Commissioner of Police v Bennett [2011] NSWIRComm 17 (4 March 2011)

Last Updated: 15 March 2011

Industrial Relations Commission New South Wales

Case Title:	Commissioner of Police v Bennett
Medium Neutral Citation:	[2011] NSWIRComm 17
Hearing Date(s):	29 October 2010
Decision Date:	04 March 2011
Jurisdiction:
Before:	Boland P, Walton VP, Kavanagh J
Decision:	1. Leave to appeal is granted. 2. The appeal is upheld to the extent determined in this decision. 3. The appeal is dismissed to the extent determined in this decision. 4. The orders at first instance are confirmed. 5. The stay order made by the consent of the parties on 29 June 2010 is dissolved. 6. The Full Bench directs that the appellant shall provide written submissions regarding costs within seven days of this decision. The respondent shall have a further seven days in which to respond. Unless there is an application by either party to be heard orally on the question of costs, the question shall be determined on the papers.
Catchwords:	APPEAL - Police - Police officer medically discharged because she was unable to undertake the full scope of her duties due to injury - Officer claimed lump sum payment under the terms of relevant industrial instrument - Employer resisted claim for lump sum payment on the grounds that the officer had refused reasonable offers of suitable positions within the Police Force - Held at first instance officer was entitled to lump sum payment - Consideration on appeal of what is a reasonable offer and what is a suitable position - Consideration of the statutory/regulatory context and what weight should be given to the personal circumstances of an injured police officer versus the weight to be given to the employer's right to transfer officers in order to retain them in the Police Force - Consideration of the public interest in retaining injured officers in the Police Force where a suitable position can be found - Suitable position involves objective test - Held that personal circumstances of an officer are a secondary consideration to the retention of an officer in the Police Force - Officer's personal circumstances would only outweigh the public interest in retaining officers in exceptional cases - Held this was an exceptional case - Whilst error at first instance no basis to uphold appeal - Leave to appeal granted - Appeal dismissed POLICE - Appeal - Police officer medically discharged because she was unable to undertake the full scope of her duties due to injury - Officer claimed lump sum payment under the terms of relevant industrial instrument - Employer resisted claim for lump sum payment on the grounds that the officer had refused reasonable offers of suitable positions within the Police Force - Held at first instance officer was entitled to lump sum payment - Consideration on appeal of what is a reasonable offer and what is a suitable position - Consideration of the statutory/regulatory context and what weight should be given to the personal circumstances of an injured police officer versus the weight to be given to the employer's right to transfer officers in order to retain them in the Police Force - Consideration of the public interest in retaining injured officers in the Police Force where a suitable position can be found - Suitable position involves objective test - Held that personal circumstances of an officer are a secondary consideration to the retention of an officer in the Police Force - Officer's personal circumstances would only outweigh the public interest in retaining officers in exceptional cases - Held this was an exceptional case - Whilst error at first instance no basis to uphold appeal - Leave to appeal granted - Appeal dismissed
Legislation Cited:	Industrial Relations Act 1996 s 3(a), s 10, s 187, s 188 Police Act 1990 s 8, s 69(5), s 87(1)
Cases Cited:	Bennett v Commissioner of Police (No 1) [2010] NSWIRComm 25 Bennett v Commissioner of Police (No 2) [2010] NSWIRComm 70 Broughton v London & North Eastern Railway Company [1930] 1 KB 578 Eyre v Houghton Main Colliery Company Ltd [1910] 1 KB 695 Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345 Glamorgan Coal Co v South Wales Miners' Federation [1903] 2 KB 545 Hines v Workcover/HIH (Transfer Maintenance Pty Ltd) Corporation [2000] SAWCT 171 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 McDonald v North Coast Area Health Service [2001] NSWCCPD 50 Opera House Investment Pty Ltd v Devon Buildings Pty Ltd [1936] HCA 14; (1936) 55 CLR 110 Percic v Broken Hill Pty Co Ltd (1973) 6 SASR 1 R v Archdall and Roskruge; ex parte Carrigan [1928] HCA 18; (1928) 41 CLR 128 Samuels v BT Australasia Pty Ltd (2007) 168 IR 231 Stimson v NSW Police Service [2008] NSWIRComm 196 Western v Union Des Assurances De Paris (1996) 88 IR 259 Workers Rehabilitation & Compensation Corporation v James (1992) 57 SASR 365
Texts Cited:
Category:	Principal judgment
Parties:	Commissioner of Police (Appellant) Michelle Bennett (Respondent)
Representation
- Counsel:	Mr M Kimber SC with Mr A Britt of counsel (Appellant) Mr B Dooley SC with Mr T R Edwards of counsel (Respondent)
- Solicitors:	Blake Dawson Lawyers (Appellant) Slater and Gordon Lawyers (Respondent)
File number(s):	IRC 480 of 2010
Decision Under Appeal
- Court / Tribunal:
- Before:
- Date of Decision:
- Citation:
- Court File Number(s)
Publication Restriction:

Judgment OF THE FULL BENCH

1

This is an application by the Commissioner of Police for leave to appeal and to appeal pursuant to ss 187 and 188 of the Industrial Relations Act 1996 from two judgments and orders of Haylen J given on 1 March 2010 and 1 June 2010: Bennett v Commissioner of Police [2010] NSWIRComm 25 (' Bennett (No 1) ') and Bennett v Commissioner of Police (No 2) [2010] NSWIRComm 70 ( 'Bennett (No 2) ') respectively.

2

In Bennett (No 1), which involved proceedings pursuant to the provisions of s 365 of the Industrial Relations Act, Haylen J held that the respondent, Michelle Bennett, a former police officer, was entitled to a lump sum payment under cl 19 of the Crown Employees (Police Officers Death and Disability) Award 2005 ('the Award'). The lump sum was an amount of $439.956.97. Bennett (No 2) concerned the question of costs and, in particular, indemnity costs. His Honour made the following orders:

(a) Ms Bennett qualifies for a payment under cl 9.3 of the Crown Employees (Police Officers Death and Disability) Award 2005;

(b) the respondent is to pay the applicant the amount of $439,956.97 within twenty-eight (28) days;

(c) the applicant, Ms Bennett, is to be paid her costs of the application calculated on a party/party basis until and including 17 November 2009 and from 18 November 2009 is entitled to her costs calculated on an indemnity costs basis, less the sum of $3,500.

The orders were stayed by consent of the parties pending the outcome of the appeal.

Factual Background

3	The appeal concerns a former police officer who was medically discharged because she was unable to undertake the full scope of duties required of a police officer due to an ankle injury. At the time of her discharge the respondent was on 'Permanent Restricted Duties' ('PRD').

4

Although attempts were made to find a suitable position for the respondent, for personal, business and family reasons Ms Bennett did not accept any of those positions that were identified. Under the terms of the Award, there was a mutual obligation on both the employer and the injured officer to identify suitable police positions for redeployment and it was the injured officer's responsibility to accept a reasonable offer made by the employer of a suitable police position, including transfer to another location. The Award specifically stated that a failure to accept one of three reasonable offers of a suitable police position would jeopardise any benefit or entitlements payable under the Award and may result in medical discharge.

5

Following Ms Bennett's refusal to accept the positions offered to her, she was medically discharged from the Police Force. Thereafter, she brought proceedings pursuant to s 365 of the Industrial Relations Act claiming that the Police Force were obliged to pay her a lump sum under the terms of the Award because, there were, in fact, no suitable positions available to her. The Commissioner of Police resisted Ms Bennett's claim, but Haylen J held that on the proper interpretation of the relevant Award provisions, Ms Bennett was entitled to a lump sum payment under the terms of the Award.

6	At first instance, the appellant made a number of admissions, namely, that the respondent:

(a) was in employment covered by the Award;

(b) suffered an on duty injury;

(c) was, at the time of her termination, incapable of performing full operational duties. That is, she was unable to return to her pre-injury employment;

(d) was suffering a partial and permanent disability;

(e) did not consent to being considered for redeployment to an administrative officer position;

(f) was medically discharged by the appellant and her last day of service was on 22 December 2006;

(g) was 34 years old at time of discharge; and

(h) was entitled to an annual rate of remuneration at the time of termination of $58,930.

7

The respondent commenced employment with the appellant on 18 May 1997. In June 2000, the respondent suffered an on duty injury to her right ankle but continued to perform general duties. In September 2003, the respondent's partner purchased a Lenard's Chicken Franchise in Dubbo. At her request, Ms Bennett secured a transfer to Wellington Police Citizens Youth Club ('PCYC') on 7 December 2003. On 22 March 2004, Ms Bennett secured a transfer from Wellington to Dubbo PCYC. On 24 October 2004, the respondent transferred to Orana LAC performing general duties.

8

On 4 November 2004, when required to undertake an operational support training exercise, the respondent informed the Area Commander, Superintendent Smith, of her previous injury and did not undertake training. The respondent was then placed on restricted duties. The respondent indicated in cross-examination that she never wanted to perform restricted duties.

9

On 10 December 2004, the respondent commenced a Return to Work plan that involved mainly station duties. On 18 February 2005, the Return to Work plan was extended to May 2005. On 12 May 2005, Ms Bennett was referred to Dr Slater who performed an operation on the respondent's foot on or about 24 October 2005. On 14 November 2005, the respondent's Return to Work plan was extended again. On 17 January 2006, Superintendent Smith wrote to Dr Slater asking whether the respondent would ever return to operational duties. On 9 February 2006, Dr Slater confirmed that the respondent was permanently unable to return to full operational duties. Based on Dr Slater's advice the Orana LAC prepared an application for Ms Bennett's medical discharge. On 22 February 2006, the Application for medical discharge of the respondent was forwarded to the Medical Discharge Unit. On 23 February 2006, the respondent was advised she was to be medically discharged. The respondent said she neither sought nor consented to the discharge.

