Alexander v Commissioner of Police [2009] NSWIRComm 3 | Case summary

Alexander v Commissioner of Police [2009] NSWIRComm 3 | Case summary | Zoe

1 Raymond Alexander was a Probationary Constable in the New South Wales Police Force, based at Macquarie Fields Area Command. On 2 October 2007, Mr Alexander and his partner, Senior Constable Deborah Borg, were called to investigate a domestic violence dispute at Claymore. The dispute concerned an allegation by Ms T that her former partner, Mr L, had assaulted her. There was an enforceable Apprehended Violence Order ("AVO") protecting Ms T from Mr L. The AVO prohibited Mr L from going within 100 metres of any premises in which Ms T resided. 2 Whilst SC Borg was obtaining information from Ms T at her residence, Mr Alexander observed an unidentified man enter through the front door of the residence and exit via the laundry. Mr Alexander neither challenged the man nor did he attempt to prevent him from leaving the house. Mr Alexander subsequently notified SC Borg about the unidentified man, and they searched for him outside the residence, but were unsuccessful in locating him. It was later established that the man was Mr L. 3 Mr Alexander later told SC Borg he did not see Mr L and was only told about his presence in the house by Ms T's daughter. Mr Alexander maintained this lie on three subsequent occasions. 4 On 1 September 2008, Assistant Commissioner Michael Corboy, Commander, Education and Training Command, signed an order under s 80(3) of the Police Act 1990 dismissing Mr Alexander from the New South Wales Police Force. The order was founded on the grounds that Mr Alexander failed to follow basic policing procedures by neglecting to challenge an unidentified man thereby placing persons in potential danger and his subsequent untruthfulness regarding the circumstances of his attendance at Ms T's residence. 5 Mr Alexander subsequently sought relief under Pt 6 of Ch 2 of the Industrial Relations Act 1996 ("the Act"), alleging unfair dismissal. Mr Alexander seeks reinstatement to his former position on the grounds that his removal was harsh, unreasonable and unjust. Factual background 6 Mr Alexander commenced employment as a Probationary Constable at Macquarie Fields Area Command in late January 2007. He was placed in Team 2 under the guidance of Field Training Officers ("FTOs") Senior Constable Breed and Constable Rice. After failing his first attempt to complete Session 3 of the Probationary Constable's training in April 2007, he commenced a Performance Development Plan ("PDP"). After successfully completing the PDP, Mr Alexander passed Session 3 in August 2007 and commenced Session 4 of the programme in September 2007. 7 On the evening of 2 October 2007, Mr Alexander and SC Borg were called to the domestic dispute described earlier. Upon arrival at Ms T's premises, Ms T disclosed to Mr Alexander and SC Borg the AVO and the alleged assault. Whilst SC Borg was taking a statement from Ms T in the kitchen, Mr Alexander walked into the living room. He witnessed a man enter the front door of the house and walk quickly through the house to exit via the laundry door. Mr Alexander asked one of Ms T's children standing nearby who the man was, and after three questions, the child answered that the man was Mr L. Mr Alexander proceeded to the kitchen and asked Ms T as to whether Mr L was wearing some particular clothes and was of a particular appearance. Ms T agreed with the description of Mr L, after which Mr Alexander stated that he believed that Mr L had just walked through the house and out the back.

