responsibilities vested in police constables would justify a longer period of probation for police constables than for most employees. I am not satisfied, however, that a two year probationary period is reasonable for the purposes of regulation 30B(1)(c). That does not mean that the W.A. Police Force should not retain a two year probationary period for the purposes of examination, training and assessment, only that constables will have the protection of the unlawful dismissal provisions of the Industrial Relations Act after a lesser period has elapsed.

98. With regard to “the personal characteristics and circumstances of the employee”, it is relevant that Mr Cook had been employed by the Commissioner as a police cadet for four years prior to his becoming a constable. While I accept that his supervision over those four years was not as rigorous and that his responsibilities were not as great I find, on balance, that it was not reasonable for the purposes of regulation 30B(1)(c) to impose a probation period on Mr Cook at all when he became a constable, given that he had already been an employee for many years.

99. Accordingly, I find that Mr Cook is not excluded from the jurisdiction of the Court by Regulation 30B.

Should Time to Apply Be Extended?

100. Because of the decision to first pursue proceedings before the Police Appeal Board, and then due to delay on the part of his solicitor, Mr Cook’s application was lodged with the Court almost 5 months out of time.

101. The principles relating to the grant of extension of time within which a claimant may make application are authoritatively and conveniently set out by Keely J in TWU v National Dairies Ltd (No 2) (1994) 57 IR 186 at pages 188 and 189.

102. I have set out my approach to the application of those principles in Patricelli v LJ Hooker Real Estate (IRCA No. 715 of 1995, RD Farrell JR, 16 November 1995).

103. Given my findings as to the merits, which I deal with below, it is not necessary for me to deal with the questions of prejudice to the respondent or explanation for the delay.

Findings as to the Events of 12 March, 1994.

104. The conduct originally relied upon by the Commissioner to justify Mr Cook’s dismissal is set out in the summaries of facts accompanying the internal disciplinary charges. A consolidated summary follows:

“At about 0200 hours, Saturday, March 12, 1994, police attended at the forecourt of the Entertainment Centre, Wellington Street, Perth where the defaulter (Mr Cook) was involved in a fracas with several other persons.

There is evidence that the defaulter was involved in a fight with three or four other male persons. During the course of this fight the defaulter punched one of those persons in the face dislodging two of his teeth. This punch injured the defaulter’s hand.

The situation was defused and all parties requested to leave the area. The defaulter approached a police patrol car which had been stopped at the scene and abused a female person who was in custody and seated in the front of the vehicle. He yelled at her calling her a white cunt, and that she was a copper’s cunt and was in the car to give them a blow job, and if she gave them a blow job she’d get off with it. (The woman in the car presumed this to mean whatever she had done.) The woman started to cry because of the abuse to which she had been subjected....

At about 0240 hours on March 12, 1994, Senior Constable Riegart and Constables Moore and Douglas responded to a call... to attend a fight outside Gobbles Nightclub in Wellington Street, Perth. At the time all three officers were working in plain clothes.

As the officers entered Wellington Street from Shafto Lane they saw two male persons, without shirts,... outside the nightclub. Both were in a highly agitated state.

They were shouting at the security staff and attempting to gain entry to the club.

All three officers approached these persons. As they approached, Constable Douglas advised Senior Constable Riegart that the taller man was Constable Fabian Cook. Senior Constable Riegart produced his certificate of identification to Cook who retorted - “I don’t give a fuck who the hell you are”.

Senior Constable Riegart attempted to quieten the defaulter down and endeavoured to ascertain what had happened. The defaulter was left near another police van, which had also attended, as the Senior Constable went to speak to another officer.

The defaulter ran past Riegart and started abusing another person and attempted to incite him into a fight.

Constable Douglas stood between the defaulter and this other person to separate them. The defaulter lashed out with his fist, punching the other person in the head. During the course of this punch, he also struck Constable Douglas a glancing blow to the left side of the face. Constable Douglas did not believe it was the defaulter’s intention to strike him.

The defaulter was eventually removed from the vicinity by the officers and told to go home and not return to the club.

The officers allege the defaulter was affected by alcohol at the time, a statement which he refuted.