10

On 28 March 2006, the respondent was referred to the Permanent Restricted Duties Unit headed by Inspector Phillip Salt. On 18 April 2006, Inspector Salt wrote to the respondent annexing a list of PRD positions. On 1 May 2006, Inspector Salt spoke to the respondent for the need of a rsum. The respondent indicated she would prepare a rsum and informed Inspector Salt that she wanted to get back to full duties and that she needed to stay in Dubbo. Inspector Salt said that would be difficult and outlined some of the jobs in Sydney.

11

On 9 May 2006, Inspector Salt wrote to the respondent annexing a further list of PRD positions, which he said 'subject to a very informal selection process we would be in a position to offer you'. He indicated that the 'unfortunate reality' was that the vast majority of 'suitable police positions' for Restricted Duties Officers was in the greater Sydney Area. He encouraged the respondent to monitor the Bulletin board for vacancies.

12	On 17 May 2006, Superintendent Smith sought a further worksite assessment due to the respondent requesting alternate duties. On the same day Orana LAC received a letter from the respondent's solicitors regarding payment for 'permanent impairment'.

13

On 22 May 2006, the vacant Intelligence Officer position at Orana LAC was advertised state-wide. On 29 May 2006, Inspector Salt wrote to the respondent annexing a further list of PRD positions. On 6 June 2006, the respondent prepared a report for Inspector Salt stating: 'Ideally I would like to remain in Dubbo, Orana Local Area Command on general duties ...' and 'if I could obtain a permanent restricted duties position at the Dubbo station I would like to be appointed in the position of Assistant Rosters or Assistant EDO'.

14	On 13 June 2006, Superintendent Smith wrote to Inspector Salt advising there were no PRD positions available for the respondent. On 3 July 2006, Inspector Salt replied to Superintendent Smith criticising his attitude and urging him to reconsider his position.

15

On 30 June 2006, the respondent attended HealthQuest. On 12 July 2006, Inspector Salt wrote to the respondent 'offering' positions in Tamworth and Newcastle as Communications Officer. On 21 July 2006, Inspector Salt, noting there were no PRD positions at Orana LAC, wrote to the respondent annexing a further list of PRD positions. On 25 July 2006, the respondent wrote to Inspector Salt rejecting offers outside of Dubbo due to 'both personal and financial reasons', namely, her partner had a successful business in Dubbo and both the respondent and her partner had family in surrounding areas. The 'family' consisted of the respondent's mother in Cowra who had been ill for many years and required care and her partner's mother in Orange. The respondent's partner's father died sometime prior to 11 August 2006.

16

On 28 July 2006, Inspector Salt wrote again to the respondent asking whether she consented to redeployment to an administrative position. On 7 August 2006, the respondent wrote to Inspector Salt and informed him she did not consent to redeployment to an administrative position. On 11 August 2006, the respondent again wrote to Inspector Salt stating she was 'unable to relocate from the Dubbo area due to personal and financial reasons'. The respondent also advised the Inspector that she was nine weeks pregnant with her first child. On 15 August 2006, the respondent's case was 'suspended' by the PRD Unit because a suitable vacant position acceptable to the respondent had not been found.

17

On 23 October 2006, Inspector Salt offered the respondent a 'modified' Intelligence Officer position at Dubbo. On 24 October 2006, the respondent replied, rejecting the position on the basis she had experience of that work and did not like it and wanted to either be an operational officer or be discharged. The respondent said that the Intelligence Officer work she had performed was entirely different to the type of duties she had previously performed in relation to the paper work involved.

18

On 24 October 2006, Inspector Salt again wrote to the respondent asking that she reconsider her position about refusing the Intelligence Officer position at Dubbo and encouraging her to take the position. On 20 November 2006, the respondent again declined. On 23 November 2006, the PRD Unit again suspended the respondent's case.

19

On 5 December 2006, HealthQuest recommended the respondent's discharge. On 12 December 2006 the Commissioner wrote to the respondent confirming her medical discharge. Her last day of service was to be 22 December 2006. Also on 12 December 2006 the respondent's General Practitioner supported the recommendation about the position of Intelligence Officer being suitable. On 13 December 2006, the Death and Disability Administration Unit made a recommendation that the respondent not be entitled to payment under the Award because of a failure to comply with cl 9.2. That provision states, inter alia , that 'it is the injured officer's responsibility to accept a reasonable offer of a suitable police position made by the employer, which may include transfer to another location'. The Commissioner confirmed that there would be no payment under the Award.

20	The chicken business at Dubbo was sold and the respondent and her partner were out of that business on 14 October 2007. On 21 November 2007, the respondent filed an application for recovery of money pursuant to s 365 of the Industrial Relations Act .

21	In about February 2008, the respondent and her partner bought a motel in Parkes. The respondent now lives in Parkes and works as a 'motel operator'.

First instance decision

22	After setting out the background to the proceedings Haylen J identified the relevant Award provisions. We note, in particular, the following provisions:

1.2 The intentions and commitments of this Award are to:

1.2.1 Provide benefits on medical discharge in the event that an on duty or off duty injury results in the death or total and permanent disablement or partial and permanent disability of a police officer.

1.2.2 Provide rehabilitation and retraining in the event that an on duty or off duty injury, results in a police officer suffering partial and permanent disability.

...

"partial and permanent disability" means the police officer's cessation of employment was substantially due, directly or indirectly, to the permanent physical or mental disability of the police officer (not caused by any act or default of the police officer intended to produce an injury leading to that disability) and that the police officer is, when the police officer ceases to be employed by NSW Police, permanently unable, by reason of that disability, to perform the duties that the police officer was required to perform before the police officer suffered the disability.

...

9. Rehabilitation, Retraining and Lump Sum Payments for Police Officers Who Suffer Partial and Permanent Disability

9.1 The lump sum payments prescribed by this clause are payable by NSW Police. In order to be entitled to a benefit pursuant to this Clause, a police officer must engage in the provisions outlined within this Clause.

9.2 There is a mutual obligation on both the employer and injured officer to identify suitable police positions for redeployment. However, it is the injured officer's responsibility to accept a reasonable offer of a suitable police position made by the employer, which may include transfer to another location. A failure to accept one of three (3) reasonable offers as per the Permanent Restricted Duties Policy of a suitable police position will jeopardize any benefits or entitlements payable under this award and may result in medical discharge.

9.3 A police officer who suffers an on duty injury shall receive rehabilitation/retraining consistent with agreed policies, which are annexed to this award, leading to a return to pre-injury employment wherever possible.

9.3.1 Where a return to pre-injury employment is not possible, as determined by HealthQuest, or other medical assessor agreed by the parties, the officer will be declared as suffering a partial and permanent disability and opportunities for placement in a suitable police position or as a permanent restricted duties police officer will be sought. At the same time, the police officer, with their consent, will be considered for redeployment to an administrative officer position.

9.3.2 If placement in a police position within the NSW Police is not possible and redeployment to an administrative officer position is not agreed to by the officer, the employment of the police officer may be terminated. In such circumstances the police officer, subject to eligibility being established, shall be paid a lump sum payment in accordance with Annexure B to this Award.

9.4 A police officer who suffers an off duty injury shall receive rehabilitation/retraining consistent with agreed policies, leading to a return to pre-injury employment wherever possible. No direct medical or rehabilitation costs will be met by NSW Police for off duty injuries.

9.4.1 Where a return to pre-injury employment is not possible as determined by HealthQuest, or other medical assessor agreed by the parties, the officer will be declared as suffering a partial and permanent disability and opportunities for placement in a suitable police position or as a permanent restricted duties police officer will be sought. At the same time, the police officer, with their consent, will be considered for redeployment to an administrative officer position.

9.4.2 If placement in a police position is not possible and redeployment to a [sic] administrative officer position within the NSW Police is not agreed to by the officer, the employment of the police officer may be terminated and, in such circumstances, the police officer shall be paid a lump sum payment equivalent to the unexpired portion of the two years full salary or full salary to age 60 (whichever is the lesser). The two year period commences when medical evidence indicates that an officer is not able to return to their pre-injury employment.

9.5 The objective of the rehabilitation/retraining program creates mutual obligations, which is for every police officer who suffers partial and permanent disability to be placed in a suitable police position within NSW Police, wherever reasonably practical.

9.6 An adequate opportunity will be given to the police officer concerned and the Association (unless the police officer expressly declines to agree to the Association being informed) to consider the NSW Police opinion that no suitable position is available and to put that opinion into dispute in accordance with the dispute resolution clause of this Award prior to medical discharge.

23	His Honour also set out the terms of the appellant's PRD policy at [4]. We shall refer to this Policy in more detail later, but particularly relevant provisions of the Policy are as follows:

MUTUAL OBLIGATION

There is a mutual obligation on both the employer and injured officer to identify possible suitable positions for redeployment.

However, it is the injured officer's responsibility to accept any reasonable offer made by the employer which may include transfer to another location. A failure to accept a reasonable offer of a suitable position may jeopardise workers compensation entitlements and may result in medical discharge.

DISTRIBUTION OF PERMANENT RESTRICTED DUTIES OFFICERS

To ensure that the High Visibility Policing Policy is not compromised, as a general guideline, the total number of restricted duties officers in individual Commands will be limited. For instance, on average, to no more than five restricted duties officers per Local Area Command.

Across the State there is potential for permanently restricted staff to perform functions that would otherwise have to be performed by fully operational police.

...

