Blackadder v Ramsey Butchering Services Pty Ltd

LEGISLATION CITED: Industrial Relations Act 1996 s89 Police Act 1990 s173, s181D, s181E, s181F, s181G

Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 Budlong v NCR Australia Pty Ltd [2006] NSWIRComm 288 CASES CITED: Hosemans v the Commissioner of Police [2004] NSWIRComm 253 Hosemans v NSW Police (No 3) [2005] NSWIRComm 161 Little v Commissioner of Police (No 2) [2002] NSWIRComm 52 Van Huisstede v Commissioner of Police (2000) 98 IR 57

HEARING DATES: 3, 5, 10, 11, 12, 15, 16, 17, 19 December 2008 and 22 January 2009

APPLICANT Mr D Nagle of counsel Solicitor: WG McNally Jones Staff Mr N Keats LEGAL REPRESENTATIVES: RESPONDENT Mr A Searle of counsel Solicitor: Bartier Perry Mr M Paul

Application by Alyson Reid-Frost for review of an order under s 181E of the Police Act 1990

1 In these proceedings, the applicant, Alyson Reid-Frost, seeks a review of a decision made by the respondent, Commissioner of Police, to remove her from the New South Wales Police Force. 2 The decision to remove her was made by the Commissioner under s 181D of the Police Act 1990 ("the Act"), which is in the following terms: 181D Commissioner may remove police officers

(1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. (2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister. (3) Before making an order under this section, the Commissioner: (a) must give the police officer a Notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and (b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the police officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force. (5) The removal takes effect when the order is made. (7) Except as provided by Division 1C: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, "tribunal" means a court, tribunal or administrative review body, and (without limitation) includes GREAT and the Industrial Relations Commission. (7A) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action. (7B) Nothing in Division 1C limits or otherwise affects the Commissioner's power to vary or revoke an order in force under this section. (8) For the purposes of this Act, removal of a police officer from the NSW Police Force under this section has the same effect as if the police officer had resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from the NSW Police Force. (9) The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the police officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action. 3 The applicant is entitled to have the decision of the respondent reviewed by this Commission pursuant to s 181E of the Act. There are other provisions of the Act that govern these proceedings, which include, relevantly for present purposes, ss 181F and 181G. These are in the following terms. 181E Review generally

(1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the "Commission") for a review of the order on the ground that the removal is harsh, unreasonable or unjust. (2) An application under this section does not operate to stay the operation of the order in respect of which it is made. (3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1).

(1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)).

181G Application of Industrial Relations Act 1996 to reviews

(1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications: (a) section 83 (Application of Part) is to be read as if subsection (3) were omitted, (b) section 85 (Time for making applications) is to be read: (i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and (ii) as if subsection (3) were omitted, (c) section 86 (Conciliation of applications) is to be read as if it provided that a judicial member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review, (d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted, (e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made, (f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless: (i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or (ii) the Commission gives leave. (2) The Commission may grant leave as referred to in subsection (1) (f) (ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances: (a) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information, (b) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently or vexatiously, (c) where the Commission is satisfied that the new evidence might materially have affected the Commissioner's decision. The nature of these proceedings

4 I proceed on the basis that I am required, in determining these proceedings, to "make a fresh and independent review" of the Commissioner's decision based not only on the material before the Commissioner, but on any new evidence which has been admitted for the purpose of these proceedings. (See Hosemans v the Commissioner of Police [2004] NSWIRComm 253 (Walton J Vice-President, Boland and Staunton JJ) at [134].) 5 Furthermore, I am required by s 181F(1) of the Act to consider sequentially the three matters which are therein set out. 6 In proceeding, I am mindful also that the burden of demonstrating that her removal from the police force was harsh, unreasonable or unjust falls on the applicant (s 181F(2)). 7 I shall also have regard to the applicant's interests and the public interest as required by s 181F(3). 8 Importantly, for the purpose of these proceedings, the applicant has asked that I examine the processes adopted by the Commissioner in and about the formulation and making of his decision to remove her. That the examination of process is a matter which, in appropriate circumstances, must be undertaken was referred to by a Full Bench of this Commission in Little v Commissioner of Police (No 2) [2002] NSWIRComm 52. The Bench (Wright J President, Walton J Vice-President and Boland J) said at [75]: "75 These latter considerations then lead to a consideration of the second major aspect of the appellant's case, namely, whether his Honour was in error in concluding that, where the substance of the allegations made against a police officer were satisfied, it was unnecessary to embark on any examination of process. In substance, his Honour suggested that, in such circumstances, a procedural failure could not suffice to justify any interference with the ultimate sanction. Thus stated, we cannot agree with the conclusion reached by his Honour. The legislature has, no doubt cognisant of the significant powers conferred on the Police Commissioner under Pt 9 of the Police Service Act , laid down various procedural stipulations associated with the removal of a police officer which, in our view, require, if not strict compliance then at least "a careful and punctilious regard to correct procedure", and are of significant importance to the review of a decision made under s181D of the Police Service Act . In this respect, we consider that the correct approach to issues of this kind is synthesised in Van Huisstede as follows at [193] to [200]: 193 In my view, the concept of a "review" must at least have the effect of directing the Commission's attention to the decision of the Commissioner and the decision-making process which was adopted by the Commissioner. Although the removal of a police officer is based upon the confidence of the Commissioner, in my view, the discretion of the Commissioner must be exercised in accordance with the principles (earlier identified in this decision) which were discussed in both Bigg (No. 2) and Oswald (No. 2) . This conclusion flows from statements of the Full Bench in Newton (No. 2) at 79 - 80 with which I respectfully agree: '… it may be said that the statutory scheme established by the Police Service Act does not leave open the possibility that the Commissioner of Police will be free to act ill advisedly, or capriciously, in relation to the exercise of the obligation imposed on him by s181D(4) by failing to give a dismissed police officer proper reasons for the decision to dismiss. This necessarily follows because the discretion given to the Commissioner of Police by s181D(1) to remove a police officer from the Police Service must be exercised in the way discussed by the Full Bench of the Commission in Bigg (No 2) (at 457), namely, in the manner discussed by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 117 at 189, as follows: "… a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself …" That approach applies to the whole of the exercise of the discretion given by s181D, including the obligation under s181D(4) in relation to the giving of reasons.'

194 What may be further deduced from the decisions in Bigg (No. 2) and Oswald (No. 2) is as follows. In determining whether the decision of the Commissioner to remove an officer was harsh, unreasonable or unjust, the Commission is entitled to have regard to the process adopted by the Commissioner, in particular whether the Commissioner had adhered to the procedural requirements laid down by the Act. The Commissioner is not relevantly at large in the exercise of his discretion . Following the principles stated by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd , the discretion conferred by statute is intended to be exercised according to rules of reason and justice, not according to private opinion. The discretion must be exercised according to law and within the limits with which an honest man, competent to discharge the duties of his office ought to confine himself. The Commission should, according to the approach in Bigg (No.2) and Oswald (No. 2) , also assess whether the Commissioner had considered all the information and materials available both in favour and against the officer, as well as the process adopted by the Commissioner in ascribing weight to particular facts or materials. It is open to the Commission to consider whether the decision of the Commissioner was "uninformed" ( Oswald (No. 2) at 66) in the sense that it was not based upon a consideration of all the evidence or the conclusions drawn were not reasonably open to the Commissioner.

195 As was said by the Full Bench in Bigg (No. 2) , the Commission should consider, to the extent relevant in a matter, both the procedure employed by the Commissioner in seeking to remove the police officer as well as the merits or substance of the decision.

196 In the first place, the fairness of the process adopted by the Commissioner, and particularly whether the Commissioner adhered to the procedural requirements of s181D, are vital considerations in determining whether the removal of an officer was harsh, unreasonable or unjust. In Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 389, the Full Bench stated: 'We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of "an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss" or a failure to afford procedural fairness which causes a "substantial and irrevocable prejudice to the employee" will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust.'

Further, the Full Bench stated (at 390): 'While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust.'

198 These comments were supported in Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 at 50.

199 Whilst the Commission is required to consider the entire circumstances of each case (see the decision of the Full Bench in Newton (No. 2) at 79) and it will not be every failure to adhere to the procedures specified by the Act which will require the Commission's intervention (see Bigg (No. 2) at 460), a failure by the Commissioner to exercise his power in a manner consistent with that discussed in Bigg (No. 2) and Oswald (No. 2) or, more specifically, with the requirements of s181D(3) is a matter of significant gravity which may well constitute, in an appropriate case, the basis for a determination that the dismissal was harsh, unreasonable or unjust. As was observed by the Full Bench in Bigg (No. 2) (in relation to the former legislative scheme) (at 458): 'However, it seems to us that where extraordinary powers and authorities such as those given by s 181B are being exercised, a careful and punctilious regard to correct procedure should supervise the exercise of discretion.'

200 I consider that these observations are equally applicable to the exercise of the Commissioner's discretion under s181D of the Act. (emphasis added)" (Citation of authorities has been omitted.) Notice to the applicant 9 By s 181D(3) of the Act, it is a precondition to the making of an order removing a police officer that three steps must be taken. This sub-section assumed some significance during the course of the proceedings and I shall return to its provisions later in these reasons for judgment. For present purposes, it is necessary to refer to a Notice given to the applicant by the respondent dated 15 November 2007 which sets out the grounds on which the respondent did not have confidence in the applicant's suitability to continue as a police officer as referred to in s 181D(3)(a). That Notice contained two allegations. The first was said to be a "failure to demonstrate the standards of performance, conduct, integrity and competency expected of a police officer, and failure to meet the requirements of the Remedial Performance Plan and Commissioner's Warning Notice." There then followed some material that, it may be assumed, was intended to set out the factual basis for the establishment of that allegation. The allegation appears to me to be framed in a composite generalised fashion. On analysis, there is a reference to "performance, conduct, integrity and competency". There is also an allegation of a failure to meet the requirements of a Remedial Performance Program ("RPP") and there is reference also to a Warning Notice. 10 Because of the generalised nature of the allegations and its lack of specificity, I set out hereunder verbatim the factual material which is referred to in the Notice. " C@tsi P0400595

During 2004, a number of issues were identified regarding your performance, specifically in the areas of record keeping, case management, teamwork and criminal investigation.

