Legal Services Division

Anthony Howell Assistant Secretary - Legal Services Division

■ The Legal Services Division of the Association is responsible for the dayto-day operation of the Association’s Financial Legal Services Scheme (the Scheme). The Scheme is a part of the Association’s registered rules and is one of the key benefits of membership. It is designed to assist members who encounter job-related problems requiring legal expenditure. Through it, the Association facilitates legal advice and assistance/representation in a range of matters arising directly from a member’s service or professional duties.

What matters does the Scheme assist with?

The day-to-day running of the Scheme is the responsibility of the Assistant

Secretary, Legal Services, who has a general delegated authority to determine (grant or decline) applications for assistance from members. Grants of assistance generally fall within one of five broad categories:

• Discipline related matters: Assistance is available to enable members to navigate their way through the discipline system. For example, to obtain advice prior to being interviewed or providing a response to a directed memoranda, or to respond to one of the various forms of Show Cause notices that arise from the disciplinary system, or potentially to seek a Review of an Order in the Industrial Relations Commission of New South Wales.

• Employment related matters:

Assistance is available to obtain advice and/or potentially pursue complaints of unlawful discrimination, or claims under the Award.

• Medical related matters: Assistance is available to enable pre and post88 members to obtain advice and/ or representation in relation to claims and/or disputes that arise (respectively) under the pre-88 super scheme, or the Workers’ Compensation legislation, including disputes about the provision of suitable employment as part of a return to work plan.

• Criminal matters: From time-to-time, members will be charged with criminal offences arising from duty. Whilst assistance in this matter type is closely scrutinised, if charges arise directly from the performance of duty, the officer was acting in good faith and the officer’s conduct is consistent with ethical policing practices, assistance to defend a charge may be available. We do not provide funding for guilty pleas.

• Coronial matters and/or Law Enforcement Conduct Commission (LECC) inquiries: Coronial matters and LECC inquiries can be some of the most stressful matters police can be involved in. For officers who are identified as having a ‘sufficient interest’ in a Coronial Inquest, entitling them to be separately represented from the police force itself, or officers who are summonsed to appear before the LECC, assistance may be available.

Grants of assistance are not generally available for civil damages claims (tort claims like assault or defamation, or work injury damages). Although not generally covered, if an aspect of the matter can be seen as in the general interest of the membership or there are unusual circumstances, assistance may none the less be granted. When in doubt, just apply – what have you got to lose?

If you think you may need the assistance of a lawyer to deal with a matter arising directly out of your employment, reach out to the Association through your local Association contact, your Association Organiser, or directly to info.centre@ pansw.org.au.

In light of feedback from members, the Association will now be publishing a regular article from the Legal Services Division to inform members of our operations, about the sort of assistance that members can secure through the Scheme, or a case note on a recent decision of a Court or Tribunal involving police.

This month we refer to an important recent victory the Association secured regarding the time limit or filing an application under s 181E of the Police Act (an application for a review of a 181D Order).

14 Days Means 14 Days

One of the features of police employment that is different to the public service (or employment in the private sector) is the power of the Commissioner of Police under section 181D of the Police Act to remove a police officer in whom she has lost confidence, having regard to their competence, integrity, performance or conduct.

If an officer is removed from the NSWPF under s 181D, they have a right to bring an application for a review of that Order before the Industrial Relations Commission of New South Wales (the IRC). Many members refer to these applications to the IRC as an ‘unfair dismissal’ claim. In reality, they are not. Unfair dismissal claims are made to the IRC and are brought under the Industrial Relations Act 1996 itself. Applications for a review of a s 181D Removal Order are made to the IRC, but are based on provisions in the Police Act (in particular, s 181E and Division 1C of Part 9 generally).

Why does that matter?

While there are similarities between the unfair dismissal jurisdiction under the Industrial Relations Act, and the review mechanisms for removal under the Police Act, they are not the same. One very important distinction is the time within which an application for review of a s 181D Removal Order must be made to the IRC.

An ordinary unfair dismissal must be filed within 21 days after the date the person was dismissed. That timeframe may be extended by the IRC if there is a sufficient reason to do so.

An application under s 181E of the Police Act for the review of a s 181D Removal Order must be made to the IRC no later than 14 days after the removal, “starting from the day on which the applicant is given a copy of the order to which the application relates. Unlike unfair dismissal applications, time to file cannot be extended by the IRC.

If you miss the deadline to file an application in the IRC seeking a review of the s 181D Removal Order, you have lost your opportunity to challenge your removal or seek reinstatement. The proper construction and operation of that time limit is of critical importance to the membership generally, and officers subject of a Removal Order in particular.

In a recent decision, the IRC clarified the practical operation of that time limit.

Former Senior Constable Pinchen was removed from the NSW Police Force in August 2022. The s 181D Order removing him from the NSWPF was served via his lawyers, on 26 August 2022 at 4.50pm (the Order).

On 9 September 2022, being the 14th day after the day, he was served the Order. Pinchen then filed an application under s 181E of the Police Act seeking a review of the s 181D Removal Order (the Application).

Shortly thereafter, the Registrar of the IRC wrote to Pinchen’s lawyers alleging that the Application was filed out of time, referring to an earlier decision of the Commission in Bailey v Commissioner of Police [2014] NSWIRComm 53.

Lawyers for the Commissioner of Police subsequently filed a Motion seeking to have Pinchen’s application dismissed for want of jurisdiction, based on a contention the Application was filed out of time.

The central issue was the meaning of the phrase “starting from the day on which the applicant is given a copy of the order …”, in s 181G(1)(b) of the Police Act

The Commissioner of Police alleged the use of the phrase “starting from” when read in context meant the 14 days included the day on which the Order was served. The Association (on behalf of Pinchen), argued 14 days did not include the day on which the Order was served, but meant 14 days after the Order was served, starting from the day on which the Order was served.

In a considered decision, the recently appointed IRC Commissioner Janet McDonald accepted the Association’s contention that the effect of the modification made by s 181G(1)(b)(i) is to shorten the time limit from 21 days to 14 days; and to stipulate that the day after which the time period starts to run is identified as the day on which the applicant is given a copy of the order.

The impact for members

This important decision confirms that police officers have 14 clear days after the day they are served with a s 181D Order to file an application in the IRC, if they seek to review an Order removing them from the NSWPF.

If a member has been removed, they should seek the advice of the lawyers who have assisted them throughout the discipline process. If you do not have a lawyer assisting you, contact the PANSW for assistance.