Local Area Commands

It should be noted that the figure five (5) is not absolute, as it clearly depends on other factors such as availability of authorise positions, size, location and individual circumstances of each LAC.

...

CO-ORDINATION OF THE PLACEMENT OF RESTRICTED DUTIES OFFICERS

Co-ordination of the placement of restricted duties officers is managed by the Restricted Duties Co-ordination Unit (RDCU), which is attached to the Health Services Directorate.

The Unit is tasked with:

Promulgating the Restricted Duties Policy throughout the organisation.

Liaising with Region Return to Work Co-ordinators to ensure that officers being considered for medical discharge against their wishes are referred to the Unit before the discharge application is acted upon.

Negotiating the placement of suitable restricted duties police with relevant Commanders.

Ensuring that ongoing protocols for the management and placement of permanently restricted officers are adhered to.

Region Return to Work Co-ordinators will make all reasonable efforts to return injured officers to their pre-injury employment. Once it becomes apparent that:

-an officer will never be able to return to their pre-injury employment; and

- the officer does not wish to be medically discharged,

the Commander / Return to Work Co-ordinator will refer the case to the RDCU.

On receipt of a referral, the RDCU will interview the officer and explain the restricted duties options available to them. Subject to the outcome of this initial review, the Unit will:

Make all reasonable efforts to place the officer in a suitable position (in one of the duty types set out earlier in this document), either at their own Command or other location. For a minimum period of 3 months, subject to officers receiving reasonable offers of employment.

If this is not possible, refer the officer if he / she so wishes, to the Redeployment Officer, Workforce & Careers to seek employment as an administrative officer. For a period of 12 months, subject to an officer receiving and accepting reasonable offers of employment.

If the first two options fail, refer the Officer to his / her Commander for medical discharge consideration.

...

CONCLUSION

The introduction of the Restricted Duties Policy heralds a new era in the management of officers who are unfortunate enough to experience protracted periods of ill health or injury.

NSW Police is committed to ensuring that all reasonable steps are taken to facilitate the placement of permanently injured police officers into suitable duties, wherever practical. Such action not only maximises the potential of individual members of staff, but also ensures that the expertise of such officers is not lost to the organisation.

Implementation of the Policy will require goodwill by all affected parties. However, it is hoped that it will lead to improved efficiencies in the management of long term sick leave and a reduction in the number of officers seeking to disengage from the organisation on health grounds.

24	At [5] Haylen J referred to s 8 - Commissioner to manage and control NSW Police Force; and s 69 - Transfer of non-executive police officers of the Police Act that were said to be relevant. His Honour also set out the Transfer and Tenure Policy. In that Policy it was stated:

Officers must recognise that personal preferences, while taken into account, may not always be achievable and the interests of the NSW community will be given priority.

25

At [8]-[74] Haylen J summarised the evidence of the four witnesses, namely, the respondent, Dr Anthony Durrell (a consultant and forensic psychiatrist, Ms Bennett presented for psychiatric assessment by Dr Durrell in mid-February 2009 and he provided a report dated 5 March 2009), Inspector Phillip Salt and Ms Kerry Seaton, Local Area Manager of Orana Local Area Command.

26	At [75]-[80] Haylen J dealt, correctly in our view, with the relevant principles applicable to the interpretation of industrial awards. At [82] his Honour set out the questions to be considered:

(a) whether the applicant has engaged in the provisions of cl 9 as required by cl 9.1 of the award (that is, undertake the mutual obligation/identifying suitable positions for redeployment and to accept a reasonable offer of a suitable police position as well as participating in rehabilitation and retraining)?;

(b) whether Ms Bennett discharged her "mutual obligation" to identify suitable police positions for re-deployment?;

(c) whether Ms Bennett was under an award obligation pursuant to cl 9.2 to accept positions in the Sydney metropolitan area or in Tamworth and Newcastle?;

(d) whether it was "a reasonable offer" of a "suitable police position" to be offered positions outside of the Orana LAC in light of Ms Bennett's known personal, business and family commitments in Dubbo?;

(e) whether an offer of a position is "reasonable" and "suitable" is limited to a consideration of the duties of the position or whether the award contemplates that appropriate personal circumstances as well as business and domestic arrangements are to be considered and that those arrangements may result in an offer of re-deployment being neither "reasonable" nor "suitable" or alternatively, of being "suitable" but not "reasonable".

27

At [84]-[86] Haylen J considered the dictionary meaning of 'reasonable' and 'suitable' as those words are used in cl 9.2 of the Award. His Honour also considered the approach adopted by courts to 'reasonable' and 'suitable employment' in other contexts, particularly workers compensation, with particular reference to Eyre v Houghton Main Colliery Company Ltd [1910] 1 KB 695; Broughton v London & North Eastern Railway Company [1930] 1 KB 578; Percic v Broken Hill Pty Co Ltd (1973) 6 SASR 1; Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345; Workers Rehabilitation & Compensation Corporation v James (1992) 57 SASR 365; Western v Union Des Assurances De Paris (1996) 88 IR 259; Hines v Workcover/HIH (Transfer Maintenance Pty Ltd) Corporation [2000] SAWCT 171; McDonald v North Coast Area Health Service [2001] NSWCCPD 50; and Samuels v BT Australasia Pty Ltd (2007) 168 IR 231.

28	At [107] Haylen J found that the PRD Policy had been incorporated into the Award. At [108] his Honour analysed in considerable detail the provisions of cl 9 of the Award. In that respect, his Honour stated in relation to cl 9.2:

Having regard to dictionary definitions of "suitable", it is a word capable of meaning not only fitted for but something that is appropriate to a person's character, condition, needs etc. The person's particular circumstances are therefore to be considered. On the evidence an officer, broadly speaking, is to have the base attributes for the position but a suitable position is not necessarily one that the officer can immediately undertake without further training. A "reasonable" offer arguably extends the provision or confirms the extended meaning of "suitable" in the phrase, and according to its normal English meaning involves the concept of being suitable in all the circumstances, acting in accordance with the dictates of reason or being rational, honest, equitable, fair, suitable, moderate and tolerable action. The word "reasonable" refers to having a direct relation to the subject matter arising between the parties, again suggesting a focus on personal circumstances. Here, the award, including the Policy, appears to focus on not only what the employer might regard as reasonable but encompasses a consideration of the relevant circumstances of the officer. Importantly, the provisions do not operate on the exercise of the Commissioner's power to transfer or place an officer nor does it operate simply on the basis that an officer can perform the role. These matters suggest that the parties intended that the entire phrase would operate in a wider context. Nevertheless, there is an obligation on the officer to accept a reasonable offer of a suitable police position that "may" include transfer to another location once such a position is identified. By use of the word "may", the award clearly indicates that transfer is not mandatory but it is a possibility: the provision does not operate on the basis that an injured officer must transfer to a new location if no other place is found. Under both the Policy and in accordance with Inspector Salt's evidence, the acceptance of a position must be not only agreeable to the officer but also agreeable to the LAC in which the position arises. This clause then goes on to state that a failure to accept one of three reasonable offers of a suitable position "will jeopardise any benefits or entitlements" yet "may" result in medical discharge. Here, the language is difficult. The failure of acceptance "will jeopardise" the benefits but only "may" result in medical discharge suggesting that it may be possible to refuse three such offers yet not be medically discharged. Continuing in employment would, however, result in no lump sum benefit being paid.

29	In relation to cl 9.3.1 his Honour relevantly stated:

This clause then proceeds to state that, with the consent of the officer, the officer can be considered for redeployment in an administrative officer's position and this appears to be a reflection of the provisions of the Police Act: this provision, however, having regard to the evidence and the content of the award and the PRD Policy, cannot be taken to draw a distinction between requiring consent to be redeployed as an administrative officer but being able to be directed to take up reasonable offers of a suitable police position. As earlier indicated, all the evidence as well as the provisions of the award and the policy operate on the basis that the officer has to consent to such a placement and there is no award provision for the Commissioner to step in and direct an officer to take up specified duties in a nominated location although that power is generally available to the Commissioner under the Act. The award appears to go to some lengths to establish a different, flexible and compassionate regime for injured officers.

30	In relation to cl 9.5 his Honour stated:

clause 9.5 provides that the objective of the Rehabilitation/Retraining programme creates mutual obligations, including obligations for every officer who suffers a permanent partial disability "to be placed in a suitable police position wherever reasonably practical". This clause again refers to only a suitable police position but must be taken to also cover a PRD position and introduces for the first time the placement in a suitable police position "wherever reasonably practical". As referred to earlier, the expression "reasonably practicable", a very similar concept, is not novel. The cases refer to the word "reasonably" in the expression as limiting or qualifying what could otherwise be an almost absolute obligation. Practicability and reasonableness may on occasions operate in opposing senses. The cases also refer to where a nominated subject is "reasonably practicable" as distinct from merely "practicable", that phrase may direct attention to a range of considerations, including factors relating to the person as well as the interests of other parties who may be directly affected and regard may need to be had to "all the circumstances". The use of this phrase reinforces the intention that the earlier sub-clauses are to operate on the basis of a wide consideration that must include the circumstances of the officer and that the award provisions are not confined to a simple analysis of whether the injured officer can perform the work (in the sense that the position is suitable) nor is it confined to a situation where only the employer's view of "reasonableness" is to be considered.