Later that day, the defaulter attended the surgery of Doctor R. Foo in Kenwick who declared the defaulter medically unfit for one week.

The defaulter completed a medical certificate endorsing that the injury was not due to his own fault. He did so knowing he received the injury whilst off duty and during a fight outside the Entertainment Centre...”

105. In the hearing before the Commissioner, Mr Cook pleaded guilty to the disciplinary charges, and did not seek to challenge the accuracy of the accompanying summaries of facts, except to put them in context.

106. In this hearing, some of the matters set out in the above summaries were challenged and additional evidence was led to put the events in context. Mr Cook is not estopped from doing so, and I have accordingly placed no weight on his earlier decision not to challenge the above allegations.

107. In response to the evidence of Mr Cook in this hearing, the respondent led extensive evidence of numerous witnesses, including police who were involved, together with most of the other participants in and observers of the various altercations.

108. I have considered all this evidence, but will generally limit myself to setting out my findings as to what occurred in the early hours of the morning of 12 March 1994.

109. Mr Cook had gone out for the night with his girlfriend, identified only as “Rachel”, her friend, Naomi Ogilve (“Naomi”), his brother, Mr Troy Cook (“Troy”), and his cousin, Mr Donald Collard (“Donald”). They ended up at Gobbles Nightclub in Wellington Street in Central Perth.

110. I note the evidence of several of the police witnesses and the female civilian witness to the effect that Mr Cook appeared to be significantly affected by alcohol. However, I accept Mr Cook’s evidence that, while he had been drinking, he had not been drinking heavily, having drunk four cans of full strength beer over the whole of the night, and that he was not significantly affected by alcohol.

111. Just prior to 2.00am, Rachel left the nightclub with Naomi to get something to eat. While they were away, they were subject to abuse from some young men near a hot dog stand outside the Perth Entertainment Centre, which is across the road from the nightclub. Several of these men gave evidence. Mr David May-Wilkie (“Mr May-Wilkie”) gave evidence that he, Mr Adam Adler (“Mr Adler”), Michael Schneider (“Mr Schneider”) and Mr Brett O’Malley (“Mr O’Malley”) formed the group, some of whom were “being their typical chauvinistic selves”, “shooting their mouths off” and “carrying on” at the women. They had been drinking throughout the night, which was a celebration of Mr Schneider’s twentieth birthday. Mr O’Malley concedes he said some words which “weren’t very nice words” to the women. He concedes for example that he might have used the word “bitch”, and other words in that tone. Mr Adler agrees that his friends were yelling abuse at the women. He says words like “dogs” and “sluts” were used.

112. I was particularly assisted by the evidence of Mr Kevin Millington (“Mr Millington”), who was working in the hot dog van during these events. He was unique among the witnesses in that he was not a participant in the fight, knew none of the participants and had not been drinking. He gave his evidence in a manner which reinforced his status as a disinterested witness to the relevant events. While he volunteered that his memory of the events had deteriorated in the ensuing 20 months, he appeared careful to distinguish between those matters of which he had a clear recollection and those he did not clearly recall. I therefore prefer his evidence over that of all the other witnesses, to the extent of any inconsistency.

113. Mr Millington recalls the men saying a few things - the “usual remarks” when girls walk past, including a few whistles, and then calling the women “sluts” or something like that as they walked away.

114. Following their encounter with the men, the women returned to the nightclub, visibly upset, and complained about the abuse to Mr Cook. They told Mr Cook they had been propositioned by the men, had been offered money in return for sex and, when they declined, were called “sluts” and sworn at.

115. Mr Cook was angered and upset by what he had been told, and left the nightclub with the women to confront the men who had abused them. He says he wanted to obtain an apology from the men. Mr Cook came back to the hot dog stand with the women five to ten minutes later. Both Mr O’Malley and Mr Adler suggest that Mr Cook was accompanied by another man. I am satisfied that this was not the case, and in any event any other man is not said to have taken a role in the later events.