On 22 November 2004, you were served with a Commander's Warning Notice in relation to certain issues. The Commander's Warning Notice made it clear that: 'You should clearly understand that continued unsatisfactory conduct and/or performance of duties may result in further management action, which may entail consideration of reviewable action under section 173(2) of the Police Act 1990, or removal under section 181D of the Police Act 1990'

On 24 January 2005, you were placed on a Remedial Performance Program (RPP).

It is alleged that, during the period 1 February 2005 to 27 February 2007, you engaged in a continued pattern of inappropriate and unprofessional behaviour and conduct, as documented in the attached Commissioner's Confidence Submission.

It is also alleged that you have failed, over a lengthy period, to demonstrate the standards of conduct, performance and competence expected of a police officer and outlined in your RPP, including in relation to record keeping, teamwork skills, technical and professional skills in the area of criminal investigation and prosecution, customer service, decision making, and planning and organisation/work management.

I consider there are grounds on which it could be concluded that you have failed, over a lengthy period, to demonstrate the standards of conduct, performance and competence expected of a police officer and outlined in your RPP, including in relation to record keeping, teamwork skills and technical and professional skills in the area of criminal investigation and prosecution.

I also consider that there are grounds on which it could be concluded that you have failed, over a lengthy period, to demonstrate the Investigator Practitioner Competencies set out in JSR4. These include: · Technical Professional Knowledge · Decision Making · Teamwork/Collaboration · Customer Service · Planning & Organising/Work Management

I also consider that there are grounds on which it could be concluded that you have demonstrated an unwillingness, or inability, to improve your performance, conduct, and competence to required levels, and that you have, over a lengthy period, displayed conduct and attitude inconsistent with an ongoing career in policing.

On this basis, there appear to be ground on which it could be concluded that you have failed to meet the standards set by the NSW Police Code of Conduct and Ethics - 'Professional Competency and Development' (as in operation until October 2006) and the NSW Police Code of Conduct and Ethics - 'Statement of Values' and 'Standards of Professional Conduct' (as applying from October 2006 onwards).

The NSW Police Code of Conduct and Ethics - 'Professional Competency and Development' (as in operation until October 2006) stated:" 'Professional competency and development

The New South Wales Police is responsible for the training and development needs of its officers. Your (sic) are responsible for maintaining your professional competency and development. Although New South Wales Police recognises honest mistakes do happen, you should not act outside your level of competency and authority. If practicable, you have a duty to consult your colleagues or supervisors if in doubt about how you should exercise delegated powers or fulfilled duties .'

The NSW Police Code of Conduct and Ethics - 'Statement of Values' (as applying from October 2006 onwards) provides for the following values: · Excellence - Having the highest professional standards and integrity · Trust - promoting community faith and confidence in their police · Accountability - acknowledging ownership and being answerable for your actions · Leadership - acting as a role model for the community and your colleagues

The NSW Police Code of Conduct and Ethics - ' Standards of Professional Conduct' (as applying from October 2006 onwards) states: ' An employee of the New South Wales Police must: 2. act with care and diligence when on duty ... 4. treat everyone with respect, courtesy and fairness 5. comply with any lawful and reasonable direction given by someone in the New South Wales Police who has authority to give the direction …'

There also appear to be grounds on which it could be concluded that you did not display the highest standards of integrity in the manner in which you completed the records for your work on 10 March 2005 without initially recording yourself as having taken T.O.I.L.

On this basis, there appear to be grounds on which it could be concluded that you have breached the NSW Police Code of Conduct and Ethics - 'Statement of Values' (as in force at the relevant time). It stated: ' Each member of the New South Wales Police is to act in a manner which: · Places integrity above all…' 11 The second allegation is entitled "Unauthorised Secondary Employment." The factual material alleges that the applicant applied for secondary employment on 29 March 2007, which was declined on 6 July 2007. The applicant engaged in secondary employment between 4 June 2007 and 6 July 2007, which was unauthorised. 12 There was annexed to that Notice a "submission" which the respondent said he had read and taken into account in issuing the Notice to her. The submission was said to augment the matters referred to in the Notice and that any response should take into account the material in that submission. (This document was referred to in the proceedings as the Commissioner's Confidence Submission). 13 The submission is contained within a ring-back folder. The material with respect to the first allegation is contained within 38 tabs and with respect to the second allegation 13 tabs. Including the tabs themselves, the material is approximately 3.5cms in thickness. There are 223 pages of material in all. 14 After service of the Notice and the accompanying submission, there was correspondence between solicitors acting for the applicant and the Commissioner's office seeking further documents and seeking an extension of time in which the applicant might respond. A number of extensions of time were granted by the Commissioner's office, the last extension expiring on 16 April 2008. On 17 April 2008, the applicant's solicitor requested a further two days to respond, that is until 18 April 2008. On that day, the Commissioner considered the Notice and the attached submission and determined that he had lost confidence in the applicant and directed that an order be prepared removing her from the police force. Before the order was prepared and signed, the applicant's solicitor provided a detailed written response to the Notice which was received by the Commissioner's office on 21 April 2008. The order removing the applicant from the police force was signed by the Commissioner on 24 April 2008. 15 After receipt of correspondence from the applicant's solicitors requesting that the order be revoked, an officer within the Commissioner's Professional Standards Command prepared a memorandum to the Commissioner recommending that he consider the submission made by the applicant's solicitor on behalf of the applicant and determine whether he wished to revoke the previous removal order dated 24 April 2008. The recommendation together with the original Notice and the attached submission was considered by the Commissioner on 1 May 2008. The Commissioner wrote on the foot of the recommendation document: "I have taken into consideration the attached response from this officer. Order to stand." This was then dated 1 May 2008. 16 I should add for completeness that the applicant's response to the Notice consisted of lengthy written submissions containing altogether 254 paragraphs of closely typed material. Those submissions dealt in great detail with the large number of incidents that were referred to in the Commissioner's submission document. The applicant's submissions also contained attachments in the nature of medical reports, character references and the like. 17 The Commissioner's order removing the applicant from the police force, consequent upon the decision made by him on 1 May 2008, was signed on 15 May 2008. 18 It was common ground in these proceedings that the order of removal that was the subject matter of the applicant's application to this Court was that signed by the Commissioner on 15 May 2008. Both parties submitted that the determination made by the Commissioner on 1 May 2008 in response to the recommendation that he had received from the Professional Standards Command should be considered as having revoked the earlier order and as having decided to make a new order. This was particularly so in the context of the Commissioner having considered for the first time the response submissions made by the applicant. Although I initially expressed concern to the parties during the course of the proceedings that the decision made by the Commissioner on 1 May 2008 might be construed as a determination to allow the original order to stand and therefore had no effect because the applicant had already been removed by reason of the earlier order, I am persuaded by the submissions made by both parties that the characterisation of what occurred on 1 May 2008 should be to the effect that by implication the earlier order was revoked and a decision was then made to remove the applicant by means of the later order. Compliance with s 181D(3)(a)