31	At [109] and [110] Haylen J closely analysed the PRD Policy and the Transfer Policy. His Honour observed in relation to the PRD Policy:

This part of the Policy then states that final placement decisions will need to be determined on a case-by-case basis and need to be agreed to by "all relevant stakeholders". The reference to a determination on a "case-by-case" basis suggests that individual circumstances are to be considered. This statement, however, suggests that an officer should not take up something unless it is agreed along with all relevant stakeholders, yet an officer who does not accept one of three reasonable offers of suitable positions runs the risk of forfeiting important benefits. The Policy later refers to the obligation of the injured officer to accept any reasonable offers made by the employee which may include transfer to another location. It is difficult in these circumstances to work out the ambit of the mutuality of the obligations, nevertheless the concept of mutuality points in the direction of considering all the circumstances of an officer's placement.

32	In relation to the Transfer Policy, Haylen J noted that:

[P]ersonal preferences in relation to transfers are to be taken into account but the Policy warns that those preferences may not always be achievable and that the Police Force will give priority to the interests of the New South Wales community. There is a reminder that officers have undertaken to serve anywhere in the State. Nevertheless, the Policy and Inspector Salt's evidence confirms that the personal preference of officers is taken into account in relation to transfers. The evidence demonstrates that transfers are routinely granted to meet personal interests as well as the interests of the Police Force and that generally there are no forced transfers. There is nothing in the award to suggest that this flexibility is to be denied to a PRD officer seeking alternative duties.

33	Haylen J then proceeded to make the following relevant findings:

(a) the respondent had fully participated in the rehabilitation and back-to-work programmes that were established for her benefit in an attempt to return her to full duties (at [111]). His Honour stated:

This was, therefore, not a case of Ms Bennett avoiding full duties nor was it a case of her acting inappropriately to unfairly secure a payout under the award. The Court accepts that Ms Bennett genuinely wished to remain in the Police Force but she appears to have become frustrated by the inability of the Local Area Command to find her appropriate duties and that undoubtedly led her to continue to assert her capacity to perform full duties even if suffering pain, needing to rest and undertaking continuing treatment such as physiotherapy.

(b) the respondent identified two suitable police positions for redeployment in the Dubbo area they being Assistant Rostering Officer (filled by another person) and Educational Development Officer which was not being performed by anyone but this role existed at other Local Area Commands (at [112]);

(c) the respondent's evidence was that she constantly searched the bulletin board but had been unsuccessful in finding a position in Orana LAC (at [112]);

(d) Inspector Salt said that he had received lengthy submissions about the respondent's inability to leave the Orana LAC but nevertheless regarded her as having "fully co-operated" with the redeployment unit. Except for the issue of the rejection of positions outside the Orana LAC, Ms Bennett met her obligations in relation to fully participating in rehabilitation plans and in nominating positions within the region in which she was prepared to work (at [112]);

(e) in the context of the respondent's obligation to identify suitable work she expected to continue in desk duties until something more suitable arose within the region (at [113]);

(f) in late September 2006 the Medical Discharge Review Panel deferred consideration of medically discharging Ms Bennett and recommended that she be offered the restricted duties role at Dubbo that she had been performing until that date. Apparently, Commander Smith did not accept that approach. There was nothing preventing the respondent continuing with her front desk role (at [113]);

(g) the position of Intelligence Officer in the Orana LAC was a position that met the definition and requirements of cl 9.2 of the Award in that it was a 'reasonable offer of a suitable police position' (at [114]-[115]);

(h) the Award does require an 'offer' to be made of a suitable position and merely drawing attention to vacancies would be insufficient to comply with the provisions of cl 9.2 of the Award. There could only be a relevant rejection of the offer by an officer if the position was in fact offered. In the present case nothing of significance turns on the fact that there was no formal offer of these outside positions because Ms Bennett's approach at all times was that she would reject any such offer: her own actions prevented any 'offer' being made. Broadly speaking, by her conduct, Ms Bennett, in substance, rejected several (and more than three) positions available outside the Orana LAC (at [115]);

(i) having regard to the totality of the Award provisions and the PRD Policy, Haylen J was of the view that, in the respondent's circumstances, an offer of a position outside Orana LAC would not meet the requirement of 'a reasonable offer of a suitable police position'. An assessment of what would amount to 'a reasonable offer of a suitable police position' cannot totally ignore the personal circumstances of the police officer. The Award looks beyond the officer's skills, qualifications, aptitude and medical restrictions and although they must all be taken into account, in accordance with the Policy, also each case needs to be considered 'on its individual merits' and that includes issues personal to the officer. In Ms Bennett's case this was no mere preference to stay in Orana LAC but in both a personal and financial sense, she was tied to staying in Dubbo. Having regard to the financial commitment to the business and the respondent's personal involvement of up to 27 hours per week working in that business, in her particular circumstances it was not reasonable to offer a position outside the area (at [116]);

(j) the construction of the Award requires consideration to be given to the personal circumstances of the officer as well as their capacity to perform the duties (at [117]). In this respect, his Honour stated:

the award is, broadly speaking, designed to compensate an officer for the loss of a career, by inter alia, providing for the payment of a lump sum where suitable work is not reasonably available. It may be said that the award is tailored to the rehabilitation of the individual officer with regard to his/her individual needs, deficiencies and personality. Being an award designed to provide such a benefit, it is appropriate to adopt the principles of beneficial construction in order to attain that objective.

the mutual obligations under the award make it clear that both parties have a role to play in giving effect to the award provisions and that it is not simply a matter of the Commissioner using his power under the Act and Regulations to transfer an officer to another location where they can perform permanently restricted duties. The provisions of the award amount to a recognition by the Commissioner that the rehabilitation and placement of officers who are Hurt on Duty requires special treatment necessitating amelioration of his overall powers of placing a police officer anywhere in the State and allocating any such duties as is deemed appropriate to that officer.

the words "suitable" and "reasonable" are not words of art and are to be given their usual meaning. The word "suitable" extends to that which is agreeable or convenient to a person's inclination and deals with matters that are in agreement or accord, fitted for or appropriate to a person's character or condition and needs. The word is capable of encompassing both objective and subjective considerations and it is the context that will decide what meaning will be applied. The word "reasonable" involves the concept of not being excessive but being agreeable to reason or sound judgement, not being immoderate but being synonymous with what is rational, honest, equitable, fair and tolerable. ... Having regard to the context in which the award operates, it is clearly relevant to what is "reasonable" to take into consideration the personal circumstances of the officer. ... As the Policy contemplates, each case must be considered on its individual merits and the officer will have to demonstrate some personal circumstance of significance in order to be able to reject a position outside their local area and to have such an offer regarded as not reasonable. The individual merits, however, must include the personal circumstances of the officer.

although the Commissioner has power under the Act and the Regulations to direct employees where they are to perform their duties as well as to direct them as to what duties to perform, the evidence before the Court is that power is rarely used except for disciplinary purposes. The vast majority of transfers are not directed but result from applications such as that made by Ms Bennett for reasons stated, to be allowed to perform duties in the Orana LAC. That is a significant development and is part of the industrial reality and the industrial context in which the award was made. There is no indication in the award that this flexibility is to become unavailable to PRD officers, or is to be severely restricted (at [117]);

(k) of particular significance are the workers compensation cases that deal with the related matter of rehabilitation and also, what is suitable employment for the purposes of making calculations of what is properly payable by way of compensation. The judgment of Zelling AJ in Workers Rehabilitation & Compensation Corporation v James is a particularly strong statement of the need to take into account the personal circumstances of employees and how simple humanity in a modern age requires that injured employees not be treated as mere chattels belonging to the employer. The award under consideration in this case arises in the context of legislative obligations imposed upon the Commissioner in relation to injured officers: that is a clear reference to workers compensation and rehabilitation obligations and it is not fanciful to conclude that the parties had in mind the operation of those provisions and what was 'suitable' duties when they came to make this Award and chose not to include a definition or a different definition of the words 'suitable employment'. There appears to be some consistency in the legislative schemes that look to 'suitable' employment and they have been picked up in some award provisions and all appear to contemplate consideration of the personal circumstances of the employees. Overall, these cases give support to the view adopted by the Court in construing the award provisions (at [118]);

(l) in light of Inspector Salt's evidence there is little doubt that, at the time Ms Bennett was under the management of the Unit, Inspector Salt had formed the view that Commander Smith was not complying with the requirements of the PRD policy or the Award. The evidence in this case demonstrates not only a lack of commitment to the Policy but a failure to comply with the requirements of the Award in finding a suitable position for a PRD officer by the Orana LAC. The conclusion is open that the Orana LAC did not comply with its obligations under the Award until the very limited and late offer was made regarding the position of Intelligence Officer (at [125]);

(m) the position of Intelligence Officer was just one of three positions that the Award required to be offered - all three positions had to meet the description of a reasonable offer of a suitable police position. Only the Intelligence Officer position could meet that description and so Ms Bennett was entitled to be paid the lump sum available under the Award on her medical discharge from the Police Force (at [126]).