8 SC Borg immediately ran to the laundry door and searched for Mr L in the rear yard. Mr Alexander used his portable radio to notify a nearby patrol car of a description of Mr L and request that they search the area for him. SC Borg returned to the house and asked Mr Alexander why he had not stopped Mr L. Mr Alexander replied that he did not know who the man was at the time. SC Borg's evidence was that at this point, Ms T's child entered the kitchen and said, "I was grabbing onto his arm trying to stop him and saying to you [Mr Alexander] 'this is Paul, this is Paul [Paul being Mr L]'". Mr Alexander then replied, "Oh, I'm sorry, I didn't hear you". 9 SC Borg continued to take Ms T's statement and then she and Mr Alexander left the premises. According to SC Borg, the following conversation ensued as they approached the police vehicle: Borg: I am extremely annoyed with you. I could have been shot in the back of the head then. Why didn't you challenge him? Alexander: Oh, I didn't see him. Borg: You just described him inside. Alexander: No, that was the little girl who told me what he looked like. Borg: That's bullshit Ray. Alexander: No, I didn't see him. Look Debbie I would never let anything happen to you. Borg: Look Ray, in future you have to challenge people who walk though the front door. 10 After they had entered the car and started to drive down the street, SC Borg saw a male who fitted the description of Mr L about 100 metres from their car. SC Borg pointed to the male and asked Mr Alexander if it was, indeed, Mr L. Mr Alexander replied, "I don't know, I didn't see him" and drove in the direction that SC Borg had pointed to. Mr Alexander's evidence was that he required the use of prescription lenses for viewing objects at a distance, but was not wearing his glasses at that point in the evening. SC Borg stated that Mr L was clearly visible from the illumination created by the car's headlights, and understood Mr Alexander's comment to mean that he had not seen Mr L earlier at the house. Mr Alexander's evidence was that his assertion about not seeing Mr L was pertaining to the moment when SC Borg pointed out a male figure. He stated that although he could make out a figure in the distance, he was unable to identify any characteristics of the figure. SC Borg and Mr Alexander were unable to apprehend Mr L. They continued performing other general duties and later returned to the police station. 11 Upon her return to the Macquarie Fields LAC, SC Borg formally reported the evening's incidents, which were, in turn, brought to the attention of the Education Office at the Macquarie Fields LAC. On 4 October 2008, Mr Alexander spoke with Constable Esposito about the incidents and maintained his position that he did not witness a man walk through the house during his attendance at Ms T's residence. In another recounting of the incident on 8 October 2007, Mr Alexander stated to Constable Bowling that he saw only a blur and a quick description of a man in the house but that he was gone by the time Mr Alexander got to the laundry door. 12 On 24 October 2007, Mr Alexander met with Sergeant Richard Simon in his capacity as Education Officer of Macquarie Fields LAC in relation to his general progression throughout the probation period and the incident of 2 October 2007. On initial questioning, Mr Alexander maintained his position that he had not seen Mr L enter and exit the premises during the visit. Sergeant Simon indicated that SC Borg had made an official complaint regarding what she considered to be lies told by Mr Alexander. Sergeant Simon suggested that Mr Alexander confess any untruths before any further investigations were made. After some persuasion in this regard, Mr Alexander admitted that he had seen a man in the house but had subsequently lied about this event so as not to seem incompetent or be the subject of ridicule amongst his peers. 13 On 25 October 2007, Mr Alexander recorded an outline of his version of the events of 2 October 2007, including his admission of subsequent untruthfulness to SC Borg, Constable Esposito, Constable Bowling and Sergeant Simon. Investigations were then carried out regarding Mr Alexander's conduct and in December 2007 he was transferred to a new team under the guidance of FTO Leading Senior Constable Michelle Johns and Field Supervisors Sergeants Darren Reilly and Laurel Miller. Mr Alexander failed his Session 4 course in December 2007 and was permitted to withdraw from the following Session 4 programme. Mr Alexander continued to work on restricted duties until 1 September 2008 when he was dismissed from the New South Wales Police Force. 14 The order under s 80(3) of the Police Act set out the basis upon which Mr Alexander was dismissed. Following an outline of the facts, Assistant Commissioner Michael Corboy gave his reasons for dismissing Mr Alexander: Considerations 20. I am greatly concerned by your failure to apply proper operational policing principles during the incident at claymore on 2 October 2008. I consider that your failure had the potential to expose Senior Constable Borg and the [T] family to danger. I consider that this failure reflects on your competence to be a police officer. In this regard, I also note that you initially failure both Session 3 and Session 4 of the Associated Degree in Policing Practice training and consequently had to be place don a three month Probationary Constable Development Plan. However, I have taken account of your contrition and acceptance that your conduct was below the standard expected of you. I consider this to be a significant mitigating factor.