19 There is a mandatory requirement to give the police officer a Notice setting out the "grounds" on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer. It is to this Notice that the police officer must be given the opportunity to make written submissions as contemplated by s 181D(3)(b). 20 The word "grounds" should be contrasted with the word "reasons" used in s 181D(4). 21 The applicant complained that the Notice given to her by the Commissioner was inadequate in that the grounds were not sufficiently specified and that this rendered it almost impossible for her to respond. For the Commissioner it was submitted that grounds were set out in the Notice with some specificity, and the applicant, through her solicitors, would be able to ascertain the manner in which each of the allegations were sought to be made by the Commissioner by reference to the material in the Commissioner's submission document. The applicant responded to this by submitting that the Commissioner's submission document made reference to a large number of incidents without assigning to them any particular reason why the Commissioner alleged that they created grounds for her removal. 22 I have earlier set out in [10] the allegations contained within the Notice and the reference contained within the Notice concerning the alleged deficiencies in the applicant's performance and her conduct. These refer by way of "grounds" to record keeping, teamwork skills and technical professional skills. There is also reference to "technical professional knowledge, decision-making, teamwork/collaboration, customer service, planning and organising/work management." Furthermore, there is reference to "…an unwillingness, or inability, to improve your performance, conduct and competence to required levels, and that you have, over a lengthy period, displayed conduct and attitude inconsistent with an ongoing career in policing." Finally, there is material dealing in general terms with "professional competency and development" and "integrity". The applicant complained that it was inappropriate for the Commissioner to have gathered together a large number of incidents and complaints without specifically assigning to each of them whether and to what extent they related or supported each of the "grounds" which are referred to in the Notice. 23 "Grounds" when used in ordinary English language refers to a basis for a belief or for knowledge about something. In the context of s 181D(3)(a), the Notice must set out the basis upon which the Commissioner does not have confidence in the officer's suitability to continue as a police officer. In my opinion, without resort to authority, this must require an officer receiving such a Notice to understand the manner in which and the reason why the Commissioner has lost confidence in his or her suitability to continue as a police officer. If this were not the case, then the officer's ability to make written submissions, as contemplated by s 181D(3)(b), must be severely compromised, as would the consideration of those written submissions by the Commissioner contemplated by s 181D(3)(c). 24 In my opinion, the Notice which was given to the applicant by the Commissioner was defective in the sense that it did not comply with the requirements of s 181D(3)(a). I instance the allegation that "…during the period 1 February 2005 to 27 February 2007, you engaged in a continued pattern of inappropriate and unprofessional behaviour and conduct, as documented in the attached Commissioner's Confidence Submission." The documentation within that submission document, as I have already indicated, refers to a number of incidents which had occurred over a period of time but does not seek to characterise what occurred in those incidents as constituting behaviour and conduct which was either "inappropriate" or "unprofessional". The same observations may be made about the remainder of the grounds including, especially, "…an unwillingness, or inability, to improve your performance, conduct, and competence to required levels, and that you have, over a lengthy period, displayed conduct and attitude inconsistent with an ongoing career in policing." Again, there is no reference in any of the material in the submission document which gives any clue as to which of these matters, some of which are expressed in the alternative, are to be considered in the context of any particular incident or incidents. 25 The Notice mentions on the second page, by reference to JSR4, "customer service". There are no specific factual matters contained in the Notice that refer to customer service. I questioned Mr Searle, counsel for the respondent, about how the applicant would know to respond to an allegation of this kind, set out as a ground in the Notice. His response was that the applicant also had available to her documentation in the Commissioner's Confidence submission which contained all of the factual material and that she could read that and ascertain whether and to what extent there was any allegation concerning customer service. It seems to me that such a response is not consistent with the structure of sub-section (3), which clearly contemplates that a police officer will have a chance to make written submissions with respect to the grounds contained in the Notice. If the grounds are framed in general terms without any specificity, it is impossible, or at least very difficult, for a police officer to know how to respond. This is more so if the factual material can only be ascertained by reading through many pages of documents to decide whether any such factual basis exists for such a ground and, if so, how and to what extent it was considered by the Commissioner when giving the Notice. Such a process would require the applicant to "second guess" what was in the Commissioner's mind. To this extent it is my opinion that the Notice, in that it does not set out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, is deficient. 26 This failure to comply with s 181D(3)(a) taints the totality of the process surrounding the issue of the Notice and the consideration of the matter by the Commissioner when he decided to remove the applicant from the police force. This must, of itself, render the decision unjust. Compliance with s 181D(3)(c)

27 This requires the Commissioner to "take into consideration" any written submissions received from the police officer during a particular period. The period referred to is determined by reference back to s 181D(3)(b) being a period given, that is allowed, by the Commissioner to the police officer in which to make written submissions. 28 The evidence is to the effect that the Commissioner had allowed the applicant's solicitor until 16 April 2008 in which to make any submissions, and the submissions were not received until 21 April 2008. 29 The applicant responded to the Notice by making written submissions dated 21 April 2008. The submissions are lengthy and consist of 254 paragraphs of closely typed material. Those submissions deal in great detail with a large number of incidents which are referred to in the Commissioner's Confidence Submission document. There are also attachments to the applicant's submissions in the nature of medical reports, character references and the like. 30 The requirement that is set out in s 181D(3)(c) is expressed in mandatory terms. Furthermore, the reference to taking something "into consideration" requires, in my opinion, that the contents of the submissions be at the least taken into account before the respondent makes any order under s 181D(1). 31 The provisions of s 181D(3) were considered by Boland J (as his Honour then was) in Hosemans v NSW Police (No 3) [2005] NSWIRComm 161. At [141], his Honour said: 141 Dealing with the last matter first, s 181D(3)(c) requires that the Commissioner must take into consideration the police officer's written submissions. Mr Docking referred to the judgment in Tickner v Chapman (1995) 57 FCR 451 where the Full Court ( Black CJ, Burchett and Kiefel JJ) considered a provision in the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) that required the Minister to consider a report and any attached representations. Of this requirement, Burchett J stated at 476-477: What is it to "consider" material such as a report or representations? In my opinion, the Minister is required to apply his own mind to the issues raised by these documents. To do that, he must obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances. Although he cannot delegate his function and duty under s 10, he can be assisted in ascertaining the facts and contentions contained in the material. But he must ascertain them. He cannot simply rely on an assessment of their worth made by others: cf. Jeffs v. New Zealand Dairy Production and Marketing Board (1967) 1 AC 551 at 568-569. It is his task to evaluate them, a task he can only perform after he knows what they actually are. In a case involving a board which had a duty to "consider" a report, Laskin J, speaking for the Supreme Court of Canada, said: "Certainly, the board must have the report before it": Walters v Essex County Board of Education (1973) 38 DLR (3d) 693 at 697. When Gibbs CJ in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 30-31 conceded that the Minister, in the circumstances of that case, was not obliged "to read for himself all the relevant papers", and that it "would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department", he also made it plain that the summary must "bring to his attention" all material facts "which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial". That was in the context of legislation expressly empowering the Minister, as Mason J pointed out at 46, to delegate his powers and to refer matters to another authority.