Grounds of appeal

34	There were two grounds of appeal, broken down into numerous sub-grounds. The appellant's main complaints in respect of the first instance decision may be stated as follows:

(a) that the central/fundamental error made by his Honour, which turned upon the proper construction and application of the Award, was to totally misconstrue the Award by grafting onto it a requirement that the appellant could not require an injured police officer to leave his/her current placement without his/her consent, provided only that such consent was not to be unreasonably withheld;

(b) his Honour erroneously interpreted the word 'suitable' in the context of the expression 'suitable Police position' in the Award, to 'extend to that which is agreeable or convenient to a persons' inclination and deals with matters that are in agreement or accord, fitted for, or appropriate to a person's character or condition and needs';

(c) his Honour erroneously interpreted the word 'reasonable' in the expression 'reasonable offer' to 'involve the concept of being excessive, that being agreeable to reason or sound judgment, being synonymous with what is rational, honest, equitable, fair and tolerable' such that, that reasonableness was to be determined by reference to the relevant circumstances of the case and that it is clearly relevant to what is 'reasonable' to take into consideration the personal circumstances of the officer;

(d) his Honour elevated asserted 'personal circumstances of significance' to being the 'paramount' consideration on the basis of his Honour's erroneous view that each individual officer had to consent to placements in suitable positions reasonably offered to them such that the only issue was whether it could be 'fairly' said that the officer had 'unreasonably refused' to proffer that consent;

(e) his Honour, whilst entitled to consider cases involving similar expressions, especially used in the context of worker's compensation and redundancy situations, ultimately erred in too readily adapting and relying on the views expressed by judges in those other cases for the purpose of this case without paying any or any proper regard to the unique statutory/regulatory/Award context;

(f) his Honour erred in placing significant weight on the South Australian Full Court of Supreme Court decision in Workers Rehabilitation & Compensation Corporation v James and in placing weight on McDonald v North Coast Area Health Service ;

(g) his Honour erred in concluding that: 'The word "reasonable" refers to having a direct relation to the subject matter arising between the parties, again suggesting a focus on personal circumstances...';

(h) his Honour erred in concluding that by the use of the word 'may' (transfer an officer to another location), the Award clearly indicates that the transfer is not mandatory, but it is a possibility: the provision does not operate on the basis that an injured officer must transfer to a new location, if no other place is found;

(i) his Honour's error in respect to the need for the injured officer's consent or agreement to the transfer is also demonstrated by his Honour's conclusion that 'the acceptance of a position must be not only agreeable to the officer, but also agreeable to the LAC in which the position arises';

(j) his Honour's misconstruction of the Award is apparent from his Honour's conclusion that 'this clause [clause 9.3.1] then proceeds to state that, with the consent of the officer, the officer can be considered for redeployment in an administrative officer's position and this appears to be a reflection of a provision of the Police Act : this provision, however, having regard to the evidence and the content of the award and the PRD Policy, cannot be taken to draw a distinction between requiring consent to be redeployed as an administrative officer but being able to be directed to take up reasonable offers of suitable police position. As early indicated, all the evidence as well as the provisions of the Award and the policy operate on the basis that the officer has to consent to such a placement and there is no award provision for the Commissioner to step in and direct an officer to take up specified duties in a nominated location although that power is generally available to the Commissioner under the Act. The award appears to go to some lengths to establish a different, flexible and compassionate regime for injured officers';

(k) his Honour erred in concluding the expression 'individual merits' of a particular case reflects a 'requirement that the individual's case is to be considered on its particular merits indicating that there are matters personal to the officer that should be taken into account';

(l) his Honour erred in finding on the evidence that the respondent had identified suitable police positions for redeployment;

(m) his Honour erred in finding that the respondent was not acting inappropriately with a view to securing a payment under the Award.

35

Essentially, it was the appellant's case that it in the statutory/regulatory/Award context applicable to the circumstances of this case the personal circumstances of the police officer are to be accorded little, if any, weight save in the most exceptional circumstances. Further, that the circumstances of the respondent were not so exceptional that having been made three reasonable offers of a suitable police position, the respondent was entitled to refuse or withhold consent to those offers without jeopardising any benefits or entitlements payable under the Award as a consequence of a medical discharge.

Notice of Contention

36

The respondent's case was that Haylen J did not err in finding that the statutory/regulatory/Award context required the respondent's personal circumstances to be taken into account and that in weighing up the competing interests of the appellant and the respondent, his Honour was correct in finding in the respondent's favour. Nevertheless, the respondent filed a Notice of Contention in the following terms:

(1) His Honour should properly have found that the appellant did not identify any suitable police position.

(2) His Honour should properly have found that the position of Police Intelligence Officer was not a reasonable offer of a suitable police position.

(3) His Honour should properly have found that the appellant must offer an actual position which is capable of acceptance by the respondent in order to comply with Clause 9.2 of the Crown Employees (Police Officers Death and Disability) Award 2005.

Leave to appeal

37	Section 188(1) of the Industrial Relations Act provides that an appeal from a member of the Court may only be made with leave of the Full Bench of the Court.

38

Section 188(2) provides that leave will be granted if the Full Bench is of the opinion that the matter is of such importance that, in the public interest, leave should be granted. Section 188(3) provides that the Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal.

39

As the appellant correctly observed, leave to appeal will not, as a general rule, be granted unless the appellant demonstrates that the appeal proceedings 'raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application': see Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 382.

40

A Full Bench of the Industrial Court has not previously considered the question of the proper interpretation of cl 9 of the Award in respect to the issue of 'a reasonable offer of a suitable police position'. A decision at appellate level regarding the clause would provide clarification as to the meaning of what is 'a reasonable offer of a suitable police position' in cl 9.2 of the Award and as to when an officer's 'obligations' under the Award have been met. Further, the question of interpretation of cl 9 raises substantial issues of principle and law regarding entitlement to benefits under the Award and has wider implications for the jurisprudence of the Court . Finally, the respondent indicated she did not wish to put any submissions forward in opposition to the application for leave. We are satisfied it is in the public interest that leave to appeal be granted so as to consider the proper interpretation of cl 9 of the Award. We shall grant leave to appeal.

CONSIDERATION

Purpose of Award

41

The Award is an award that was made with the consent of the Commissioner of Police and an industrial organisation, the Police Association of NSW. Clause 1.2.1 of the Award declares that the intentions and commitments of the Award are to provide benefits on medical discharge in the event that an on duty or off duty injury results in the partial and permanent disability of a police officer as well as permanent and total disabilities. As Schmidt J observed in Stimson v NSW Police Service [2008] NSWIRComm 196 at [26]:

[t]he Award is directed to provide rehabilitation and retraining, as well as benefits on medical discharge, for Police Officers who suffer an injury, including those who are unable to recover sufficiently to permit them to return to any duties in the employment of the Police Force. So much is further confirmed by the Award definitions "partial and permanent disability" and "total and permanent disablement".

42	At first instance, Haylen J observed at [117]:

The award is, broadly speaking, designed to compensate an officer for the loss of a career, by inter alia, providing for the payment of a lump sum where suitable work is not reasonably available.

Construction of clause 9 of the Award

43

The Award and the relevant Policies impose rights and obligations on both the Commissioner and the police officer in respect of an officer who has suffered a partial and permanent disability. The respondent was such an officer. First, an officer 'must engage in the provisions outlined within' cl 9 (cl 9.1). Secondly, there is a 'mutual obligation on both the employer and the injured officer to identify suitable police positions for redeployment' (cl 9.2). That is, there is a reciprocal obligation to identify such positions. Haylen J found that the respondent discharged her obligation, albeit unsuccessfully (at [112]). We see no error in that respect.

44

Thirdly, cl 9.2 imposes on the officer a responsibility to accept a reasonable offer of a suitable police position, which may include transfer to another location. A failure to accept one of three reasonable offers as per the PRD Policy of a suitable police position will jeopardise any benefits or entitlements payable under the Award and may result in medical discharge. This is the provision at the centre of the controversy.

45

Fourthly, clause 9.3.1 provides that if an injured officer (being Hurt on Duty) is declared as suffering partial and permanent disability then 'opportunities for placement in a suitable police position or as a permanent restricted duties police officer will be sought'. This clause then proceeds to state that, with the consent of the officer, the officer can be considered for redeployment in an administrative officer's position.

46

Fifthly, cl 9.3.2 provides that if placement in a police position is not possible and an administrative position is not agreed to, then the employment 'may' be terminated. The clause then provides that in 'such circumstances', meaning termination and subject to eligibility, the injured officer shall be paid a lump sum.

47

Sixthly, clause 9.4.1 provides that, in relation to an officer who receives an injury off duty, where it is not possible to return to pre-injury employment, the officer will be declared as suffering a partial and permanent disability and 'opportunities for placement in a suitable police position or as a permanent restricted duties police officer will be sought'.

48	Seventhly, cl 9.4.2 provides that if placement in a police position is not possible and there is no consent to take up administrative duties, the employment of the officer 'may be terminated' and if terminated, shall be paid a lump sum payment as calculated.

49	Eighthly, cl 9.5 provides that the objective of the Rehabilitation/Retraining programme creates mutual obligations, including obligations for every officer who suffers a permanent partial disability 'to be placed in a suitable police position wherever reasonably practical'.

50	Ninthly, under cl 9.6 an injured officer can dispute a police opinion that no suitable position is available.

51

It is apparent from cl 9 that the priority is to provide rehabilitation and retraining to a permanent partially disabled officer and to find a suitable position for the officer rather than have them leave the Police Force. But if a suitable position cannot be found then a medical discharge may follow and the officer may be entitled to certain lump sum benefits in recognition of the fact that the officer has lost the opportunity of pursuing a career in the Police Force.

52

The clause also imposes obligations on the employer and the injured officer consistent with the priority of finding a suitable position for the officer. The intention of cl 9.2 is to provide the officer with three reasonable offers of a suitable police position, which may include a transfer to another location, and if those offers are refused it is then open to the employer to medically discharge the officer. It would be open to the employer in such circumstances to decline to pay any benefit or entitlements payable under the Award. It could not have been the intention that an officer could simply refuse reasonable offers of a suitable position, be medically discharged and receive a lump sum payment.

53

It does not seem to us that in the event the officer refuses the offers made that it is then open to the Commissioner to simply transfer the officer to a position he considers suitable. If the intention were that this should be an option for the Commissioner, we would have expected the Award to say so given that it would have very significant implications for the officer. That is to say, if the intention was that after three reasonable offers had been made and rejected it was then open to the Commissioner to order a transfer, one would have thought the Award would make that clear in order that an officer understood that if he or she refused a reasonable offer, they could be transferred in any event. Instead, the Award merely refers to the option of a medical discharge. It is also of some significance that despite having the view that three reasonable offers had been made to the respondent, the Commissioner did not exercise the option, which he apparently considered was available to him, to unilaterally transfer the respondent.