Q. Let's go back a bit, I said to you there would be, I suggest to you, no occasion in the Police Force that justify telling a lie - what do you say to that? A. I believe. Well, 99 percent of cases I believe that is the truth, you should always tell the truth. But I understand, like I said, I believe I know why he lied and it was in order to protect himself from being ridiculed further. That is why I believe he lied. 27 The applicant requested that SC Borg be made available for cross-examination and the respondent complied. SC Borg, of course, was the senior officer present on the night of the domestic incident on 2 October 2007 and the officer who expressed serious concern that Mr Alexander had failed to act in an appropriate manner. SC Borg expressed apprehension that her life could have been put in danger because of Mr Alexander's failure to act. SC Borg was asked the question that if Mr Alexander was to get his job back "would you personally be prepared to work with him?" The senior constable's answer was "Yes". Applicant's case 28 The applicant's case was founded on the principle that his dismissal was, in particular, 'harsh' in the circumstances. Ms P Lowson of counsel for the applicant contended that due to a natural lack of assertiveness and confidence, coupled with a team environment in his first year as probationary constable that was unconducive to fostering growth and improvement in these areas, Mr Alexander experienced difficulty fulfilling the duties of a police officer. This weakness often manifested itself when the applicant was required to handle urgent or important issues in dealing with the public. It was submitted that as a probationary constable in his first year of police work, the applicant should have had further opportunity to improve in these areas of weakness, with the assistance of peers and superiors, an opportunity not readily granted to him due to the team to which he was initially allocated. 29 Upon being allocated to a different team, Mr Alexander was able to seek and receive support from his superiors and thus begin to learn and grow in confidence, as every probationary constable should be allowed to do. Ms Lowson emphasised that this improvement in fulfilling work duties and in overall confidence as a person and police officer occurred throughout a period of time in which Mr Alexander was under investigation and fully aware of the real possibility that he may, in fact, be dismissed due to the incidents surrounding 2 October 2007. It was contended by the applicant that this evidenced a genuine and fervent desire to improve on his weaknesses in his position and fulfil his role as an effective and dutiful police officer. Given that the applicant had encountered some serious confidence and assertiveness issues, but had improved when fostered in a positive team dynamic, counsel submitted that he has proven that he was able to progress and mature in his position. The unwavering support from his peers, including SC Borg, was further evidence that the applicant was thriving in his work within a new team, and that his commitment to personal and professional development was apparent to his colleagues. 30 Ms Lowson submitted that the dishonest behaviour exhibited by the applicant was a one-off occurrence, and although displayed on four occasions, involved only the one issue. It was, therefore, not indicative of a pattern of dishonesty, and although the applicant's untruthfulness was maintained for three weeks he frankly confessed to his dishonest statements and fully cooperated with internal investigations surrounding the incident and his behaviour. It was submitted that whilst this behaviour was in no way excusable and rightly subject to disciplinary action, the applicant's contrition and regret, together with extensive positive character evidence, should outweigh the respondent's grounds to dismiss him and compel this Commission to determine that his dismissal was harsh, unjust or unreasonable. Respondent's case

31 Counsel for the respondent, Mr R S Warren, argued that the behaviour of the applicant has fractured the employment relationship such that the respondent was subsequently unable to place any confidence or trust in the applicant. Referring to the NSW Police Code of Ethics, Mr Warren stressed the importance of the requirement for a police officer to act honestly and with integrity at all times. A failure to do so would result in a serious question about the suitability of an officer remaining in the Force, and depending on the seriousness of the conduct, render the officer unqualified to hold that position. Mr Warren sought to adduce evidence from all of the witnesses that supported this submission, including Mr Alexander. The respondent contended that the present case had resulted in a severing of the trust necessarily inherent in the employment relationship and, therefore, the dismissal was not harsh, unjust or unreasonable. The respondent emphasised the applicant's dishonesty to four colleagues on four separate occasions, and submitted that Mr Alexander only confessed to the lies when he realised the inevitability of the truth emerging from further investigations. 32 In addition to the applicant's dishonesty, Mr Warren sought to highlight the seriousness of Mr Alexander's inaction in failing to challenge or attempting to stop an unknown male entering and exiting the house at Ms T's residence. The respondent contended that Mr Alexander would have been well aware that there was an AVO pertaining to the alleged offender, and that it was seriously neglectful to allow the unknown man to leave unquestioned and unchallenged. 33 The respondent further contended that Mr Alexander's inability to successfully complete sessions 3 and 4 on his first attempt was additional proof of his unsuitability to serve as a police officer. Mr Warren suggested that the applicant's poor academic performance throughout sessions 3 and 4, programmes designed to assess a probationary constable's practical understanding of the policing task, was an indicator that the applicant was lacking important attributes necessary for the position. Consideration