In Minister for Aboriginal Affairs v Peko-Wallsend Limited, Mason J (at 44-45) reasoned from an obligation, implicit in the subject-matter scope and purpose of an Act, to take account of detriment to individuals, that the Minister's "consideration of that factor must be based on the most recent and accurate information that the Minister has at hand". He then said that this conclusion was "all the more compelling when the decision in question is one which may adversely affect a party's interests or legitimate expectations by exposing him to new hazard or new jeopardy." And he went on to refer to specific provision made by the statute to ensure that the views of affected persons should be brought to the Minister's attention. Similarly here, the Act provides a mechanism by which the representations must go before the Minister himself. Not by implication, but expressly, it requires the Minister to consider those representations. As in the case Mason J was considering, the decision in question is one which may adversely affect interests and legitimate expectations - indeed it may do so even more directly - and the inference that the representations cannot be left out of account, to be replaced by an assistant's vague evaluation of the extent to which appropriate conclusions about them are contained in a report, is at least equally compelling. If what I have written seems to impose a heavy burden on the Minister, it is necessary to emphasise that Parliament imposed this burden. Doubtless it did so because of the very great power to override the major interests and rights of citizens, and also governmental agencies, which is involved. Such an authority was not to be conferred on a public servant or ministerial assistant. It is a vast power, which Parliament plainly intended to be exercised at the highest level, with the restraint that great responsibility imposes. That indeed restraint was very much part of the legislative intention is made clear by ss. 7 and 13. The special nature of the power, and the severe consequences of its application, also suggest that its exercise would not have been seen as a common or ordinary task … 32 The observations by his Honour and the authorities extracted by him complement the definition of "consider" as contained within the Oxford English Dictionary online definition, namely: "to look at closely, examine, contemplate…". Accordingly, in order to comply with the statutory requirement imposed by s 181D(3), the Commissioner was required to not only have regard to the response made by the applicant, but also to look at that material closely, to examine it and to reflect on what was said by the applicant. 33 It was agreed between the parties that the Commission should assume for the purpose of these proceedings that the consideration of the applicant's written submissions under s 181D(3)(c) was undertaken by the Commissioner of Police personally within a period of one hour. Within the same period of one hour the Commissioner also considered and dealt with the response submissions of three other police officers. The material that the Commissioner considered with respect to those three other officers was tendered into evidence. The three submissions with respect to the three other officers consisted in total of 41 pages together with 100 pages of attachments. The applicant's submission consisted of 41 pages together with 28 pages of attachments. I should emphasise that this material contains only the submissions made by each of the police officers. It does not include any of the Commissioner's Confidence Submission documents which were relevant for the purpose of those proceedings. It may be deduced that the Commissioner had previously read the Commissioner's Confidence Submission documents with respect to each of the four officers for the purpose of determining to issue a Notice to each of them as required by s 181D(3). In my opinion, having regard to the material in the response submissions made by each of the four officers, it would be necessary in carefully considering them to refer back to the original material in the Commissioner's Confidence Submission documents. Whilst I have not seen those documents with respect to the other three officers, the Commissioner's Confidence Submission documents with respect to the applicant are voluminous and consist of 223 pages. It might be inferred that even though some of the details concerning each of the four officers had been retained by the Commissioner in his memory, a careful evaluation of the response submissions would require some recourse to the original documentation which formed the basis of the reasons set out in each of the s 181D(3) Notices. In approaching this matter, I shall, however, ignore the material contained in the Commissioner's Confidence Submission documents, including the reasons for the issue of the Notice set out therein. In my opinion, having regard to the totality of the material contained in the four bundles of response submissions made by each of the four officers, it would be impossible for any person to have read, absorbed and "considered" that material within a period of one hour. Furthermore, it is impossible to read the applicant's submissions in these proceedings without referring back to much of the material in the Commissioner's own submission document. This is because of the detailed references contained within the applicant's submissions to parts of that material. 34 The respondent made an order under s 181D(1) of the Act on 15 May 2008 in which he determined to remove the applicant from the New South Wales Police Force. The document which embodied that order said in part: "In reaching my decision, I have carefully considered the matters raised in the submission prepared in relation to you and the Notice served upon you pursuant to s 181D(3)(a)…I have also taken into account your written response provided by your legal representative." 35 In my opinion, having regard to the volume, nature and content of the material and having regard to the other matters considered by the respondent within the period of one hour, which the respondent allocated for this purpose, I conclude that the respondent could not have considered the matters contained within the applicant's submission in conjunction with the Commissioner's own submission documents in any meaningful manner, let alone one which could be described as having been attended to "carefully". 36 To this extent, and for this reason, I conclude that the order made by the respondent is fundamentally flawed. In these circumstances, it is harsh, unjust and unreasonable that the order which the respondent purported to make should be considered as having an effect removing the applicant from the police force. (I deliberately refrain from making any finding about whether in law it is a nullity.) The factual background 37 It is now necessary to have regard to some of the evidentiary material adduced in the proceedings. This material was said by the applicant to be relevant, firstly, to whether she is entitled to relief and, secondly, the nature of that relief. As will be clear, most of this evidence is contained within the material considered by the Commissioner when determining to remove the applicant. 38 The applicant was aged 57 as at September 2008. She joined the New South Wales Police Force in May 1997 and became a designated detective on 21 October 2002. No complaint was made about her conduct or performance in the police force until 2004 after she had been transferred as a detective to the Burwood Local Area Command. Whilst at Burwood, the applicant was issued with a Commissioner's Warning Notice and was placed under a RPP. The Warning Notice issued on 22 November 2004 arose out of allegations of unsatisfactory conduct on two occasions and findings that had been made against her as a result of investigations into those matters. 39 The first concerned the circumstances in which the applicant had adopted an interview for another police officer. She had given contradictory evidence about those circumstances which involved a breach of police procedures. 40 The next matter concerned information which the applicant had given to an investigating police officer arising out of an infringement notice that had been issued with respect to a police vehicle which had exceeded the speed limit on 8 May 2003. Information made available for the purpose of these proceedings, but which was not available to the Commissioner, consisted of a report into this incident by Acting Inspector Coffen dated 30 July 2004. It seems that there were no positive means available to identify who it was that drove the police vehicle on the day in question and at the time that the infringement notice referred to. The applicant was interviewed about the incident more than 12 months after it occurred. Acting Inspector Coffen concluded that it was likely that if a prosecution had been instituted against the applicant "an acquittal was more probable than not." Despite this, on the basis of all of the information gathered by Acting Inspector Coffen, he formed the opinion that there was "a high probability" that the applicant was driving the vehicle at the time. He relied on inconsistencies in information furnished by the applicant, on the fact that she had failed to complete a duty book immediately after the day's duties and that, in his opinion, the explanations given by the applicant as to where she was at the time of the incident and where she had been on the morning of the incident were not plausible or attracted considerable doubt. 41 It was submitted for the applicant that the conclusion reached by acting Inspector Coffen was logically flawed in that any inconsistencies which he found in information furnished by the applicant and the other matters set out did not necessarily result in a finding that it was the applicant who was the driver on the relevant day. Furthermore, the applicant relied on material which was produced during the course of the hearing of these proceedings which indicated firstly that if any "reviewable action" had been taken by the Police Service against the applicant as a result of this incident, advice had been given by the "legal services representative at the IRP" that "any reviewable action would be seen as harsh and unreasonable at the IRC." Furthermore, there was a file note produced by the Police Service indicating that there were "evidentiary deficiencies in investigation" about this matter. 42 As I have said, none of this material which the applicant asserted must cast some doubt upon one of the bases upon which the Warning Notice was issued was put before the Commissioner for consideration by him when determining to remove the applicant from the Police Service. 43 The final paragraph of the Warning Notice said: "You should clearly understand that continued unsatisfactory conduct and/or performance duties may result in further management action, which may entail consideration of reviewable action under s 173(2), Police Act 1990, or removal under s 181D, Police Act 1990." 44 There was a notation, presumably in the handwriting of Superintendent Burn, the Commander of the Burwood Local Area Command, to the effect that the applicant had "declined to sign for this document. She acknowledged the contents and implication. She understands her position with regard to possible further management action." 45 One of the reasons given by the Commissioner in deciding to remove the applicant from the police force was the fact that she had "declined to sign for this document" whilst acknowledging, however, its contents and the implications for her. 46 The applicant had been stationed at Hornsby between April and December 2004. Immediately before leaving that station, the applicant had received an email from now Assistant Commissioner Peter Gallagher which said, "Sorry I missed you mate. All the best for your future career. If you need any help or advice, please don't hesitate to call me. Thank you for your help to all my police, especially my young police. Pete." 47 Whilst at Hornsby, the applicant was advised that because of the findings made in the Commissioner's Warning Notice she was required to undertake an RPP and that she would be stationed at Burwood while this occurred. The applicant protested because of difficulties that she had encountered with certain officers at Burwood, after she had been transferred to that Local Area Command as a detective. These were said by her to have arisen as a result of an incident which occurred in July 1997 when she alleged that a fellow police officer had engaged in corrupt conduct. Her allegations were dealt with by the Police Integrity Commission, which recommended that the officer concerned be prosecuted. The applicant asserted that no prosecution was ever instituted. The fact that she had made allegations against the officer was, it was said by the applicant, brought to her attention by certain police officers when she was initially transferred to Burwood. Other allegations were made by the applicant with respect to other conduct of police officers at Burwood while she was stationed there. The Remedial Performance Program ("RPP") 48 Presumably as a result of her representations, the applicant was transferred to Chatswood Police Station within the North Shore Local Area Command and arrangements were made for her to undertake the RPP. Detective Sergeant Evatt was designated as the applicant's mentor whilst undergoing the program. 49 The applicant was presented with the RPP in writing whilst at Chatswood. The document stated that the Program would commence on 24 January 2005 and would have a 6-months' duration and that the reviewing officer was Detective Inspector Jubelin. The aim of the Program, as stated in the document, was to improve the applicant's performance "in the areas of record keeping, teamwork and technical and professional knowledge in regard to criminal investigation and prosecution." 50 The document set out by way of background the fact that there had been a number of "issues" concerning the applicant during 2004, specifically in the areas of record keeping, case-management, teamwork and criminal investigation. It referred to meetings in October and November 2004 where these issues had been discussed. 51 A number of strategies were set out in the Program document. It was noted that the applicant would be assigned to Detective Sergeant Evatt as a mentor who would meet with her weekly "to provide feedback regarding her current performance, assess the officer's current workload, progress and provide support for the officer on an ongoing basis." The mentor was to provide the Local Area Commander with monthly written feedback. A second strategy was a requirement for the applicant to produce her completed duty book entries and other material to the "Investigations Manager" on a weekly basis, which would then be reported to the mentor who would provide feedback. A third strategy required the applicant to "provide all briefs of evidence to the Investigations Manager who will act as the brief handling manager for review prior to the time of service." A fourth strategy was the placement of the applicant in Detective Sergeant Evatt's team within the detectives' office, to review "her ability to work effectively with the team to accomplish workplace goals." 52 A series of "outcomes" were set out with respect to each of the strategies. 53 The document included a warning that failure to complete the outcomes as described might lead to action being taken against her including her removal under s 181D. 54 The applicant was required to sign the Program as having received, read and concurred with the contents of the document. She declined to do so, explaining in a memorandum that she did not concur with its contents. That memorandum contained a lengthy recitation about the applicant's "rights" as a police officer which traversed a number of matters, about which she complained, which occurred during her period as a police officer. The fact that the applicant declined to sign the document was a ground noted by the Commissioner in his Statement of Reasons for her removal. The Statement of Reasons for removal (continued) 55 After referring to this matter, the Statement of Reasons then sets out a number of general allegations without any seeming reference to any particular incident. I shall endeavour to summarise them as follows: 1. The applicant engaged in a "continued pattern of inappropriate and unprofessional behaviour and conduct" during the period 1 February 2005 to 27 February 2007. 2. That "over a lengthy period" the applicant continued to fail to demonstrate "the standards of conduct, performance and competence expected of a police officer…" with particular reference to "record keeping, teamwork skills, technical and professional skills in the area of criminal investigation and prosecution, customer service, decision-making, and planning and organisation/work management." 