54	Further, we note in the PRD Policy there is no reference to the Commissioner having the power to order a mandatory transfer of a restricted duties officer. Under the heading 'Salaries and Allowances', the Policy does say that:

If no suitable duties are available at the current place of attachment, consideration will be given to the officer's transfer to another location at the same rank.

55

That provision, however, has to be construed in the light of the Award provision in cl 9.2, which requires three reasonable offers of a suitable police position, such offers may include a transfer to another location. In that light, what the Policy indicates is that before considering the making of a reasonable offer of a transfer to another location, consideration needs to be given to an offer of alternate duties at the officer's existing rank and existing location. That part of the Policy does not provide for a unilateral transfer.

56

The Policy does state that the Restricted Duties Coordination Unit shall: (i) make all reasonable efforts to place the officer in a suitable position either at their own Command or other location; (ii) if this is not possible refer the officer if he/she wishes to the Redeployment Officer, Workforce and Careers to seek employment as an administrative officer; but (iii) if the first two options fail, refer the officer to his/her Commander for medical discharge consideration. It is significant that it is not mentioned as an option that the Commander may unilaterally transfer the officer to a suitable position.

57

We also note that the Award does not refer to the Transfer & Tenure Policy. Nor does that Policy deal, in any way, with restricted duties officers. Nowhere does that Policy refer to any characteristic or issue that one would associate with a restricted duties officer. That Policy, in our opinion, concerns only operational police officers. The Policy refers to two types of mandatory transfer: management initiated and performance. Neither is applicable to restricted duties officers. A management initiated transfer is where a Commander wishes to move an officer to meet operational needs or to better deploy experience. A performance based transfer may occur as a result of concern about conduct or work performance.

58	The effect of the Award, in particular, cl 9.2, is that:

(i) the injured officer has a responsibility, if he or she is to avoid a medical discharge and not place in jeopardy any benefits or entitlements under the Award, to accept a reasonable offer of a suitable police position, which may include transfer to another location;

(ii) an offer will not be unreasonable merely because it involves transfer to another location;

(iii) the employer is required to make three reasonable offers as per the PRD Policy of a suitable police position;

(iv) the injured officer has a responsibility to accept one of the offers referred to in (iii) above otherwise the consequences referred to in (i) above apply;

(v) it is not an option open to the Commissioner to unilaterally transfer the injured officer in the event the officer refuses all three reasonable offers;

(vi) in the event the Commissioner fails to make three reasonable offers of a suitable police position and medically discharges the officer, provided the officer suffers a partial and permanent disability, the officer will have an entitlement to the benefits payable under the Award.

Whether officer's consent is required to transfer

59

The appellant submitted Haylen J totally misconstrued the Award by grafting onto it a requirement that the appellant could not require an injured police officer to leave his/her current placement without his/her consent, provided only that such consent was not to be unreasonably withheld. At [108] his Honour stated:

Under both the Policy [the PRD Policy] and in accordance with Inspector Salt's evidence, the acceptance of a position must be not only agreeable to the officer but also agreeable to the LAC in which the position arises.

...

As earlier indicated, all the evidence as well as the provisions of the award and the policy operate on the basis that the officer has to consent to such a placement and there is no award provision for the Commissioner to step in and direct an officer to take up specified duties in a nominated location although that power is generally available to the Commissioner under the Act. The award appears to go to some lengths to establish a different, flexible and compassionate regime for injured officers.

60

In our view, Haylen J was correct. No other conclusion is open. Clause 9.2 provides for three reasonable offers of a suitable police position to be made by the employer. It is a matter for the injured officer to accept or reject those offers. Whilst cl 9.2 provides that it is the injured officer's responsibility to accept a reasonable offer of a suitable police position made by the employer, which may include a transfer to another location, the provision goes on to provide that in the event there is failure to accept one of three reasonable offers, it will jeopardise any benefits or entitlements payable under the Award and may result in medical discharge. Nowhere does the clause indicate, expressly or by necessary implication, that the officer must accept one of the offers. On the contrary, the implication is that if the officer does not accept an offer he or she faces the prospect of a medical discharge and the loss of benefits or entitlements under the Award.

61

If the appellant were correct in what he appears to submit, namely, there is an absolute obligation on an injured officer to accept a reasonable offer of a suitable police position, even if it involves a transfer to another location, the provisions in cl 9.2 regarding medical discharge and placing in jeopardy any benefits under the Award, would be pointless.

62

The appellant referred to cl 9.3.1, which requires a police officer's consent to be transferred to an administrative officer position. Thus, it was submitted, the Award drew a distinction between requiring consent to be redeployed as an administrative officer under cl 9.3.1 and being able to be directed to take up reasonable offers of suitable police positions under cl 9.2. We do not consider the distinction exists. That consent of the officer is required to be transferred to an administrative position is merely a reflection of the requirements of the Police Act : s 69(5). The Award was not drawing the distinction contended for by the appellant.

Act versus Award

63

The appellant referred to s 8 of the Police Act, which gives the Commissioner (subject to the direction of the Minister), the control and management of the Police Force and that he may issue instructions to members of the Police Force with respect to the management and control of the NSW Police Force (s 8(4)). Reference was also made to s 69(1) and 69(2) whereby the Commissioner has power to order an officer to transfer regardless of whether the officer consents. Further, under the Police Regulation 2000 (now Police Regulation 2008) a police officer is required to serve wherever the officer is duly directed (reg 9(2)).

64

It seems to have been submitted by the appellant that the Police Act has primacy. That is to say, the Act takes precedence over the Award, so that the Commissioner has the power to transfer a police officer from one position to another position, if the Commissioner 'considers it to be in the interests of the NSW Police Force to do so' (see s 69(1)) and such transfer can be ordered without the consent of the police officer, regardless of the terms of the Award or any Policy issued by the Commissioner. However, if that were correct then the requirement in cl 9.2 of the Award that imposes an obligation on the Commissioner to make three reasonable offers of a suitable police position is otiose. It would also render the PRD Policy largely irrelevant.

65

Section 87(1) of the Police Act provides that the Commissioner may enter into an agreement with any association or organisation representing a group or class of non-executive officers with respect to industrial matters. The Commissioner exercised that power in entering into an agreement with the Police Association to have the Award made. Clearly, any agreement cannot be inconsistent with the Police Act. However, we note that the Commissioner may only transfer an officer if he considers it to be in the interests of the NSW Police Force to do so (s 69(1)). In consenting to the Award it may be taken that the Commissioner considered that it was not in the interests of the Police Force to exercise an unfettered right to transfer injured officers, but rather the appropriate course was to agree to a regime, constituted by the Award, that dealt comprehensively with: (i) benefits on medical discharge in the event that an on duty or off duty injury resulted in the death or total and permanent disablement or partial and permanent disability of a police officer; and (ii) rehabilitation and retraining in the event that an on duty or off duty injury, resulted in a police officer suffering partial and permanent disability. Hence there is no inconsistency between the Police Act and the Award.

66

Nor is there any inconsistency between the Police Act and the PRD Policy. Section 8(4) provides that the Commissioner may issue (and from time to time amend or revoke) instructions to members of the NSW Police Force with respect to the management and control of the Police Force. A manifestation of such an instruction is the PRD Policy.

67

The Award should be regarded as supplementing the Commissioner's powers under the Police Act. This is illustrated by considering s 72A, which enables the Commissioner to retire a non-executive police officer who is found on medical grounds to be permanently unfit to discharge or incapable of discharging the duties of the officer's position. Prima facie , the Police Act makes no provision for compensation. However, s 72A has to be read in conjunction with the Award.

Meaning of 'suitable' and 'reasonable'

68	The key question in determining whether Haylen J erred in concluding the respondent was entitled to a lump sum benefit under the Award is whether his Honour was correct in how he construed the terms 'suitable' and 'reasonable' as those terms are used in cl 9.2 of the Award.

69

In seeking to construe cl 9.2, Haylen J, appropriately, considered the natural and ordinary meaning of 'suitable' and 'reasonable' according to the dictionary definitions of these words and for further assistance had regard to workers' compensation legislation and cases decided under that legislation where 'suitable' and 'reasonable' were considered. That exercise led his Honour to conclude that in considering whether reasonable offers of a suitable police position had been made the personal circumstances of the officer were to be taken into account.

70

The Macquarie Dictionary definition and the Compact Oxford English Dictionary deal with the words 'suit' and 'suitable' as including references to being 'agreeable', 'acceptable', 'in accord', 'convenient'. 'Suitable' is defined to mean 'to be fitted or adapted for', 'to conform to'. The definition of 'reasonable' includes 'a reasonable choice', 'not excessive', 'moderate', 'fair', 'proper', 'just', 'suitable under the circumstances'.

71

In relation to workers' compensation legislation and the cases relied upon by his Honour, they deal with a similar concept to which the Award is directed: persons injured at work and the benefits to be provided to injured workers. It was entirely appropriate for his Honour to have regard to the cases that considered the words 'reasonable' and 'suitable'.

72

Whilst the appellant conceded his Honour was entitled to consider cases involving similar expressions, especially used in the context of workers' compensation and redundancy situations, the appellant contended that his Honour erred in too readily adapting and relying on the views expressed by the courts in those other cases for the purpose of this case and this 'unique statutory/regulatory/Award context'. It was submitted that given the context, his Honour should have found the expression 'suitable position' meant a position that, when looked at objectively, was one that the respondent could safely and productively perform when due regard was had to the nature and extent of her medical restrictions, qualifications, aptitude etc, without regard to personal preferences or whether or not the respondent agreed the position was suitable.