34 The present application is not easy to resolve. Both counsel have put cogent cases in support of their respective positions. Mr Warren relied heavily on the fact that the applicant failed in a basic policing task thereby placing persons in danger, performed poorly academically, lied to protect himself, maintained the lie and thereby breached one of the fundamental tenets of the Police Code of Conduct and Ethics to "act honestly, truthfully and with integrity in all of your dealings with other employees and the public". All of this is undoubtedly correct. 35 Ms Lowson, on the other hand, submitted that the Commission needed to have regard to the applicant's natural reticence, the absence of guidance and support from his original FTOs in overcoming his lack of assertiveness and confidence, his real fear of not succeeding as a police officer because he had "messed up or screwed up" and the barrier that represented to him telling the truth about what occurred on 2 October 2007, his marked improvement in confidence and general performance under new FTOs after December 2007, his genuine expression of remorse and contrition and the evidence of support for the applicant amongst fellow officers, including their willingness to continue to work with him if he were to be reinstated. 36 The Commission's task is to determine whether the dismissal of Mr Alexander was harsh, unjust or unreasonable. The determination of that question involves mixed issues of fact and law, rather than the exercise of discretion per se: see Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325 at [4], citing Hollingsworth v Commissioner of Police (1999) 47 NSWLR 151 at 181-182 and Port Macquarie Golf Club Limited v Stead and Another (1996) 64 IR 53 at 59. 37 In considering the statutory test of harsh, unjust or unreasonable, reference may be made to the observations of the High Court (McHugh and Gummow JJ) in Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410, where it was observed at 465 ([128]):

In Bostik (Australia) Pty Ltd v Gorgevski [No 1] (1992) 36 FCR 20 at 28, a decision of the Full Federal Court, Sheppard and Heerey JJ said of the phrase "harsh, unjust or unreasonable" as it appeared in the Manufacturing Grocers Award 1985: "These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct." The above propositions should be accepted as applicable to the present appeals. However, it should be emphasised that the present task is to construe the Award and that nothing now said necessarily determines the meaning of the phrase "harsh, unjust or unreasonable" in any other setting. See also Outboard World Pty Limited T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 182-183. 39 Reference should also be made to what Watson J said in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 at 233. His Honour articulated what has become a fundamental guiding principle that even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal and to intervene where, because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence: I fail to see why in applying this test ["was the termination ... so unfair as to warrant interference by the Commission?"] to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J., in Loty's Case ([1971] AR 95 at p 99), the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.

41 If the Commission decides the dismissal was harsh, unreasonable or unjust, it is then required to consider what is an appropriate remedy, noting that the primary remedy under s 89 of the Industrial Relations Act for an unfair dismissal is reinstatement, together with other relief specified in the section for continuity of employment and for compensation for remuneration lost before the reinstatement was ordered: Burge v NSW BHP Steel Pty Ltd [34]; Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212 at [88]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211; (2003) 128 IR 37 at [125]; Plummer v Stannard Bros Launch Service Pty Limited [2005] NSWIRComm 301 at [14]. 42 The question of what remedy to apply is a matter for the Commission's discretion: Retail Traders Association NSW v Shop, Distributive and Allied Employees Association of NSW (1990) 36 IR 38 at 52 per Cahill V-P. However, in its consideration of reinstatement as a remedy, the Commission is required to consider whether to do so would be impracticable: Carlton and United Beverages Limited and Philip Brunt [2006] NSWIRComm 98 at [57]. 43 It will be recalled that in the order dismissing Mr Alexander, Assistant Commissioner Corboy stated: Integrity is a core value of the NSW Police Force, and I believe that the highest standards of personal integrity and truthfulness are critical for a person to be a police officer. I consider that your conduct has been entirely inconsistent with the standards expected of an officer of the NSW Police Force by both the Commissioner of Police and the NSW community. In these circumstances, I have decided that your untruthfulness, as a probationer, demonstrates a lack of the standards of integrity expected of a police officer, and your unsuitability to be confirmed as a constable of police. On this basis alone, I consider that dismissal would be appropriate. The other matters raised in this Order reinforce my decision. 44 It is apparent from what was said by Mr Corboy that it was Mr Alexander's untruthfulness, demonstrating as it did a lack of personal integrity - a critical characteristic for a police officer - that lay at the heart of the reason for Mr Alexander's dismissal. In this respect, I note that s 7 of the Police Act contains a statement of values of members of the Police Force, which places integrity "above all": s 7(a). 45 Mr Alexander was well aware of the obligations upon him regarding the high standards of integrity he was required to maintain. Did his failure to meet those standards justify his dismissal or was his dismissal harsh, unreasonable or unjust in all of the circumstances? 46 In answering that question, one has to judge a number of competing considerations. First, it is important for the Police Force to maintain the highest standard of integrity amongst its officers; integrity is a supreme requirement in a police officer. It was very clear from Mr Warren's cross-examination of witnesses that all of the police officers called recognised the importance of integrity, in particular the necessity of officers dealing honestly and truthfully with each other and with the public. The Force's credibility in the community as a body charged with the maintenance of law and order depends upon the community knowing that police officers are persons of integrity; that they will be honest and truthful in their dealings with each other and with the public. The need to maintain a high standard of integrity is a powerful consideration in favour of dismissal where a probationary constable fails to meet the standard. Further, as Walton J, Vice President observed in Van Huisstede v Commissioner of Police (2000) 98 IR 57 at [249]: The power of the Commission to order the reinstatement of an employee should always be exercised with caution (see Slonim v Fellows (1984) 154 CLR 505 at 515), particularly where the case involves a public position such as that of a police officer.