3. A failure "over a lengthy period" to demonstrate certain competencies related to an investigator, namely "technical professional knowledge, decision-making, teamwork/collaboration, customer service, planning and organising/work management." 4. A demonstrated "unwillingness or inability, to improve your performance, conduct and competence". 5. A failure to meet certain standards described in a police code of conduct and ethics but with no more specific description. The TOIL incident 56 There then follows as a reason a failure to display "the highest standards of integrity" in the manner in which the applicant completed a work record on 10 March 2005 "by not initially recording yourself as having taken TOIL." (Time off in lieu). 57 The only reference to this in the Commissioner's Confidence Submission is an unattributed note relating to the applicant's record keeping. It says, "Following her appointment PMO (Police Medical Officer) on 10/3/05 she requested 1.5 hours TOIL while she was in the city to undertake non-police duties. The time agreed upon was between 11am to 12.30pm. Whilst checking her duty book on 15/3/05 I observed she had recorded her mealtime as 12MD to 12.30pm. I reminded her the mealtime she had recorded was in her TOIL period and she had in fact had lunch when she returned to the office about 1.30pm." 58 It transpired in evidence given in the proceedings that the author of that note was Detective Sergeant Williams who at the time was the Investigations Manager. The memorandum was a note which he had prepared for Detective Sergeant Evatt. Detective Sergeant Williams gave evidence. In cross-examination, he said that time taken in travel between the Chatswood Police Station and the city on police business would count as time worked and would not count as time off in lieu. Detective Sergeant Williams agreed that, taking into account travel time, it is possible that the applicant ate her lunch whilst on the train and that time off in lieu would have ended at 12.15. It was the opinion of Detective Sergeant Williams that there was no dishonest intention on the part of the applicant in recording the wrong time, and it was a simple matter of incorrect time recording. Detective Inspector Jubelin expressed the same opinion in his evidence to the Commission. 59 It was submitted on behalf of the applicant that in these circumstances, this incident could not justify a failure to display "the highest standard of integrity" as asserted by the Commissioner in his reasons for removal of the applicant as a police officer. I agree. The RPP and Detective Sergeant Evatt 60 The Commissioner's reasons then deal with "evidence of poor performance" and "the comprehensive account…about your failure to meet the requirements of the performance agreement" given in each case by Detective Sergeant Evatt. 61 Detective Sergeant Evatt gave evidence in the proceedings. He said that over a three-month period, whilst he was the applicant's mentor between early February 2005 and 6 April 2005, there was a persistent failure on the part of the applicant to meet the outcomes in the RPP with respect to five particular areas. 62 The first area was a failure to ensure that he, as her mentor, was kept fully informed about her work commitments. He described the applicant as "initially reluctant to provide any details at all" and when provided they were "incomplete" or "misleading". This precluded Detective Sergeant Evatt's ability to assess the applicant's workload and progress and to provide support to her on an ongoing basis. 63 Handwritten notes made by Detective Sergeant Evatt indicate that he met with the applicant on 1 February 2005 at about 8.15am. She mentioned a number of specific matters with which she was involved. He asked her to supply a list of those matters which had not originated in the North Shore LAC together with court matters and any matters requiring her involvement with any court dates, outstanding actions and any other commitments. 64 Handwritten notes made by Detective Sergeant Evatt on 8 February 2005 indicate that he again asked the applicant for these details and he repeated this request when he met her two days later. At about 8.40am that day, the applicant gave him a typed list of her work commitments and complained that she was being over-scrutinised by reason of the RPP. Detective Sergeant Evatt noted that the applicant commenced crying. His handwritten notes reveal that he reassured her that he would manage her in no different way than other staff and that he would treat her as part of his normal team. 65 After discussing a number of matters, Detective Sergeant Evatt asked that the applicant prepare a spreadsheet detailing her workload matters. He noted that she appeared "dismissive" of his request. 66 In his handwritten notes, Detective Sergeant Evatt foresaw a difficulty in managing the applicant by reason of her reluctance to accept guidance and advice. He felt that if this were offered to her she would interpret it as an indication of some inadequacy. Her reluctance to accept advice created the need to be "stern when highlighting the necessity to complete a task." 67 This perception on the part of Detective Sergeant Evatt may have influenced the manner in which he dealt with the applicant thereafter. Certainly, it was the applicant's complaint that Detective Sergeant Evatt bullied and harassed her both in his supervisory role and in connection with the implementation of the program. 68 Detective Sergeant Evatt produced his first monthly review report on 28 February 2005. In that report, he first noted the delay in the applicant furnishing a list of work commitments and the explanation given by the applicant for the delay in that she needed to obtain details of outstanding court dates before completing the list. Detective Sergeant Evatt concluded that the list, which was eventually supplied, contained minimal details, that the applicant was "dismissive and defensive" and reluctant to comply. He further observed that the applicant appeared to be "reluctant to accept advice or guidance of supervisors. The officer makes continual reference to past experience and investigations in an apparent attempt to justify her decisions and opinions." 69 However, Detective Sergeant Evatt described the applicant as showing "enthusiasm and motivation." Despite this, he thought that she could "lose direction and be distracted from the task at hand. It would appear that further coaching is required regarding her assessment and prioritisation skills." He gave an example of this. There was also a notation about the applicant becoming defensive "before becoming visually upset and crying" and the applicant's complaint about the level of scrutiny that was being given to her. It was noted that the applicant had completed her duty book regularly and was otherwise attending to her duties. 70 The report comments adversely on the failure of the applicant to obtain statements from a number of witnesses in connection with an upcoming police prosecution. Detective Sergeant Evatt said, "Although the officer has alerted police witnesses by memo, the statements have not been forthcoming." He noted that the applicant had gone off work on sick leave and that he had been required to follow up the preparation of these statements. He said that "more effort could have been made earlier to ensure all these required documents were prepared and available to the defence service." 71 In cross-examination, Detective Sergeant Evatt was taken to extracts from the applicant's duty book which indicated that over a period commencing 21 December 2004, the applicant had regularly attended to the preparation of the brief and the taking of statements. This included contact with relevant police stations at which officers, who were to give statements for the purpose of the proceedings, were working. There was also admitted into evidence internal email communications from the applicant to various police officers exhorting them to ensure that statements were made available for inclusion in the police brief of evidence. Included was a request forwarded on 15 February 2005 to a police officer asking that the statements be prepared and forwarded to the applicant "urgently" pointing out that the brief was required to be served on 1 March 2005. When referred to this material, Detective Sergeant Evatt conceded that the applicant had applied herself to obtaining the necessary statements but said that this was not good enough. In his opinion, the applicant should have approached him and he would have ensured that the recalcitrant police officers would have given their statements by making contact with their supervisors. It appears, however, that at no time did Detective Sergeant Evatt convey this information to the applicant. On the other hand, he said that he had not been made aware by the applicant of the state of the matter and that therefore there was no need for him to so advise her. 72 The applicant submitted that the attitude and expectations of Detective Sergeant Evatt with respect to this matter were unreasonable and reflected his approach to his mentoring role and the manner in which he would judge the applicant's performance. In reviewing this aspect of the matter, I take into account on the one hand that the applicant appears to have conducted herself assiduously and persistently to ensuring that the statements were obtained; on the other hand Detective Sergeant Evatt felt justified in criticising her for not bringing the problem to his attention so that he could deal with it. Of course, in normal circumstances an employee and his or her supervisor are able to discuss work problems freely and without constraint, and a period of sick leave would not intrude on the execution of a task. There must be some doubt whether even at this early stage the relationship between Detective Sergeant Evatt and the applicant was such that it would permit of constructive discussion about the execution of various work tasks. 73 Detective Sergeant Evatt's second monthly report is dated 29 March 2005. It opened by referring to the fact that the applicant had been on restricted duties throughout the month but has retained some work responsibilities. 74 The report then referred to an incident on 1 March 2005. The applicant had approached Detective Sergeant Evatt as her mentor requesting advice about a matter and he had ventured an opinion about it, which was contrary to her view. He noted that her response in turn was "indignant, dismissive and aggressive, and she demanded that she be given respect, considering her experience." There was a further meeting on 2 March 2005 initiated by the applicant who sought advice about ensuring acceptance of her by other officers working in the police station and a discussion ensued. 75 On 7 March 2005, during the course of a weekly meeting discussing the applicant's current matters, she informed Detective Sergeant Evatt that she had an aggravated sexual assault matter "on my plate". When questioned, the applicant advised him that her involvement consisted of a requirement to supply a statement as a witness, and that she did not have carriage of the matter. He said in the report that "the officer showed great indignation and appeared aggressively resentful at being queried about this matter. It has become necessary, as her supervisor, to examine all information supplied by the officer to establish its veracity." 76 It is clear from Detective Sergeant Evatt's report and confirmed by him in evidence that he regarded the applicant as being untruthful when she referred to that particular matter as being "on my plate" in terms of her involvement. The applicant's evidence was that she was merely conveying to Detective Sergeant Evatt the fact that she had an involvement in the matter by using these words. In evidence, Detective Inspector Yeomans, who also worked in the same command, confirmed that the applicant's understanding of what was meant by this phrase was his own understanding. 77 I am unable to determine the extent to which these incidents affected Detective Sergeant Evatt's views and opinion about the applicant. They provide examples, albeit perhaps isolated, which are indicative of the emergence of views about the applicant held by Detective Sergeant Evatt that were not favourable to her. 78 Detective Sergeant Evatt's report then refers to the fact that he was away from the command during the week commencing 14 March 2005 and the applicant's weekly meeting during this period was conducted by Detective Sergeant Williams. The report notes a number of issues raised by Detective Sergeant Williams with the applicant that called for comment by Detective Sergeant Evatt. These included an opinion expressed by the applicant concerning the investigation of a fraud matter, the fact that the applicant had left some of her appointments at home, that she had failed to update certain contact details, that she had had an emotional outburst whilst discussing a matter with another officer and that there had been some inaccuracies in the recording of her times and duties in her duty book. 79 It appears that the record keeping matter referred to by Detective Sergeant Williams is the TOIL issue to which I have previously referred. In terms of the second last matter, namely the difference of opinion and emotional outburst with another officer, Detective Sergeant Williams, in his evidence, noted that the applicant had apologised to the other officer and as far as he was concerned that was the end of the matter. 80 However, there is one matter which is referred to in a report which Detective Sergeant Williams had provided to Detective Sergeant Evatt and which is not in the Commissioner's Submission document and was therefore not relied upon by the Commissioner in determining to remove the applicant from the police force. I refer to this matter because I am of the opinion that it has some significance, not in connection with the removal aspect of the proceedings, but in connection with what relief ought to be afforded to the applicant. The memo says: "Staff are now in the habit of making prank phone calls to 'save' the person who has become involved in lengthy discussions with her (that is, the applicant) during which she continually rambles on from one subject to another." I shall return to this aspect later in these reasons for decision. 81 According to the report of Detective Sergeant Evatt, the next weekly meeting was held on 22 March 2005 at which Detective Sergeant Williams was also present. This meeting discussed the issues previously raised by Detective Sergeant Williams, which I have summarised above. In particular, there seems to have been a detailed discussion about the applicant's difference of opinion with another officer. In describing the discussion that occurred at this meeting, Detective Sergeant Evatt said that the applicant "became aggressively sarcastic, and at times emotional." In her submission to the Commissioner, the applicant alleged that Detective Sergeant Evatt had "badgered me for about 20 minutes in an endeavour to have me say that I was completely at fault. I refused. I eventually walked out of the meeting in tears…" 82 This report of Detective Sergeant Evatt concluded by stating that at that stage he had concerns about the applicant's ability to comply with the RPP. He referred to her behaviour towards other members of staff and supervisors, her "propensity to make questionable judgments" justified by reference to her prior experience and the difficulty that he was having in communicating with her. He said, "It appears that she is not prepared or unable to adjust her attitude towards other staff members, and continues to overtly demand respect whenever conversing with them. It would appear that this is beginning to have an effect on other staff, particularly in their relationship with the other officer. This conflict does not exist between any other members of staff." 83 As is patently clear, the relationship between Detective Sergeant Evatt and the applicant was rapidly deteriorating. The applicant, in her evidence and in her submission to the Commissioner, accused Detective Sergeant Evatt of harassing her to such an extent that she was emotionally unable to deal with him. As will be seen, there is no doubt that the applicant was unable to cope in her dealings with Detective Sergeant Evatt, as was readily apparent to a number of officers working in the Command, including those at the highest level. 