73

It was further submitted Haylen J erroneously interpreted the word 'reasonable' in the expression 'reasonable offer' to 'involve the concept of not being excessive, that being agreeable to reason or sound judgment, being synonymous with what is rational, honest, equitable, fair and tolerable' such that reasonableness was to be determined by reference to the relevant circumstances of the case. It was submitted for the appellant that in the relevant statutory/regulatory context, the 'personal circumstances of the officer' were, as a matter of generality, to be accorded little, if any, weight save in the most exceptional circumstances and that such circumstances did not exist in this case.

74	In considering the composite phrase 'reasonable offer of a suitable position', the offer has to be reasonable and the position has to be suitable.

75

Dealing first with the term 'reasonable' as it qualifies the word 'offer' in cl 9.2, the proper approach to be taken to construing the term is to do so having regard to all of the relevant circumstances of the case considered as a whole: R v Archdall and Roskruge; ex parte Carrigan [1928] HCA 18; (1928) 41 CLR 128 at 136 per Knox CJ, Issacs, Gavan Duffy and Powers JJ; Opera House Investment Pty Ltd v Devon Buildings Pty Ltd [1936] HCA 14; (1936) 55 CLR 110 at 116 per Latham CJ. In Archdall it was stated:

Reasonableness is relative, and must be proportioned to the circumstances of the case considered as a whole. The position cannot in broad principle be better stated than it was by Romer L.J. in Glamorgan Coal Co v South Wales Miners' Federation [1903] 2 KB 545 at 574 in relation to a contract broken, in these words:-"I respectfully agree with what Bowen L.J. said in the Mogul Case 2(1889) 23 QB.D. 598, at p. 618., when considering the difficulty that might arise whether there was sufficient justification or not: The good sense of the tribunal which had to decide would have to analyse the circumstances and to discover on which side of the line each case fell...."

76

It is important to note the caveat that reasonableness 'must be proportioned to the circumstances of the case...'. In Archdall, in considering whether a boycott by seamen in relation to the provision of lighthouse services was 'without reasonable cause or excuse', the majority weighed up the personal interests of the seamen against the public interests of Government, that is, of the general community, and came down overwhelmingly in favour of the public interest.

77

The appellant came to accept that the personal circumstances of the officer could be a consideration in determining whether an offer made to the officer of a suitable position was reasonable. However, the appellant contended that those personal circumstances would be accorded little, if any, weight save in the most exceptional circumstances.

78	There is no doubt that personal circumstances must be taken into account. When one considers the relevant circumstances of the case as a whole there are factors that clearly support this proposition. Those factors include:

(a) the plain and ordinary meaning of the word 'reasonable' (fair, proper, just, moderate, suitable under the circumstances);

(b) that the term 'reasonable offer' is used in an industrial instrument that is required to set fair and reasonable conditions of employment for employees (s 10 of the Industrial Relations Act ), and which is made under a statute an object of which is to provide a framework for the conduct of industrial relations that is fair and just (s 3(a) of the Industrial Relations Act );

(c) that the word 'reasonable' in cl 9.2 may be construed as encompassing the personal circumstances of the officer is consistent with the modern line of authority referred to by Haylen J in connection with workers' compensation cases that 'simple humanity in a modern age requires that injured employees not be treated as mere chattels belonging to the employer'. Where the Commissioner has chosen in accordance with the Police Act to agree to a comprehensive regime to deal with injured officers as a substitute for exercising his otherwise unilateral powers to transfer officers it is apparent that the Commissioner has embraced the modern approach to the treatment of injured employees;

(d) the Commissioner chose to consent to the Award and promulgate the PRD Policy in order to deal comprehensively with: (i) benefits on medical discharge in the event that an on duty or off duty injury resulted in the death or total and permanent disablement or partial and permanent disability of a police officer; and (ii) rehabilitation and retraining in the event that an on duty or off duty injury, resulted in a police officer suffering partial and permanent disability. In establishing this regime, the Commissioner chose, as he was permitted to under the Police Act , to voluntarily place limitations on the exercise of his statutory powers to transfer an officer regardless of whether the officer consented to the transfer;

(e) in the introduction to the PRD Policy it is stated that the Executive team has committed the organisation to provide suitable alternate duties for police officers who are no longer able to perform operational duties 'wherever this is reasonably practical'. The qualification of the word 'practical' by the word 'reasonably' means that whilst the provision of suitable alternate duties might be practical (meaning 'capable of being carried out in action, feasible'), it will only be practical under the PRD Policy if it is reasonable, suggesting, as we have indicated, the necessity of having regard to more than the interests of the employer;

(f) the PRD Policy states that each case needed to be considered 'on its individual merits' with an officer's skills, qualifications, aptitude and medical restrictions all to be taken into account when consideration was given to their suitability for placement on restricted duties. This part of the Policy commences with a requirement that the individual's case is to be considered on its particular merits. Other matters, such as the officer's skills, qualifications, and medical restrictions, are to be taken into account as well as the requirements of the Command. This phrasing suggests a wider consideration than only the skills of the officer;

(g) in the conclusion to the PRD Policy there is a reference to 'all reasonable steps' being taken to place officers. The use of those words tends to confirm the view that a wider assessment is to be made as to the suitability and reasonableness of the placement than solely the interests of the employer. The acknowledgement that implementation requires 'goodwill' by all affected parties also has some suggestion about it that a broad based approach and not a narrow approach is being considered; and

(h) the Transfer & Tenure Policy has no application to a restricted duties officer. However, under that Policy personal preferences in relation to transfers are to be taken into account, although it warns that those preferences may not always be achievable and that the Police Force will give priority to the interests of the New South Wales community. The fact that personal preferences are taken into account for operational officers suggests that restricted duties officers should not be at a disadvantage and the word 'reasonable' in cl 9.2 may be construed to encompass an officer's personal preferences. If such personal preferences are not achievable and the officer rejects three reasonable offers of a suitable police position, the option is not a mandatory transfer, but rather it is open to the employer to effect a medical discharge and the sanction the officer faces is loss of entitlements.

79

What must also be taken into account are the interests of the employer and the public interest. The Award provides for officers to be medically discharged if they suffer an on duty injury and are unable to be accommodated in a suitable position having regard to their disability. Upon discharge, the officer is entitled to a lump sum benefit. However, it is quite apparent that the emphasis in the Award is on retaining the officer if at all possible and understandably so. A great deal of time and resources goes into training police officers, most of whom regard their chosen vocation as a lifetime career. There is no public interest in facilitating or encouraging the exit of police officers from their employment if their aptitude, skills and experience can be used in continuing to serve the community, notwithstanding their disability and even though some retraining may be necessary.

80

Clause 9.2 of the Award itself contains indicia that support the proposition that priority is to be given to retention of injured officers. There is the obligation imposed on the officer (as well as the employer) to identify suitable police positions for redeployment. The fact also the employer is required to make three offers of a suitable position should be seen as imposing an obligation on the employer to accommodate the officer's personal circumstances to a significant extent in order to meet the objective of retaining the officer. Further the injured officer has a responsibility, that is, a positive duty, to accept a reasonable offer of a suitable police position made by the employer, which may include transfer to another location.

81

Clause 9.3 provides that an officer who suffers an on duty injury shall receive rehabilitation/retraining consistent with agreed policies, leading to a return to pre-injury employment wherever possible . Clause 9.3.2 goes to the extent of allowing the employer to redeploy an officer by agreement to an administrative position if placement in a police position is not possible.

82	The PRD Policy establishes a Restricted Duties Co-ordination Unit to manage and coordinate the placement of restricted duties officers. The Policy provides:

NSW Police is committed to ensuring that all reasonable steps are taken to facilitate the placement of permanently injured police officers into suitable duties, wherever practical. Such action not only maximises the potential of individual members of staff, but also ensures that the expertise of such officers is not lost to the organisation.

83

Having regard to the foregoing matters, it is our view that in determining whether an offer is reasonable an officer's personal circumstances may be taken into account. However, it is not a balancing exercise where an officer's personal circumstances are to be given equal weight to the interests of the employer and the public interest. We consider that it will only be in 'exceptional circumstances' that an officer's personal circumstances will prevail.

84	The appellant submitted that factors such as:

(i) owning a house (or even leasing a house),

(ii) spouse or partner running a business or enjoying gainful employment in the city or town,

(iii) children in school,

(iv) need mother to help during/after birth of my child/children,

(v) parents (especially if elderly and unwell) live nearby and want/need to visit them on a regular basis,

(vi) approved secondary employment in the business of my spouse/partner,

could not convert what would otherwise be a reasonable offer of a suitable position into an unreasonable offer of a suitable position (or into a reasonable offer of an unsuitable position). This was because, if such personal preferences were to be viewed as relevant (at all), let alone regarded as 'personal circumstances of significance', then every injured officer would be well placed to resist a transfer to another location to take up an offer of a suitable position and would hence accrue an 'entitlement' to substantial benefits on medical discharge on the basis that the officers had not, in reality, received 'reasonable offers' of 'suitable police positions' or that such personal circumstances rendered it not 'reasonable practical' for such offers to be taken up.

85

There is merit in this submission. In our opinion, the factors identified above by the appellant, taken individually, would be unlikely to constitute, of themselves, a basis for concluding an offer of a suitable police position at another location was not reasonable. The public interest would not be served by facilitating an exit from the Police Force and allowing access to lump sum payments on the basis of such personal circumstances.

