100425024

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES MARK DONALD BAILEY

CLAIMANT

 -v-

 COMMISSIONER OF POLICE, WA POLICE SERVICE

RESPONDENT

CORAM MAGISTRATE WG TARR IM

DATE  TUESDAY, 14 SEPTEMBER 2004

CLAIM NO/S M 117 OF 2003 & M 129 OF 2004

CITATION NO. 2004 WAIRC 12837

_______________________________________________________________________________

Representation

Claimant  Ms M Ridley (of Counsel) appeared for the Claimant.

Respondent  Ms L Diaz (of Counsel) appeared for the Respondent.

_______________________________________________________________________________

Reasons for Decision

1         There have been two claims filed in this action, however, the reason for that is that the first was for the period from 22 May 2003 to 25 June 2003 and the second for the period from 26 June 2003 to 19 September 2003.  Both were heard together as though consolidated and I will deal with them as one.

2         The Claimant, Mark Donald Bailey, is a police officer of the Western Australia Police Service and has the rank of a Senior Constable.  His claim is made pursuant to the provisions of the Industrial Relations Act 1979.  He claims his employer, the Respondent, has failed to comply with a provision of the Western Australia Police Service Enterprise Agreement for Police Act Employees No PSAAG 8 of 2001 (the Agreement) in that the Respondent has failed to pay him while he was absent through illness for the period from 22 May 2003 to 19 September 2003 although the actual date is 18 September 2003.

3         Clause 37 of the Agreement provides for an entitlement to leave and allowances through illness or injury and the relevant subclauses for the purposes of this claim are set out hereunder:

(1)   … (Requirement to notify)

(2)   ... an application for leave by an employee on account of incapacity shall be supported by a certificate of a medical practitioner …

(3)   The application shall be-

(a)   in a form approved by the Employer; and

(b)   submitted to the Manager, and the certificate in its support shall be-

(c)   submitted to the Manager.

(4)   Subject to subclause (2) of this clause, and the compliance of the employee with subclause (3)(a), (b) and (c) of this clause, the Employer may grant to an employee in respect of the employee’s incapacity leave of absence with pay-

(a)   for up to one hundred and sixty eight (168) days in a calendar year; and

(b)   if so recommended by the Manager and subject to any terms or conditions recommended by the Manager, for a further period.

(5)   … (Entitlement to any special allowances)

…

(10) An employee who has been absent from duty because of incapacity for longer than four (4) weeks shall, before returning to duty, submit to the Manager evidence of the employee’s medical fitness to return to duty.

(11)    (a)   The Employer may direct an employee to submit to examination, at the expense of the Employer, by one or more medical practitioners nominated in each instance by the Employer and the employee shall obey such a direction.

(b)   Where an employee has been examined under subclause 11(a) of this clause, and the examining medical practitioner expresses the opinion in writing to the Employer that the employee is unfit for duty because of illness or injury, the Employer may direct the employee, to apply for leave on that ground and the employee shall obey such a direction.

4         It does not appear to be in issue that the application required in subclause (3) is available electronically on the Police Service database and may be completed by the applicant (officer), his or her Officer in Charge or by any rehabilitation officer of the Police Service’s Health and Welfare Branch.  The subclause also provides for the medical certificate in support of the application to be submitted and it is after receipt of the medical certificate that the Officer in Charge or rehabilitation officer would complete an application.  The application is forwarded to the Manager who is defined in the Agreement for the purpose of clause 37 as meaning the Manager of the Health and Welfare Branch of the Police Service.

5         The Claimant commenced employment with the Western Australia Police Service in February 1990 and, as he has said in evidence, swore an oath of office, a term of which was that he would provide country service in Western Australia.

6         He had not served in any country posting when on 21 January 2000 he was formally advised that his obligation to do country service had fallen due and that he would be placed on the Management Initiated Transfer List.

7         Acting Assistant Commissioner Lampard gave evidence that the Police Service was having difficulties filling vacancies in Kalgoorlie and the Claimant was advised that he would be transferred to Kalgoorlie.

8         The Claimant applied to the Transfer Review Committee for a deferral of his country transfer and was granted a deferral until 1 January 2001.  In June 2001 he was advised that he was to be transferred to Kalgoorlie and he arrived in Kalgoorlie on 2 September 2001.  He remained in Kalgoorlie, except for periods of annual leave totalling 31 days, until he commenced sick leave on 15 March 2002 and has not returned to his position in Kalgoorlie since that date.