84 Whether and to what extent the reason for the applicant's difficulty in coping emotionally at that stage can be attributed to Detective Sergeant Evatt is not clear. In a written joint statement dated 15 March 2006, Detective Sergeants Andrew Birch and Gary Williams referred to a conversation between Detective Sergeant Evatt and the applicant which had occurred the previous day. They referred to "constructive comments" made by Detective Sergeant Evatt to the applicant and the fact that he "spoke in a controlled manner focussing on the issue being discussed." They said that "It was apparent by the body language and the tone and dismissive responses that (the applicant) gave in reply to comments that she did not digest the advice given, and in fact was dismissive to any suggestions that she could have improved on the way she had obtained the statements." That joint statement was contained within the Commissioner's Confidence Submission. 85 The next monthly report from Detective Sergeant Evatt was dated 2 May 2005. It reports an incident on 1 April 2005 stating that the applicant left the police station to attend an office in the Mandarin Centre, Chatswood in order to pick up a brief of evidence and other documents. It is alleged that the applicant's supervisor, Detective Acting Sergeant Burns, had informed the applicant that before leaving the police station, she should have made contact to ensure that someone would be there to make the documents available. The applicant was then observed by the Commander of the Local Area Command returning to the office carrying a large parcel at about 10.45am. The Commander asked the applicant's supervisor to discuss the matter with her. 86 There is also a reference in the report to enquiries being made at about 2.15pm by the applicant's supervisor concerning her whereabouts. The applicant had informed her supervisor that she was going to lunch at 1pm that day. She was seen walking into the station at about 2.30pm indicating that she had been shopping. 87 Detective Acting Sergeant Burns spoke to the applicant at 3pm that day about both of these incidents. The report states that the applicant became "emotional and a little teary" before referring with anger to the police force endeavouring to get rid of her. The applicant is alleged to have threatened that she would "get even" and that she would seek her personal file. 88 On 5 April 2005, the applicant was spoken to by the Commander concerning her request to access her personal file and concerning also the incident that had occurred on 1 April. The report of Detective Sergeant Evans indicated that he was present at that meeting and he described the applicant as continually endeavouring to interrupt the Commander while she was speaking and as being "visibly contemptuous and dismissive towards the Commander by huffing and sighing as she was spoken to." The applicant was reported to have denied having gone shopping. 89 The report also notes that the applicant's duty book states that when she returned from the office at the Mandarin Centre, she had a telephone conversation with her supervisor informing him that the office had been unattended. Her supervisor denied having received such a telephone call. 90 The report made specific mention of the applicant's poor record keeping in her duty book, her untruthful recording of some of the matters associated with the incidents and her lack of teamwork skills manifested by her derogatory comments about the staff generally and her interrelationship with the Local Area Commander. 91 A file note of Superintendent Cruickshank, the Local Area Commander, dated 5 April 2005, is included within the Commissioner's Confidence Submission documents. It refers in much greater detail to the incidents contained within Detective Sergeant Evatt's report of 2 May 2005, to which I have referred above. Relevantly, the file note of Superintendent Cruickshank, when referring to their discussion of 5 April 2005, says in part: "I explained that I wished to speak to her and advise her of my concerns and that she would have the opportunity to respond when I had finished - however, she kept interrupting as she normally does". Later in the file note, Superintendent Cruickshank said: "Throughout the discussion, Reid-Frost was most defensive, aggressive, argumentative and appeared to be trying to push the blame of her actions onto others, or not take responsibility for her own actions. At the completion of the discussion, I formed the view that Reid-Frost had been misleading in her information and avoided answering the questions truthfully. The discussion was about 20 minutes' duration…" 92 A different complexion on this matter was provided by the evidence of Detective Senior Constable Burns, who was an acting Sergeant at the time of the incident. During a period of approximately six months, he and another officer had supervised the applicant. He said that although he was unable to comment on the applicant's competency, he had not himself had any issue with the applicant's performance or work as a police officer. Detective Senior Constable Burns also commented about the circumstances in which the incidents of 1 April arose. He thought that the catalyst for what occurred was the fact that the Superintendent had seen the applicant out of her office window and that the applicant had shopping bags with her. He thought that the applicant had been singled out because of the RPP, in which the applicant was then participating. 93 The applicant's counsel sought to question the statement of Superintendent Cruickshank on the basis that she had not been called to give evidence. Detective Sergeant Evatt was present at that meeting and gave evidence in these proceedings. I am not prepared to draw any inference adverse to the interests of the Commissioner because Superintendent Cruickshank was not called to give evidence. 94 It was the evidence of Detective Sergeant Evatt that the applicant went on sick leave on 6 April 2005 and from that time on he ceased to be her mentor under the RPP. When the applicant did return to work, it was on restricted duties and she did not perform the work of a detective. I shall refer to this aspect shortly. The Statement of Reasons for removal (continued) 95 The Commissioner's Statement of Reasons after referring generally to the RPP, contains a number of comments which are critical of the applicant. There is reference to the allegations concerning inadequate preparation of witness statements in February 2005, and to a belief expressed by the applicant that "Detective Sergeant Evatt elevated his involvement in this matter in a contrived attempt to have you appear in bad light." The Reasons then continue: "Throughout your involvement with your mentor while you were on a performance program, I can see no evidence that you fully accepted any guidance or assistance. I believe that your attitude was aggressive, dismissive and you were unable to take advice. Evidence of your dismissive behaviour is also provided by your Commander and other senior officers who sought to assist you." Involvement of Detective Inspector Jubelin 96 There is then a reference to Detective Inspector Jubelin who held a senior position at the North Shore LAC. Relevantly, the Commissioner's Statement of Reasons contains this material: "You continue to dispute the facts provided by Detective Inspector Jubelin in his report to the Police Medical Officer. You state that 'Detective Inspector Jubelin's report is erroneous as to fact and unqualified as to opinion.' In addition to this, you criticise a report provided by Dr Kirby, the Police Medical Officer. You provide that Dr Kirby's report is based on false, misrepresented and erroneous material. I do not believe that the reports from this senior officer and the medical practitioner are misdescriptions and exaggerations of the facts as you described. Your response to my Notice has only provided further evidence of your inability to be consulted or to accept advice and direction. You have failed to comprehend the importance of the Commander's Warning Notice served on you in November 2004 and you have failed to meet the requirements of the Remedial Performance Program." 97 Detective Inspector Gary Jubelin was at the time that the events concerning the applicant occurred the Crime Manager at the North Shore Local Area Command. He had responsibility for the supervision of all staff attached to that Command, which included officers extending beyond the detectives. Detective Inspector Jubelin formulated the RPP that was to be applied to the applicant and appointed Detective Sergeant Evatt as the mentor. It was he who was the Reviewing Officer under the Program. 98 The first reference to Detective Inspector Jubelin's involvement with the applicant as contained in the Commissioner's Confidence Submission is a referral to the New South Wales Police Medical Officer, which he had given on 11 February 2005. The referral document noted that the applicant became very emotional, cried frequently and presented herself in a distressed state when discussing the fact that she had been placed on the RPP. She was given restricted duties on 10 February 2005 and her firearm was secured. In a further referral to Dr Kirby on 23 March 2006, Detective Inspector Jubelin said: "My concerns with my dealings and observations of Alyson is a follows, she demonstrates what appears to be disproportionate emotional response to situations. These emotional outbursts are demonstrated in tears, anger, frustration through body language and words. She has in inability to accept criticism of any of her past actions. She is on a Remedial Performance Program that is not overly onerous, but she refuses to accept she should be on the program in the first place. Alyson also demonstrates what appears to me to be a need to be respected in regards to her policing experience by her work colleagues. This is demonstrated in her frequently talking about what a good police officer she is and talking up the jobs she has been involved in. Alyson's dedication to her work is not in question, however the manner in which she conducts herself is disruptive to her work colleagues. … This is the third referral I have made to the PMO in regards to Alyson. The same issues identified now were identified 12 months ago. This command is seeking a thorough detailed assessment from a police medical officer to determine if the officer is capable of returning to work, the effect it will have on her welfare. What duties she would be capable of carrying out and advise us on how to manage someone like Alyson." 99 A report of Dr W Kirby, the Police Medical Officer, dated 10 March 2005, indicated that there would be a referral to a psychiatrist and a further report would be forthcoming. A report of Dr Kirby dated 9 June 2006 refers to previous advice of 20 May 2006 in which a recommendation had been made that the applicant be placed on restricted duties pending further review. Dr Kirby concluded from a review of certain material, which appears to have been forwarded to him by the Local Area Commander, that the applicant: · "is not able to isolate and control her emotions when challenged · has a need for recognition that inappropriately intrudes into her workplace relationships · reacts with exaggerated emotion to the extent that it affects her policing performance · appears to have a belief in her capabilities that is inappropriately optimistic, maybe unrealistic · has difficulty with authority figures and a workplace hierarchy that she is required to work within · although not untruthful would appear to be selective with her information and the emphasis put on facts" 100 Dr Kirby from his review of what appear to be opinions and reports of health professionals, who are unnamed, expressed the opinion that there was no evidence that the applicant was "delusional or suffers a psychological or psychiatric disorder. Therefore, her behaviour can only be explained on the basis of her personality type." He thought that the applicant's behaviours were "a product of her personality, are deeply ingrained, she does not have the capacity to control them and there is minimal or no chance at this stage that they can be changed by therapy." Dr Kirby recommended that the applicant remain on restricted duties. 101 A number of the referral letters to Dr Kirby were a part of the Commissioner's Confidence Submission material. In particular there is a memorandum from Detective Inspector Jubelin, dated 29 May 2006, to Dr Kirby in which he relates a history of the applicant's placement at North Shore LAC since December 2004. Some of the material contained within this report is repetitive of matters to which I have earlier referred. There are assertions that the applicant was resistant to the RPP, that she was hostile to Detective Sergeant Evatt and distrusted him and that her behaviour, attitude and personality had not only impacted in a negative fashion on the performance of her duties but also on the applicant's work colleagues. 102 In describing the applicant's conduct, Detective Inspector Jubelin has appeared to have relied heavily on observations made by Detective Sergeant Evatt although he does also refer to accounts of the applicant's behaviour provided by other staff. 103 In addition to the general observations made by Detective Inspector Jubelin concerning the applicant's emotional and distressed state, there is specific reference to an incident which occurred on 22 March 2006, when the applicant issued a traffic ticket whilst driving her own private vehicle. Detective Inspector Jubelin said in part: "The manner in which (the applicant) conducted herself on this occasion resulted in the mother of the driver turning up at the police station to ascertain if (the applicant) was really a police officer and enquire about her actions. I raised this issue on the basis that it causes me concern that the day after she displays emotions and aggression to senior officers, she feels the need to demonstrate her powers as a police officer on the way to work." 104 The genesis of this complaint was a report of M Fallon GSO Chatswood, dated 15 June 2006, requested by Detective Inspector Jubelin "for information regarding Senior Constable Reid-Frost." The report was in the following terms: "BACKGROUND: About 11am on 22.3.06 I was working behind the counter in the Chatswood Police Station when a mother and her son walked in. I asked if I could assist them, the male said he was told to come to Chatswood Police Station by a police woman in plain clothes and not in a police vehicle. He said this Police woman had showed her police badge to him through the window of her car. I then went into the muster room to enquire who the police were and was informed there was nobody there, I returned and Senior Constable REID-FROST walked in and said, 'These people are for me'. Senior Constable REID-FROST then told the people to 'wait there', referring to the foyer. COMMENT: Senior Constable REID-FROST left the people at the front desk whilst she changed into her uniform. About 15 minutes later she had not come back to the front desk, so I decided to find her and ask if she had forgotten the people. I found her outside the Police Station, through the external muster room door, having a cup of coffee and a cigarette. She told me she had not forgotten the people waiting in the foyer. About 15 mins after that she came to the front desk and told the male he was getting a ticket for talking on the phone while driving. About another 15 mins later she came out and handed the ticket to the young man they then left. I estimated these people were in the station for at least 45 mins, and were left to wait in the foyer without any explanation by the constable of what was occurring until half an hour after arriving. In my opinion, I would consider the Senior Constable was abrupt in her manner towards this woman and her son, yet they were very polite towards her." 105 The inclusion of this matter in the Commissioner's Confidence Submission documents provides an illustration of the controversy that is at the heart of these proceedings. I have already referred to the reference to this incident within the background documentation provided to the Commissioner for his consideration. I have referred also to the opinion expressed by Detective Inspector Jubelin as to his reaction to the incident and his views about what it revealed concerning the applicant's behaviour and personality. 106 In her written response to the Commissioner, the applicant dealt with this matter in some detail. I set out [186] to [198] of her submission to the Commissioner. "186. I spoke to the young person and told him I would send a ticket to him. I did not tell him or his mother to attend the police station. The young person and his mother came to the station to pick up the ticket because he did not want it being sent in the mail. The vehicle was not his but was actually a company car allocated to his father. He did not want his father to find out or get his father into trouble because he was driving the company car. They disclosed this to me when they attended the station.