116. Mr Cook started asking questions about what was said, and who made the remarks. According to Mr Millington, Mr Cook was “really having a go to find out who said what”. He was aggressive. The women were egging him on. Mr Millington formed the view that Mr Cook was “aggravated at them. He was just agro at them, as if, you know - you know, basically looking for a fight. That’s what it seemed to me.” Mr Cook was “hassling one guy to find out who said it. You know, just giving him a hard time... The guy that was getting picked on just wanted to be left alone... He didn’t want anything to do with it.” By reference to the other evidence I have concluded the man referred to by Mr Millington was Mr O’Malley.

117. Mr Millington expressed the view that if Mr Cook had just “said his bit and walked away” there wouldn’t have been a problem, but “he just kept hassling and then eventually it ... just starts.” “He just pushed and pushed and, you know - he just pushed him too far...”

118. Mr May-Wilkie’s evidence is that Mr Cook threatened to “punch some blokes heads in”. Mr Adler says the men tried to defuse the situation and get out of it by saying it wasn’t them.

119. Mr O’Malley concedes he was drunk at the time of the incident. Mr O’Malley claims Rachel came up to him with Mr Cook, told Mr Cook “I think it was him” and slapped Mr O’Malley’s face. I make no finding as to the last claim. Mr O’Malley says he responded to Mr Cook by denying having said anything to Mr Cook’s girlfriend. He says he told Mr Cook he wanted no trouble. Mr O’Malley said he turned to walk away and Mr Cook punched him in the face, knocking his two front teeth out. He says he got up and immediately ran across to the other side of the road, away from the trouble.

120. Mr Adler says that after hitting Mr O’Malley, Mr Cook started to hit Mr Schneider, and kept hitting him. Mr Adler tried to pull Mr Schneider away. Mr Adler had his back to Mr Cook, and held Mr Schneider’s head to his chest. Mr Schneider was getting hit at the back of the head. Someone from the crowd intervened and pushed Mr Cook over, giving them a chance to move away.

121. According to Mr May-Wilkie, Rachel had pointed out Mr O’Malley as the loudest one, and in the course of the fight Mr Cook punched Mr O’Malley in the mouth resulting in two of his teeth being dislodged. Mr O’Malley retreated across the road. Mr Cook then started “laying into” Mr Schneider. Mr Adler intervened and was also punched by Mr Cook. In the course of the fight, numerous of the participants hit Mr Cook. Mr Cook’s girlfriend appears to have also been drawn into the fight. Mr May Wilkie believed her to have hit him several times and roughly pushed her away, causing her to fall over.

122. The independent witness, Mr Millington, says that after about ten minutes of verbal confrontation, Mr Cook “started punching into” one of the men. Mr Millington’s evidence is clear that Mr Cook threw the first punch. He did not observe what caused Mr Cook to throw the first punch. He assumed the recipient of the punch had said something. It was put to him that O’Malley pushed Mr Cook immediately prior to being punched. Because O’Malley had his back to Mr Millington, Mr Millington agreed he would not have seen such a push had it occurred. However, he thought it was unlikely, because they were not very close to each other at the time, and it had appeared Mr O’Malley wanted to get away.

123. Elsewhere in his evidence, Mr Millington said that prior to punches being thrown, Mr Cook was pushing the men, though it was clear from Mr Millington’s demonstration during his evidence that this was more in the nature of a confronting gesture than a forceful physical shove. When asked about their reaction, he says “they didn’t want to know anything about it. They just wanted to forget it”.

124. According to Mr Millington, initially the fight was between Mr Cook and the man he was hanging on to, who was smaller than Mr Cook. That man was trying to get away. Eventually someone else stepped in to break it up. He got in the middle between them. Cook was still trying to hit the first man. Mr Cook “just kept coming and coming”. Mr Cook wasn’t trying to stop. Mr Millington said he saw somebody get punched pretty hard. Later, Mr Millington saw one of the girls was kicking one of the men, who I identify from the other evidence as Mr May-Wilkie, in the leg repeatedly, so that eventually he pushed her and she fell over.

125. I find that Mr Millington has not distinguished between Mr Cook’s initial attack on Mr O’Malley and his later attack on Mr Schneider, but in other respects his evidence is consistent with the evidence of Messrs O’Malley, Adler and May-Wilkie.