9         I do not propose to go through the evidence in detail because factually it is not generally in issue.  The Claimant remained on paid sick leave until he commenced a rehabilitation placement at the Armadale Police Station on a graded return to work program.

10     In January 2003 the Claimant’s psychiatrist Dr Morkell certified he was fit for full-time duties as did his general practitioner Dr Dobromirska.  On 25 February 2003 the Claimant was reviewed by the Police Service’s occupational health psychiatrist Dr McDonald who found him free of any symptoms of major depressive illness and fit to return to Kalgoorlie as at 17 March 2003.  Dr McDonald did make note that there were “Social issues re move to Kalgoorlie” and that the Claimant “remains in some doubt as to abilities and potential vulnerability in Kalgoorlie”.

11     Having been advised that he would be required to return to Kalgoorlie on 17 March 2003, the Claimant asked to stay at Armadale until he had seen Dr Morkell at the end of March.  It was suggested that he apply for four week’s annual leave and he did so, commencing from 22 March 2003.

12     On 23 April 2003 he sent his rehabilitation officer, Miss Julie Vlahov, a certificate from Dr Adam Nuttall stating that he was unfit for work from that day until at least 30 April 2003.

13     Dr Dobromirska provided certificates stating the Claimant will be unfit for work from 30 April 2003 until 12 May 2003 and from 12 May 2003 until 26 May 2003.  She provided another certificate on a Workcover form for the period from 28 May 2003 until 10 June 2003.  I find that those three certificates were received by the Health and Welfare Branch.

14     During March 2003 the Claimant pursued avenues to avoid returning to Kalgoorlie concluding with an interview with Acting Assistant Commissioner Lampard on 28 March 2003.  Mr Lampard gave evidence that he discussed with the Claimant his request for a compassionate transfer and after being told that issues relating to the Claimant’s wife’s illness and the legal dispute involving the building of his new home had been resolved he informed the Claimant that he did not qualify for a compassionate transfer.  In a letter dated 2 April 2003 the Claimant was instructed to report to the Kalgoorlie Police Station on 19 April 2003, the day following the last day of the Claimant’s approved annual leave.

15     On 22 April 2003 the Claimant sent an e-mail to Mr Lampard advising of his appointments with Dr Morkell on 28 March and 15 April 2003 and the doctor’s assessment of him.  The Claimant also stated that if there was no chance of him remaining in the Metropolitan Area he would resign from the Police Service.

16     Dr McDonald provided a report on his assessment of the Claimant dated 5 May 2003, which stated:

This man attended for review at the Health and Welfare Branch on 29 April 2003.

Following my assessment and reviewing correspondence received from treating medical practitioners, it is my opinion that Senior Constable Bailey is unlikely to be able to manage in a position within the Western Australia Police Service without the support of his family.

With respect to his tenure at Kalgoorlie Police Station, Senior Constable Bailey informs me that his family would not be moving with him, and as a result, I believe he will have difficulty managing with his position there on medical grounds.

If you have any questions regarding this report, please do not hesitate to contact me.

17     After considering that report the Claimant was, by letter dated 12 May 2003, instructed to report to the Kalgoorlie Police Station on 21 May 2003.  For completeness the letter to Senior Constable Bailey from Acting Commander Gronow of the North Eastern Regional Office is set out hereunder:

On the 29th April 2003 Doctor Rob McDonald, Occupational Health Physician, from the Health and Welfare Branch, assessed you and as a result of that assessment he advised that in his opinion you had capacity to work but would have difficulty managing in any position within the Western Australia Police Service without the support of your family.

Prior to being directed to resume duties at Kalgoorlie you had an extended period on sick leave followed by a further period of rehabilitation at the end of which time you were considered fit to resume your normal duties.

You were transferred to Kalgoorlie on the 2nd September 2001 and up until this date you have completed six months of duty at that location.  Your tenure at Kalgoorlie is for a period of three years of which you have a further thirty months to serve.

Notwithstanding this most recent assessment, there is an obligation of employment that you are required to serve at a country location and your current employment location is Kalgoorlie.

Subsequently I instruct you to report to Acting Senior Sergeant McAlpine the Officer In Charge of the Kalgoorlie Police Station at 0800 hours on Wednesday 21st May, 2003.