My rostered shift did not commence at midday but I was almost an hour early, as was my habit.

I was performing duty in plain clothes and had made a coffee prior to checking the registration of the vehicle ARK 75M on COPS when Ms Fallon asked if I knew anything about the people in the station. I told her they probably wanted me and went out into the station.

I did not say " Wait there ." I had a short conversation with the person and his mother and asked them to take a seat. As you will recall Sir I had recently been sent to general duties from plain clothes. Issuing traffic infringement notices for traffic offences was not something I was used to doing. I sought advice from a sergeant. I completed the traffic infringement notice as quickly as possible, reminding the young person of the dangers of driving a vehicle whilst talking on a mobile phone, issued him with the notice and they left. At all times I spoke in a respectful manner and dealt with the matter expeditiously. All this occurred before the commencement of my rostered shift.

The report of GSO Fallon is dated 15 June 2006, almost 3 months after the alleged incident. It is incorrect in many aspects. In addition to the matters raised above GSO Fallon is in error when she states that I changed into my uniform. I was performing duty in plain clothes. Her estimate of time is very wrong. I was already having a coffee and a cigarette outside the muster room door, on my own time as it was prior to my rostered shift, when she made the initial inquiry as to who the police officer might be who was to deal with the people in the foyer.

I agree that the young person and his mother were polite to me, as I was to them. It is curious to me why an unexceptional event such as me performing my duties by issuing a traffic infringement notice should be the subject of a formal investigation, albeit without notice to me, almost three months later. It is even more troubling that the recollection of a bystander, namely GSO Fallon, has been accepted as the facts of the case when neither I nor the members of the public have been spoken to.

One of the many complaints against me is that I was not a competent investigator. We all know that when there are two sides to a story (and there usually are) and there are four potential witnesses, more than one side and one witness should be spoken to before a finding of fact, particularly when it is adverse to a person and is later to be used to support her potential dismissal.

Detective Inspector Jubelin, in his report to Dr Kirby of 9 June 2006 chose, albeit without any medical qualifications, to connect my issue of the traffic infringement notice to his declaration to me on 21 March 2006 that I was to be reverted to uniform. He authoritatively stated in the report: "The next day on her way to work Alyson felt the need in her private vehicle to issue a traffic ticket. The manner in which Alyson conducted herself on this occasion resulted in the mother of the driver turning up at the police station to ascertain if Alyson was really a police officer and inquire about her actions. I raise this issue on the basis that it causes me concern that the day after she displays emotions and aggression to senior officers, she feels the need to demonstrate her powers as a police officer on the way to work."

The only person from whom a statement was obtained with respect to this matter was GSO Fallon. She did not raise any issue with the way I allegedly conducted myself during the traffic stop. She did not state that the driver and his mother attended the police station to ascertain whether I was really a police officer. She did not state that they attended the police station to inquire about my actions. On what basis did Detective Inspector Jubelin make those findings of fact against me and provide them to the PMO, whom he knew would rely upon them to provide a report concerning my fitness for duty.

In actual fact GSO Fallon recorded that the driver of the car told her that I had showed him my police badge through the window of the car. GSO Fallon's inquiry was as to the identity of the police officer, not whether the person who stopped the driver was a police officer. I had no hesitation in telling GSO Fallon that I was the person being sought by the members of the public. I had done nothing wrong. I had no need, as Detective Inspector Jubelin so authoritatively states, to assert my authority. The young driver was talking on his mobile phone whilst driving a large vehicle, one handed, on the Pacific Highway during a busy period. He nearly ran into the back of my vehicle. If I had not taken action it would have been a neglect of my duty. Detective Inspector Jubelin's account to the PMO has absolutely no basis in fact. It has no basis even if one accepts the report of GSO Fallon. Upon what basis did he find those facts and form his opinions about my alleged motives?

Report by Detective Inspector Jubelin dated 23 March 2006

I have already commented upon one area where Detective Inspector Jubelin's report is erroneous as to fact and unqualified as to opinion.

