But graduation seemed like yesterday: Medical retirement – rights and protections

THEY SAY, ANECDOTALLY, that the career expectations of police officers are shortening. Gone are the days of 40 year veterans and you’d be lucky to make 10 years.

It’s hardly surprising.

We folk here at TGB are in a fortunately unfortunate position. I say fortunate in that we act for many police officers in many jurisdictions. We act for police officers in Western Australia, the Northern Territory, South Australia, and frequently federal police officers. We understand police officers and we can advise you promptly on matters concerning you. On the other hand, I say unfortunately because we see the bad side too. Police officers in all states and territories do a tough job, often thankless, often heavily scrutinised, often leading to injury. Sometimes, career ending.

We get to see a lot, but sometimes it’s not uncommon for disparity among jurisdictions. For example, medical retirement is rarely exercised in South Australia, likely because of a strong workers compensation scheme. In the Northern Territory it’s a burgeoning theme, and that’s despite members having access to both workers compensation, and/or extended sick leave beyond that of the ordinary worker.

Federal police, likewise, have ComCare, the Commonwealth workers compensation scheme. As for those of you in the West, nil, nada, zilch… unless you’re medically retired.

And so medical retirement has a significant impact. It’s akin to a termination as it’s a forced retirement. It’s a statutory scheme that is not overly intricate, however can cause much consternation. But importantly, you do have rights and you do have entitlements.

First, if the Commissioner suspects you are medically unfit, then he can arrange for you to be assessed by the medical board consisting of 3 practitioners. You must comply with the direction and once you have been assessed the board provides a report to the Commissioner.

Second, once the Commissioner receives the report, and the Commissioner is of the opinion you are medically unfit, you will receive notice in writing that the Commissioner has formed that opinion, and that as a result he is deciding whether or not to retire you on medical grounds.

Third, if you receive that notice, then strictly within 28 days you can provide submissions to the Commissioner on the notice, his opinions and any other information therein, as well as submit your own report/s for consideration.

Fourth, after receiving your submission and any accompanying documents, the Commissioner will determine whether or not you are medically unfit and give you notice of same. He must take into account any materials you submit, and he must remain of the opinion that you are medically unfit.

I pause to make a couple of observations at this point.

Until such time as the Commissioner makes his decision that you are medically unfit and he intends to retire you, it’s a process indicative of an intention to do something. It is not the case that it is set in stone. And so, it’s probably the most important stage, because should you disagree with his opinion and wish to rebut the intention to retire you, it’s your opportunity to take all steps to attempt to persuade the Commissioner to take a different course. He is obliged to take into account your submissions and evidence and he can revoke his notice of intention.

The next observation we make is that there’s somewhat of a state of flux as to what is meant by “medically unfit.” By its statutory definition, to be “medically unfit” means the member is unfit, on medical grounds (whether physical or mental or both) to perform the functions of the office to which the member is appointed under this Act. The quandary exists as to whether that is the office of Constable to which you swear your oath, or the office you held at the time of your unfitness.

The next quandary is the level of inquiry the Commissioner is to take to determine the extent of the unfitness. In NSW, the Full Court of the Supreme Court in a case called Cottle determined that the Commissioner is obliged to go beyond the black and white of text on a report and make a number of nonmedical assessments, including what level of fitness is required to discharge the duties of the officer’s position, and whether or not the unfitness or incapacity has arisen from causes within the officer’s control – in other words, it requires far more than just relying on a medical report. I think that applies with equal force here and is something to consider and seek advice about if you are in this position.

There’s a case currently before the Supreme Court in the Northern Territory that I am involved in which is determining what “duties” actually mean in the context of the point in time in which a member becomes “unfit”, and the way in which the medical retirement scheme up there is supposed to work – that is whether the Commissioner has an obligation to try and return members to work before medically retiring them. Stay tuned.

And finally, as to process, if the Commissioner decides to retire you he must give you notice of that, the reasons for his decision, and the date upon which it is to take effect.

You can appeal to the WA Industrial Relations Commission (IRC) after the retirement takes effect. In other words, once a decision has been made.

The basis upon which it can be appealed is that it was harsh, oppressive or unfair and must be done within 28 days.

The IRC must consider the reasons for the Commissioner’s decision, your case as to why you say it’s harsh, oppressive or unfair, and then the Commissioner has a right of reply as to your dispute. At all times you bear the burden of establishing that the decision was harsh, oppressive or unfair.

In deciding the appeal, the IRC will take into account your personal interests, but also that of the public interest.

There are a number of possible personal entitlements upon medical retirement. Not all will be applicable to you and so it’s important to seek advice before taking your next steps.

You are ordinarily entitled to a maintenance payment after the retirement has taken effect, that is for the 28 days after retirement calculated on your salary as at time of retirement.

You are also entitled to your industrial entitlements, such as annual leave and long service leave.

Part 2D, the newest addition to the Police Act, governs possible compensation for medically retired members.

This part is a bit more complex, and will be peculiar to each individual. Accordingly, it’s important you seek advice as to what you may be entitled to.

You may be entitled to:

• Payment of a salary amount;

• Payment of a vocational rehabilitation amount;

• Compensation for a whole person impairment, that is, the degree of permanent impairment of a part or faculty of the body;

• Compensation for noise induced hearing loss or AIDS;

• Compensation for total and permanent incapacity.

There is also the ability of a member to dispute the entitlements in the Police Compensation Tribunal in the IRC through which you may be represented.

These can be stressful times, especially if you wish to keep your job. Assuming you wish to challenge the intention to retire, it’s important to act at the early stages of the matter and seek advice. Often that’s where the grunt work is done to set up any future dispute. Likewise, should you be medically retired, we can protect your rights through the appeal stage. Or if you just wish to accept it, then advice on your likely entitlements might be all you need.

Whatever the case, it’s what we do, and we’re available to assist.

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GREG STEWART

GESB Key Account Manager for WA Police