Should you not resume duty at Kalgoorlie at 0800 hours on Wednesday 21st May, 2003, your paid sick leave will cease.

18     That letter was delivered by hand to the Claimant’s address on 13 May 2003.

19     Paid sick leave did cease on 22 May 2003, on the recommendation of Mr Lampard, by a decision of the Manager of the Health and Welfare Branch, Ms Dora Volleman, who had delegated authority to make that decision.

20     Clause 37 deals with the granting of paid sick leave by providing that the employer (Commissioner of Police) may grant to an employee leave where he or she is ill or injured and where they have complied with subclause (2) by making application which shall be supported by a certificate of a medical practitioner and provided the application is in the correct form and it and the certificate are submitted to the Manager.

21     Section 56 of the Interpretation Act 1984 provides that where the word “may” is used in conferring a power, such word shall be interpreted to imply that the power so conferred may be exercised or not, at discretion and where the word “shall” is used in conferring a function, the function so conferred must be performed.

22     Of course, where a power may be exercised at discretion there is an obligation on the person exercising his or her discretion to do so in a procedurally fair way and any decision must be reasonable.  Nonetheless where the word “may” is used there is discretion.

23     Mr Lampard gave reasons for his recommendation that Senior Constable Bailey’s paid sick leave should cease and they were based on the factors mentioned in his evidence which is set out hereunder:

“ … medical information in January and February 2003 that Mr Bailey was fit for full-time police duties in Kalgoorlie.

After Mr Bailey was informed of the requirement to resume duty in Kalgoorlie on 17 March 2003, he made request to be released from his tenure at Kalgoorlie Police Station on compassionate grounds.  My discussion with Mr Bailey, during which he informed me that the reason that he did not want to return to Kalgoorlie was because his wife/family could not be relocated with him - - Mr Bailey's failure to comply with three directions to resume work in Kalgoorlie, start date 17.3, 19.4 and 21.5 of 2003, appeared to be the result of his reluctance and resistance to work in Kalgoorlie because his family would not relocate with him.

Medical information which was received in May 2003 supported the fact that Mr Bailey would have difficulty managing in Kalgoorlie because - - without the support of his family.  Information which indicated that Mr Bailey was seeking to avoid a transfer to Kalgoorlie, for example, the job application he made in January 2003 and his subsequent reluctance to attend Kalgoorlie despite medical advice that he was fit for work.

Mr Bailey was fit for operational duties.  He was able to work in Perth, and did work at Armadale Police Station until

21 March 2003.  Mr Bailey would have been able to work in Kalgoorlie if his family were in Kalgoorlie and, finally, the fact that Mr Bailey’s family would not relocate was not a matter within the control of the Commissioner of Police.  It was a matter within Mr Bailey’s personal circumstances.”

      (Transcript page 120)

24     In cross-examination, when it was put to Mr Bailey that his wife “simply didn’t want to go to Kalgoorlie” he said in answer:

“Well, again, whether my wife - - whether Katherine wanted to go to Kalgoorlie or not, it wasn’t really an issue, as I said all along.  I was quite happy, and we still are quite happy, as we’ve mentioned to Peter Brown from the union, and other people - - I am still quite happy to go and do my tenure in Kalgoorlie.  It’s got nothing to do with Katherine going to Kalgoorlie.  Again, Peter had been down to the house and possibly at a later stage she will join me in Kalgoorlie, or wherever I’m sent.  It goes without saying, if - - there is no way on God’s earth that I can just sit here and stay at Armadale for the rest of my - - rest of my days.  Sooner or later I’m going to be sent to Kalgoorlie or somewhere else; otherwise it’d be - - the Commissioner at some stage is going to say, “On your bike, mate,” you know, “This can't go on,” and - - obviously which is now.  I have not once suggested that I will not go back to Kalgoorlie or any other - - other place.”

(Transcript page 56)

25     That belief held by Senior Constable Bailey is certainly not consistent with his behaviour and actions which are more consistent with Mr Lampard’s view that Senior Constable Bailey had demonstrated a reluctance and resistance to a country posting and in particular a return to Kalgoorlie.

26     When advised in 2000 of his obligation to perform country service he gave as a reason for seeking an exemption from transfer for “the next 2-3 years” his children’s studies and the belief that “uprooting them and taking them from their home and education environment would seriously disadvantage their studies”.