126. Mr Cook’s evidence on this matter was somewhat hesitant. He accepts that he was yelling in an angry manner. He says that Rachel pointed the man out who she said was the “main person”, whom I understand to be Mr O’Malley. He says that Mr O’Malley “got upset or something with my attitude towards him and he told me... to fuck off and mind my own business, and then he got up and gave me a shove and told me to piss off... I reacted and I had a go back at him and that’s when we started wrestling... I felt threatened that he was going to hit (sic) me again and I didn’t want to give him the opportunity to hit me... I didn’t want to give him that opportunity to push me again because I felt threatened straight away... once I had defended myself we were wrestling on the ground and that’s when his mates all jumped on top of me...”

127. Mr Cook’s evidence in chief was notable for his use of euphemisms. He variously says he “reacted”, he “had a go” and he “defended himself”. In cross examination he said that he did not recall punching any of the men in the mouth, but conceded it was possible he could have punched Mr O’Malley in the mouth and knocked out two of his teeth. By contrast, in his earlier statement given during the internal investigation, Mr Cook says that one of the men pushed him, causing him to lose balance, and that he saw that that person was about to hit him, so he hit that person to prevent him from striking him.

128. I prefer the evidence of the other witnesses to that of Mr Cook. Mr Cook initiated the confrontational situation, and Mr Cook was primarily responsible for the escalation of that situation into a physical fight. He was not provoked in any meaningful sense.

129. Eventually bystanders intervened and then two policemen attended, having seen the fight as they were driving past in a police vehicle.

130. The police succeeded in breaking up the fight, and separating the participants. Both Sergeant Reindl and Constable Ross gave evidence. Sergeant Reindl says Mr Cook punched someone as they were trying to break the fight up. Later, when Mr Ross led him away from the others, he tried to get around Constable Ross, apparently to resume the fight. Mr Cook claims he was angered and provoked by Sergeant Reindl, whom he claims told him “Don’t put your chest out at me, you fucking little cunt”. This was denied by both the police officers involved, and on balance I find that it is more probable than not that those words were not said.

131. Mr Cook then followed Sergeant Reindl to the patrol car. There was a female passenger in the car, who gave evidence in the hearing. I accept her evidence, which was broadly consistent with that of Sergeant Reindl, that when Mr Cook followed the sergeant, he abused the sergeant, calling him a “fucking cunt policeman”. She says the sergeant spoke to Mr Cook in a loud voice, but wasn’t angry. She says the sergeant told Mr Cook to “Just calm down, go home and sleep it off”. Mr Cook admits that, out of frustration and anger, he abused the female passenger. His recollection is that he called her “a white cunt” and that he told her that “if she’d give the coppers a blow job she’d get off the charge of whatever she’d done”. I accept that he sincerely regrets having said these things, and note that he has since written to the woman involved conveying his apology. Mr Cook subsequently appeared in the Court of Petty Sessions to plead guilty to a charge pressed by the woman as a result of this abuse. It was dismissed as a first offence.

132. After the fight was broken up, the other men rejoined Mr O’Malley and they went back to the nightclub to wash up. Mr O’Malley’s evidence was that fixing his teeth cost $8000, and that he had stitches in his mouth for quite some time. Neither Mr O’Malley nor Mr May-Wilkie wanted charges laid against Mr Cook. Mr May-Wilkie’s view was that responsibility was equally on both parties.

133. Mr Cook and the women independently returned to the nightclub to rejoin Mr Cook’s relatives. In the nightclub, Rachel pointed out Mr May-Wilkie to Mr Cook as the man who had pushed her over.

134. Mr May-Wilkie says Mr Cook and Donald “chested up to” him, and that Donald head-butted him, causing a cut over his right eyebrow. I make no finding on that matter, as Donald has not had the opportunity to be heard. Mr May-Wilkie says Mr Cook head-butted him too, which Mr Cook denies.

135. Mr Cook, Donald and Troy were ultimately seized by the nightclub’s security personnel. Mr Cook said at the hearing that he was grabbed as he was about to approach Mr May-Wilkie to ask him if he had pushed Mr Cook’s girlfriend over and get an apology. He said he was still a bit angry but he doesn’t think he would have done anything. He said that at the time he was grabbed he was still a metre and a half away from Mr May-Wilkie. In a statement given during the police investigation, Mr Cook says he actually asked Mr May-Wilkie why he had pushed Rachel over.