47 The Commissioner of Police is entitled to expect that a probationary constable, who is, after all, 'on trial' as to his or her suitability, will observe the Police Code of Conduct and Ethics and the values of the Police Force and, if the constable does not, to give serious consideration to whether the necessary degree of trust and confidence has been so undermined as to justify separation. 48 However, it will not automatically follow that every failure to achieve the highest standard of integrity, regardless of its level of gravity, will result in termination of the employment of a probationary constable. The probationary constable's conditional offer of employment acknowledges this to be the case by providing a discretion to the employer as to whether to dismiss. Moreover, whilst the Police Act emphasises the importance of maintaining a Police Force that has integrity the Industrial Relations Act also gives this Commission the power to remedy any dismissal of a probationary police officer that is harsh, unjust or unreasonable. 49 If I were simply considering whether Mr Alexander's dismissal was justified because he lied to avoid censure and ridicule and there were no other considerations to be taken into account in his favour, it would be difficult to avoid the conclusion that the dismissal was justified. At the point and in the circumstances that Mr Alexander first lied to SC Borg, his career was at its lowest ebb. No reasonable person could have much sympathy for Mr Alexander in failing to protect himself, his partner and the occupants of the house and then having lied about it and continued to lie about it. 50 However, other considerations present themselves. Mr Alexander failed to get off to a good start at Macquarie Fields. He appears to have been one of those individuals who, because of his lack of confidence and assertiveness, became something of a target or butt of criticism within the Macquarie Fields Police Station. Equally, however, when Mr Alexander's treatment by his second set of FTOs is compared with the first, it would appear that his initial FTOs did not put in the effort or did not possess the insight to adequately recognise Mr Alexander's shortcomings and provide him with the necessary assistance to overcome those deficiencies. The role of an FTO was described by Leading Senior Constable Johns: [I]t involves working almost constantly with a probation constable either in their first six weeks or their first 12 weeks, every shift, and obviously teaching them how to perform in the role of a police officer, monitoring how well they work, giving them guidance, just teaching them, I guess, how to be a policeman, really.

54 Although the seriousness of Mr Alexander's transgression was mitigated because of his state of anxiety and insecurity, which I consider was contributed to by the failure to adequately monitor, guide and teach him in his initial probationary period, I would be reluctant, on this basis alone, to arrive at the conclusion that his dismissal was harsh, unreasonable or unjust. However, in applying the statutory test there are other considerations to be taken into account, they being that: s Mr Alexander was in his probation period and he was very keen to become a police officer, s Mr Alexander was relatively young with limited work experience when he entered the Police Force, s under proper tutelage Mr Alexander's performance as a police officer improved, he renewed his commitment and his confidence increased. He has demonstrated an ability to complete his probation and shows promise of becoming a successful police officer, s between December 2007 and March 2008 Mr Alexander performed full operational duties; after moving to restricted duties he was entrusted with his appointments and worked relatively unsupervised on a number of occasions; he was not suspended from duties, s it was out of character for Mr Alexander to have lied in the way he did, s Mr Alexander recognised the gravity of his conduct and was genuinely remorseful, s there was no evidence that Mr Alexander's return to work presented any difficulty for the Police Force in general, or for any individuals at the workplace, and s most significantly, police officers up to the rank of sergeant and including SC Borg (who was the officer who may have been placed at risk by Mr Alexander's failure to challenge Mr L), indicated their preparedness to work with him despite knowing Mr Alexander had lied. Whilst I would accord more weight to the Police Commissioner's view about the implications of a lack of integrity for his Force than how individual officers might feel towards an officer who lied, the fact that these experienced officers have volunteered to give evidence in the applicant's favour is a significant consideration given it is they who would have to work with Mr Alexander on a day to day basis if he were to be reinstated. 55 I regard it as understandable that the respondent dismissed Mr Alexander; the Commissioner was concerned to uphold the integrity of the Police Force. This is not one of those cases where there was an obvious or blatant injustice caused by the dismissal. However, given all of the circumstances, I consider that the penalty was too severe; that it was unreasonable not to have given Mr Alexander another chance to realise his goal of becoming a confirmed police officer.

Alexander v Commissioner of Police

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