27     In September 2000 the Transfer Review Committee granted a deferral until 1 January 2001.

28     Senior Constable Bailey arrived in Kalgoorlie on 2 September 2001 and went on leave on 12 November 2001 requesting a transfer on compassionate grounds on 22 November 2001.  The application for transfer was refused.  Since then he was granted paid sick leave and diagnosed by Dr Morkell in his report dated 4 July 2002 with a “condition consistent with the diagnostic criteria of a major depressive disorder – single episode with permanent anxiety symptoms”.  That report suggested that Senior Constable Bailey’s “overall prognosis will be favourable as long as appropriate medical management is instigated and a stable process of recovery occurs.  I would however, suggest that it would be extremely counter therapeutic for him to be returned back to his Kalgoorlie post and to be separated from his wife who is his main social support.  I certainly see no difficulties in the future for him to do a country stint as a Police Officer but I would suggest that if this occurred in the next 6 to 12 months, it would probably set his condition back and it would exacerbate his major depression”.

29     It is the difficulty of Senior Constable Bailey managing the separation from his wife that appears to be central to his reasons for not wanting to return to Kalgoorlie.  The evidence is clear that his wife and children would not be moving with him and that was a situation over which the Respondent had no control and no doubt a situation applying to other officers transferred to a country posting.

30     As Dr Cheng reported in his report dated 19 September 2003 that when in Kalgoorlie and separated from his wife, Senior Constable Bailey had feelings of isolation and lack of “structure” as he did not have any social or emotional supports in Kalgoorlie.  He found it difficult returning to an empty house alone.

31     In an e-mail to Julie Vlahov dated 28 February 2003 Senior Constable Bailey claimed his wife was “absolutely gutted” about him having to return to Kalgoorlie.

32     In an e-mail to Inspector Cope dated 10 March 2003 Senior Constable Bailey expressed his concern about returning to Kalgoorlie at that time as it “will add more stress on an already strained marriage”.

33     At another time Senior Constable Bailey put forward as a reason for not wanting to be in Kalgoorlie, financial hardship brought about by the need to run two households.

34     Towards the end of August 2002 Senior Constable Bailey commenced a rehabilitation placement at the Armadale Police Station and by January 2003 his general practitioner, psychiatrist and the Respondent’s occupational health physician all declared that he was fit and ready for full-time operational police duties.  It was after he was informed that he would be required to return to work at Kalgoorlie on 17 March 2003 that Senior Constable Bailey let it be known that he wanted to stay in Perth until he had consulted with his psychiatrist.  Senior Constable Bailey then took annual leave.

35     In my view Acting Assistant Commissioner Lampard, for the reasons he has given, was justified in having concerns about the bona fides of Senior Constable Bailey and the evidence supports those concerns.

36     When the discretion was provided for in clause 37 of the agreement it must have been contemplated that there would be circumstances when it would be appropriate for the Respondent to exercise that discretion and decline to grant an employee leave of absence with pay; provided of course that the discretion is exercised in a procedurally fair way and in all the circumstances is reasonable.

37     I have not particularly addressed the issue of the Claimant’s obligation under clause 37 to provide an application supported by a certificate of a medical practitioner.  The evidence before me, however, is that certificates were provided by Dr Dobromirska to cover the period from 30 April 2004 to 10 June 2004 and it was not until Dr Morkell’s report dated 9 September 2003 was there a “certificate” for the intervening period.  In fact Dr Morkell’s report was that the Claimant was “unfit for duty outside the metropolitan area from 22 May 2003 onwards”.

38     Dr Morkell had not seen the Claimant between 15 April 2003 and the consultation in September which resulted in the report.  The consultation on 15 April 2003 did not result in a report being prepared and I have difficulty accepting the Claimant’s evidence in that regard.  The obligation was clearly on him to arrange for and provide any medical certificate required in support of his application for sick leave.

39     I share the Respondent’s concerns as to how Dr Morkell could determine the Claimant’s fitness to work between 22 May 2003 and 1 September 2003 not having seen him during that period.

40     It is my view, in this case, that it was not unreasonable for the Respondent not to approve paid sick leave for the period the subject of these claims.  In fact I find that it was justifiable for the Respondent to exercise his discretion in the way that he did.

41     For those reasons the claims will be dismissed.

WG Tarr

Industrial Magistrate