136. I accept that Mr May-Wilkie was head-butted but I am not satisfied on the balance of probabilities that Mr Cook was involved.

137. Mr Cook, Donald and Troy were ejected from the front door of the nightclub. Mr Cook was held by the legs and the neck and forcibly carried from the premises, so that he found it difficult to breathe.

138. On being deposited outside the nightclub, Mr Cook and his companions remonstrated with the security personnel. In the course of this exchange, one of the security personnel head-butted Donald, and later began punching Troy. I accept that Mr Cook’s initial involvement in the subsequent scuffle was limited to an attempt to pull his companions away from the fight. In the course of the scuffle, Mr Cook’s shirt was ripped off.

139. When the plain-clothes police officers attended, I accept that Mr Cook was grabbed around the neck to pull him out of the melee. Mr Cook accepts that when the police officer identified himself, he responded “I don’t give a fuck who you are, you don’t grab me around the neck like that”, and explains he was angry because his neck was sore as a result of his earlier treatment by the security personnel.

140. Mr Cook says he did not recall punching anyone, but I accept the evidence of the police officers who attended that by the time they were breaking up the melee, Mr Cook was intent on rejoining the fray, and threw a punch which inadvertently struck Constable Douglas.

141. Mr Cook went home after this melee.

Whether There was a Valid Reason for Termination

142. Section 170EDA(1)(a) confers the onus on the employer to prove that there was a valid reason for the termination of the employee’s employment connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.

143. Having considered all the evidence placed before me as to the merits, I find that the Commissioner has amply demonstrated that Mr Cook’s behaviour on the evening of 12 March 1994 constituted a valid reason for Mr Cook’s dismissal, connected with his conduct.

144. The serious assaults on members of the public, abusive language to members of the public and fellow police officers and the sustained aggressive behaviour demonstrated by Mr Cook on the morning in question in my view constitute conduct clearly justifying dismissal of a police officer.

145. Whereas a civilian employee might successfully argue that fighting out of work hours is not relevant to their employment, that argument is not, in my view, available to a police officer. I accept that such conduct on the part of a police officer while he or she is off duty is relevant because:

· it is likely to bring the Police Force into disrepute; and

· it indicates a deficiency in the personal qualities required in a police officer.

Whether the Termination was Harsh, Unjust or Unreasonable

146. The next matter for determination is whether the termination is harsh, unjust or unreasonable.

147. Section 170EDA(1)(b) confers the onus on the employee to prove that, because the termination is harsh, unjust or unreasonable, there was not a valid reason for the termination.

148. The applicant failed to meet that onus.

149. I accept that Mr Cook’s prior conduct has generally been good. There was evidence of an earlier altercation in Carnarvon early in his cadetship when he was 18 years of age. I accept that this was too long ago to be given undue significance and, like the Commissioner, I have placed no weight on the Carnarvon incident.

150. I have taken into account Mr Cook’s personal circumstances, including the fact that he left his family in the country to come to the city to join the police force at an early age and the fact that he is aboriginal, and has therefore no doubt had to deal with the additional challenges in making his way in our society that flow from that.

151. I accept that Mr Cook displayed initiative, enthusiasm and perseverance during his years with the police force. I accept that the performance of his day to day duties was the subject of regular positive assessment throughout his employment. I have taken into account the character evidence which was led before the Commissioner and accept that the events of 12 March 1994 were out of character for Mr Cook based on his usual performance of his duties.

152. I accept that Mr Cook’s conduct would have been more serious had it occurred while he was on duty. He was out of uniform and most members of the public witnessing the events would not have known him to be a policeman.

153. The matters noted above are outweighed by the seriousness of Mr Cook’s departure from the standards of conduct required of him. This was not, in my view, a marginal case.