86

The purposes of the Award include rehabilitating or retraining the officer in order that he or she is able to pursue a productive career in the Police Force and the Police Force is able to keep the benefit of a trained officer, albeit not in an operational role. Clearly, the emphasis in the Award and the PRD Policy is on keeping the officer. What must be particularly guarded against is an officer refusing an offer of a suitable police position involving a transfer merely as a contrivance to obtain a medical discharge for the purpose of gaining access to the consequential benefits provided for under the Award.

87

Whether an offer of a suitable police position involving a transfer to another location is reasonable will depend on all of the circumstances of the case. However, given the context in which the Award operates, the emphasis on rehabilitating and retraining an officer so that he or she may be retained in the Police Force and the public interest in discouraging contrived circumstances in order to access lump sum payments, in determining whether an offer is reasonable, the personal circumstances of an officer will be a secondary consideration.

88

If it be correct that the word 'reasonable' may involve consideration of an officer's personal circumstances in determining what is a reasonable offer, it does not seem to us that such a consideration has to be repeated in respect of the position. We think the appellant is correct in his submission that the expression 'suitable position' means a position that, when looked at objectively, is one that an officer could safely and productively perform when due regard is had to the nature and extent of his or her medical restrictions, qualifications, skills, experience and aptitude without regard to personal preferences. We agree with Haylen J, however, that so long as training and experience can, over time, equip an officer to perform the duties of the position it may still be regarded as suitable.

89	It may be seen from our analysis of the approach to be taken to the phrase 'reasonable offer of a suitable police position' that we disagree with the approach taken by Haylen J to the interpretation of this phrase. To that extent we consider his Honour erred.

Whether the offers of suitable police positions were reasonable

90

Haylen J found that the position of Intelligence Officer in the Orana LAC was a position that met the definition and requirements of cl 9.2 of the Award. However, his Honour was of the view that, in Ms Bennett's circumstances, an offer of a position outside Orana LAC would not meet the requirement of 'a reasonable offer of a suitable police position': at [116]. Haylen J stated:

The award looks beyond the officer's skills, qualifications, aptitude and medical restrictions and although they must all be taken into account, in accordance with the Policy, also each case needs to be considered "on its individual merits" and that includes issues personal to the officer. In Ms Bennett's case this was no mere preference to stay in Orana LAC but in both a personal and financial sense, she was tied to staying in Dubbo. She had sought a transfer to the area because her husband had purchased a franchise business in which she was to work and it is likely that decision was influenced by being able to work in an area where close contact could be maintained with the aging parents of Ms Bennett and her partner. That transfer had been sought and was granted and then Ms Bennett had applied for permission to undertake secondary employment in that business, setting out the duties she would perform. The business appears to have been of some substance, employing up to 20 people and although there was some challenge as to whether or not it was a successful business, Commander Smith certainly described it as a "lucrative business". Having regard to the financial commitment to the business and Ms Bennett's personal involvement of up to 27 hours per week working in that business, in her particular circumstances it was not reasonable to offer a position outside the area. These were, properly understood, extensive ties to the area and were not capable of or likely to be quickly undone. The unreasonableness of treating the offers outside Orana as being suitable is underlined by Commander Smith's view that Ms Bennett already had suitable alternative employment, namely her lucrative franchise business and that view seems to have influenced him, at least in part, in not being prepared to identify any other PRD position for her. Commander Smith also wrongly concluded that, apart from her husband, Ms Bennett "had no other ties in the area".

91

It is true that Haylen J did not take the approach we consider is the correct one in that his Honour took the view that each case needs to be considered 'on its individual merits' and that included issues personal to the officer. We, on the other hand, have found that whilst an officer's personal circumstances may be taken into account in determining what is a reasonable offer, those circumstances are secondary considerations and would only outweigh the public interest in exceptional cases.

92	Nevertheless, Haylen J did not merely confine his consideration of Ms Bennett's personal circumstances to the fact she operated a chicken shop with her partner and had an elderly relative in the area. These matters alone would not constitute an exceptional case.

93	His Honour considered all of the circumstances, including the following:

(a) the respondent fully participated in the rehabilitation and back-to-work programmes that were established for her benefit in an attempt to return her to full duties;

(b) Ms Bennett was not seeking to exaggerate her disabilities in order to achieve a payment under the Award but quite to the contrary, she was asserting her capacity to return to full-time duties notwithstanding the fact that medical opinion was that she had a permanent partial disability;

(c) Ms Bennett genuinely wished to remain in the Police Force but she appears to have become frustrated by the inability of the Local Area Command to find her appropriate duties and that undoubtedly led her to continue to assert her capacity to perform full duties even if suffering pain, needing to rest and undertaking continuing treatment such as physiotherapy;

(d) Ms Bennett did identify two positions that she regarded as suitable;

(e) Ms Bennett's evidence was that she constantly searched the bulletin board but had been unsuccessful in finding a position in Orana LAC;

(f) on several occasions the respondent outlined why it was not open to her to transfer outside the region, citing her financial commitment to the franchise business with her husband as well as the loans and commercial obligations flowing from that business and also family commitments;

(g) Inspector Salt said that he had received lengthy submissions about Ms Bennett's inability to leave the Orana LAC but nevertheless regarded her as having 'fully co-operated' with the redeployment unit;

(h) except for the issue of the rejection of positions outside the Orana LAC, Ms Bennett met her obligations in relation to fully participating in rehabilitation plans and in nominating positions within the region in which she was prepared to work;

(i) in Ms Bennett's case it was no mere preference to stay in Orana LAC but in both a personal and financial sense, she was tied to staying in Dubbo. She had sought a transfer to the area because her husband had purchased a franchise business in which she was to work and it is likely that decision was influenced by being able to work in an area where close contact could be maintained with the aging parents of Ms Bennett and her partner. That transfer had been sought and was granted and then Ms Bennett had applied for permission to undertake secondary employment in that business, setting out the duties she would perform. The business appears to have been of some substance, employing up to 20 people and although there was some challenge as to whether or not it was a successful business, Commander Smith certainly described it as a 'lucrative business';

(j) having regard to the financial commitment to the business and Ms Bennett's personal involvement of up to 27 hours per week working in that business, in her particular circumstances it was not reasonable to offer a position outside the area;

(k) the evidence shows that Commander Smith was resolute in declining to have another PRD position in the Orana LAC although there was only one such position, well below the general figure of a maximum of five referred to in the PRD Policy. Correspondence passing between Commander Smith and Inspector Salt indicates that certainly there would be no addition to PRD duties to accommodate Ms Bennett. The appellant was well aware that it was Ms Bennett's case that it was reasonable for her, having regard to her personal circumstances, to be allocated work within the Orana LAC and that it was not reasonable or suitable for her to be placed in a position outside the Orana LAC. Having regard to the nature of that case, it would seem to be not only arguable but a strong point for the appellant if it was able to demonstrate that the resources of the Orana LAC were so stretched that it was inappropriate to accommodate another PRD position. The appellant did not take that position, did not seek to establish that situation as part of its case, nor was Commander Smith called.

94

The respondent's family and business ties to Dubbo were significant although the matters considered by Haylen J, particularly at [111]-[125], were obviously much broader than just the respondent's family and business connections. The appellant sought to minimise the significance of the business ties by referring to the fact that by December 2007 the chicken shop business had been sold and by February 2008 the respondent and her husband had bought a motel business in Parkes. The sale of the chicken shop business occurred some 12 months after the respondent left the Police Force. The fact that at the relevant time the respondent claimed the business was a significant reason for wanting to stay in Orana LAC did not mean that having made that claim she was irrevocably tied to maintaining the business in Dubbo. Nor did it mean that at the relevant time the business connection was not an important consideration for the respondent in considering whether to accept a transfer out of the Dubbo area. We note that Parkes is only 120 kilometres from Dubbo.

95

Do all of these factors amount to exceptional circumstances such that it could be concluded the offers made to Ms Bennett were not reasonable? Providing an answer to that question involves very fine judgment. We think it is very much a borderline case. On balance, however, we have decided there is a proper basis for concluding the circumstances are sufficiently exceptional. It is apparent that the respondent would have preferred to remain on operational duties. Her injury was genuine and she had made every effort to overcome it. She did not seek to manufacture a situation to facilitate her exit from the Police Force in order to obtain a lump sum payment. The respondent cooperated in the effort to retain her. She had significant ties to the Dubbo area.

96

In all of the circumstances, we do not propose to interfere with his Honour's decision that the respondent was entitled to a lump sum payment in accordance with the provisions of cl 9 of the Award. We would only uphold the appeal to the extent necessary to correct the errors of law and otherwise confirm the orders made at first instance.

Notice of contention

97	In view of our findings regarding the decision by the primary judge it is unnecessary to consider the respondent's Notice of Contention.

COSTS

98

Given the mixed outcome in this appeal the parties shall have the opportunity of addressing the question of costs both at first instance and on appeal. The appellant shall provide written submissions regarding costs within seven days of this decision. The respondent shall have a further seven days to respond. Unless there is an application by either party to be heard orally on the question of costs, the question shall be determined on the papers.

ORDERS AND DIRECTIONS

99	The Full Bench of the Court makes the following orders:

(1) Leave to appeal is granted.
(2) The appeal is upheld to the extent determined in this decision.
(3) The appeal is dismissed to the extent determined in this decision.
(4) The orders at first instance are confirmed.
(5) The stay order made by the consent of the parties on 29 June 2010 is dissolved.
(6) The Full Bench directs that the appellant shall provide written submissions regarding costs within seven days of this decision. The respondent shall have a further seven days in which to respond. Unless there is an application by either party to be heard orally on the question of costs, the question shall be determined on the papers.

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