154. It was contended that the Mr Cook’s aggression on that night was due to provocation, and that he was provoked on a number of occasions throughout the 40 minute period. It is contended that it was not premeditated, and that it arose out of an emotional commitment. I have noted and accept that he is remorseful about his actions and that he has conveyed that remorse to the woman he abused outside the Entertainment Centre. I accept that the original abuse of Rachel and Naomi was the first event which led to the fight, but there were a number of intervening opportunities for Mr Cook to avert a fight. I am satisfied that the fight happened because Mr Cook was spoiling for it. As I have said, I do not accept that it was in any meaningful sense provoked. Even if Mr Cook was physically pushed by Mr O’Malley, as he claims, his reaction was grossly disproportionate. Similarly, his later abuse of Sergeant Reindl and his female passenger was, in the former case, at best grossly disproportionate to any provocation and, in the latter case, totally unprovoked.

155. It was also contended that it wasn’t made clear to Mr Cook that conduct of this sort while off duty could result in his dismissal. However, he agreed in cross examination that the importance of “controlled demeanour”, whether on or off duty, was made clear to him during his training. Constable Ross, while accepting the general proposition that a policeman was entitled to do what he wants off duty, went on to give evidence that Mr Cook’s actions on the night were not what Constable Ross would expect of a police officer. I do not accept that Mr Cook could have been unaware that such conduct was unacceptable for a police officer, even off duty.

156. With regard to the medical certificate, it was contended that Mr Cook honestly did not consider the injury to be his fault. He was not sure how it was incurred. If it was when he was fighting, then to the extent that he was fighting, he believed he had been provoked. He was not therefore intending to mislead anybody in completing the medical certificate as he did.

157. On that point, I accept the applicant’s position, on balance. Had the incorrect filling in of the certificate been the only grounds for dismissal then I would have found the dismissal to be harsh, unjust and unreasonable.

158. Finally, there was some evidence and submissions that there was a lack of parity in the penalty imposed on Mr Cook and that imposed on other officers who have fallen short of the standards expected of police officers. Leaving aside any short-comings in the nature of the evidence, I was not satisfied by the examples given that there was a lack of parity in the penalties imposed. Each of the incidents was significantly different from the current case. Many involved officers of considerably longer service. Lesser penalties, such as demotion, were available in many of those cases.

Procedural Fairness

159. Ms O’Brien also suggested in her closing submissions that there was procedural unfairness in Mr Cook’s dismissal. She concedes that he was spoken to twice by the Internal Investigations Branch and that there was a hearing before the Commissioner of the disciplinary charges. She contends however that he was not offered any counselling after the event, where he may have been able to explain what motivated him. She contends that the Police Force should have inquired into the origin of the behaviour, to see if it could be resolved.

160. I do not accept that the respondent’s failure to so inquire amounts to procedural unfairness. Neither Section 170DC nor Section 170DE(2) imposes a positive obligation on the respondent to construct a plea in mitigation for the Applicant.

161. Ms O’Brien’s other contention is that the Commissioner was biased or at least appeared to be biased in the hearing of Mr Cook’s charges. She relied upon the following comment of the Commissioner at the beginning of the hearing:

“I hope last time I made it clear at least to - - to you people that I wouldn’t have anybody coming here pleading guilty not knowing that they were likely to feel the full weight of section 23, and I made it clear that Constable Cook was certainly in grave jeopardy as far as his continuance in this agency.”

162. I don’t consider this statement to be inappropriate. It conveys to Mr Cook the potential seriousness of his position without, in my view, asserting a concluded view as to the outcome.

163. I am satisfied that there was no procedural unfairness in Mr Cook’s dismissal.

Conclusion

164. Having carefully considered all the evidence, the case against Mr Cook on the merits is overwhelming.

165. Accordingly, I will order that Mr Cook’s application under Section 170EA(3) of the Act for an order that time for filing be extended be dismissed.

I certify that this and the preceding 32 pages

are a true copy of the reasons for decision of

Judicial Registrar R.D. Farrell.

Associate:

Dated:

APPEARANCES

Solicitors for the applicant: Aboriginal Legal Service of Western Australia (Inc)

Counsel appearing for the applicant: Ms M. O’Brien

Solicitors for the respondent: Crown Solicitor for the State of Western Australia

Counsel appearing for the respondent: Mr T.A. Creewel

Dates of Hearing: 1, 2, 9, 10 and 27 November 1995

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