I again ask the question, perhaps rhetorically under the circumstances, why he did not make any inquiries of my previous commanders, workmates or supervisors as to my demeanour during my many years service prior to being stationed at Chatswood. At no time does he appear to take into account any possibility that my emotional responses were in any way due to the approach of Detective Sergeant Evatt, Detective Sergeant Williams or himself. Ironically all three of these officers approached my responses and situation with the same rigidity and refusal to consider alternative reasons as that with which they so certainly and unequivocally accuse me." 107 In summary, the applicant complained that she had never been asked by anyone to explain her version of what occurred and she denied those facts that created an unfavourable view of her conduct. In her judgment, it was appropriate for her to have taken action against the young driver who was clearly in breach of the relevant traffic laws concerning the use of mobile phones whilst driving. This is to be contrasted with the evidence, adduced on behalf of the Commissioner in the proceedings, which seemed to criticise a police officer for taking such action. In my opinion, the conduct of the applicant in taking the action that she did is to be preferred over any expression of opinion that would condone a blatant breach of the traffic laws. 108 A further insight into this matter is provided by an understanding of how it came to be investigated. As at May 2006, Detective Inspector Jubelin had obtained the assistance of the Employee Management Branch and in particular Constable Aimee Moscatelli of that Branch in pursuing his aim to have the applicant dealt with because of her conduct and behaviour. I shall refer in some greater detail to the activities of the Employee Management Branch and in particular Constable Moscatelli later in these reasons for decision. For present purposes, I observe only that Constable Moscatelli was assisting Detective Inspector Jubelin to compile a list of matters that could be forwarded to an Internal Review Panel for consideration as to whether any further action could be taken against the applicant. In compiling a list of matters, Constable Moscatelli referred to "?????? road rage incidents." After consulting with other persons in the Employee Management Branch, Constable Moscatelli suggested that Detective Inspector Jubelin provide some documentation about the "road rage incident". Ultimately, she contacted Detective Sergeant Evatt for this purpose. He gave oral evidence in the proceedings about what action he took to find any relevant documentation. Detective Sergeant Evatt could not recall the details of what steps he took to ascertain information about the incident. However, the enquiries that he made were undertaken on 23 June 2006 some three months after the incident occurred. Although he spoke to GSO Fallon, the author of the report, he did not discuss the matter either with the driver or his mother nor did he discuss the matter with the applicant. He was not prepared to accept the narrative on the infringement notice, which was issued by the applicant, namely that the driver had attended the police station of his own volition. He did not give any consideration to whether the applicant was in plain clothes that day or whether she was required to change into a uniform. 109 Accordingly, it may be concluded that the information obtained from GSO Fallon was not the subject of any critical evaluation process. Certainly, it was not tested against the applicant's version of what occurred. 110 It is clear that this incident played some part in Detective Inspector Jubelin's assessment of the applicant, which in turn was relied upon by the Commissioner in his Statement of Reasons in determining to remove the applicant from the New South Wales Police Force. 111 Of course, it is impossible to determine the degree to which this particular incident played any part in the formulation of any such opinion. It is but one of many relied upon by Detective Inspector Jubelin and but one of many which is referred to in the documents which formed part of the Commissioner's Confidence Submission. 112 There is a detailed memorandum prepared by Detective Inspector Jubelin addressed to Dr Kirby, the Police Medical Officer, dated 29 May 2006, which is within the Commissioner's Confidence Submission documents. It is enlightening because it is informative of the attitude of Detective Inspector Jubelin to the applicant and the reasons therefor. 113 The memorandum summarises the history of the applicant's placement with the North Shore Local Area Command. It commences by referring to the fact that the six months RPP established in December 2004 has not yet been completed because of the applicant's extensive sick leave, the fact that she has been on restricted duties for a large period of time and that she has displayed "distrust and open hostility" to her mentor and supervisor resulting in a situation which has become "untenable". 114 There then follows details of a series of events and situations. The memorandum contains a summary of Detective Inspector Jubelin's assessment of the applicant and her circumstances in the following terms: "The details in this report outline some of the issues that have arisen with (the applicant). In summary the emotions displayed by (the applicant) are volatile and her reactions are disproportionate to situations. It appears through her conversations and actions that she craves recognition. (The applicant) can not and will not accept advise (sic) from more senior and experienced officers. (The applicant) has alienated herself from her work colleagues and does not appear capable of working in a team environment. (The applicant) is totally disruptive in a work environment. The impact (the applicant) has had on this command since her arrival is negative and affects the efficient working of the LAC. (The applicant) has been placed on restricted duties and referred to the Police Medical Officer on three occasions whilst attached to this command. This will be continued when ever (the applicant) displays the type of emotion as outlined. There appears to be absolutely no progress made with (the applicant) since the time she arrived at this LAC. As her supervisor I have no confidence in her abilities to carry out duties as a sworn police officer. This LAC has had trouble placing (the applicant) in any section in this LAC where she does not cause disruption. As unpleasant as this is to document, there is no person I know within this LAC who is happy to work with (the applicant). Staff both junior and senior have approached me and specifically requested that (the applicant) not be placed in their section or team. Despite all efforts to manage (the applicant) appropriately, her personality type prevents even the slightest of progress being made." An amended Remedial Performance Program 115 On 30 May 2006, Detective Inspector Jubelin amended the applicant's RPP because she had temporarily been placed on restricted duties. The amended RPP was to have a three months duration taking into account that the original program had been in operation for only three months. Under the heading "Background" the amended program referred to "several incidents where your conduct has not been to the standard required by the New South Wales Police." These included a failure to provide Detective Sergeant Evatt with a list of current work commitments, a failure to provide statements in connection with a matter, a disagreement with Detective Sergeant Evatt concerning insufficiency of evidence in a fraud matter, an allegation of inaccurate reporting with respect to an aggravated sexual assault "on my plate", an alleged aggressive reaction to suggestions by another police officer in discussions with respect to a fraud matter, inaccurate recording of times and duties in her duty book, the shopping incident on 1 April 2005, her attitude and conduct when being spoken to by the Local Area Commander, her attitude and conduct towards Detective Sergeant Evatt and "on numerous occasions, you have been reluctant to accept advice or guidance from supervisors or peers. You become defensive, emotional and aggressively sarcastic. These outbursts have been described by colleagues as volatile and irrational behaviour. You often make continual reference to your past experience and investigations in an apparent attempt to justify your behaviour, decisions and opinions." Evidence of other police officers 116 Sergeant Peter Taylor was appointed together with Sergeant Bear, as a co-mentor to the applicant under the amended RPP, which commenced on 30 May 2006. He was the mentor during June 2006 and provided a written report on 1 July 2006. After a period on sick leave and other leave, the applicant had performed work in the exhibits section under the supervision of Senior Constable Hawkins. Previously, she had assisted Senior Constable Harridge, the brief handling manager, entering data on to a new exhibits management system. The report of Sergeant Taylor indicates that the applicant requested a copy of the RPP indicating that she did not wish to sign it and that she had previously rejected a copy of it when offered to her. This was provided to her. 117 The applicant told Sergeant Taylor that "she believed that she was a good investigator, but did not wish to return to investigation duties at North Shore as she did not like 'the office' at North Shore…"

118 Sergeant Taylor provided a progress report for the period 30 May to 30 June 2006 concerning the applicant's RPP. He referred to a number of meetings with the applicant during this period. At that stage, she had commenced duties in the Exhibits Section under the supervision of Senior Constable Hawkins, who had advised Sergeant Taylor that she was progressing well and that he had no issues of concern with her performance, although she had "only just" commenced those duties. 119 The only matter of contention referred to in the report arose as a result of a direction given by Detective Inspector Jubelin to the applicant through Sergeant Taylor that she not undertake a particular task in connection with an old matter over which she had carriage. The applicant took exception to this. When informed later that the contentious matter had been withdrawn by Detective Inspector Jubelin and that he would speak to her, the applicant informed Sergeant Taylor that she would not speak to Detective Inspector Jubelin unless an independent person from outside the New South Wales Police Force was present. 120 On 3 July 2006, Dr Kirby, the senior Police Medical Officer recommended that the applicant, by reason of her conduct and behaviour, be permanently restricted from access to her appointments. This recommendation entailed not wearing a uniform in public, not driving a marked police vehicle, being limited to station duties and, obviously, an inability to have access to the usual appointments. 121 This recommendation was subsequently acted upon. 122 At his first meeting on 4 July 2006 concerning the amended RPP, Sergeant Bear discussed the restricted duties which she was then undertaking in the exhibits section and the brief handling portfolio. The applicant said that the duties she was performing were "mundane". She told Sergeant Bear that she had "been to see the Commissioner's Office and it was her understanding that she would be returning to full duties sooner rather than later." Sergeant Bear noted that in relation to that and other conversations that day concerning the applicant's contact with the Commissioner's Office that: "I got the clear impression that she did not accept her current role and that she question (sic) my authority to enforce the current situation. Reid-Frost either did not believe my summation of the situation or could not accept the reality of her situation." There was a conversation to similar effect on 14 July 2006. 123 Sergeant Bear's report concludes in this fashion. "Over the period of this report, I have had numerous encounters with her, in respect to initiating meetings or conversations with me. I have further informed her that she only needed to report to her supervisor and not me every time she wished to do an activity. Her supervisor would then inform me at a later date to give a situation report and a work progress report. I have had constant reminders from Reid-Frost that she was required to inform me of every movement or different course of activity she undertook day to day. I found this to be over the top and stressful to me. I further informed her that she was not required to inform me on her every movement. There continues to be a theme of questioning decisions made in regard to her duties and supervision. I find that she disputes or at the very least appears to try to justify her actions to me, even when I am trying to advise her as to the best practice or course of action as her mentor. I believe that this relates directly to her plan as one of her remedial objectives that she has clearly either not complied with or had simply misunderstood. In respect of her work, I have spoken to her supervisors that are directly responsible for her day to day supervision. I have been informed she has carried out her specific tasks to a satisfactory manner." 124 Sergeant Bear gave oral evidence which consisted predominantly of cross-examination. Whilst one must be careful in assessing witnesses from a brief opportunity only of observing them in the witness box, having regard to the evidence which he gave, I found Sergeant Bear a most impressive witness who, in the manner in which he addressed himself to informing the Commission about the applicant, appeared to me to be completely honest, objective and sincere. In making these comments, I should not be thought to have assessed any other witness as lacking in any of these qualities. Rather, I regard the evidence of Sergeant Bear as being untainted in any way by any suggestion, as maintained by the applicant during the course of the proceedings, that there was in some way a conspiracy to remove her from the New South Wales Police Force and to adduce evidence in support of such a conspiracy. Other factual matters 125 Senior Constable G Harridge, the brief manager at the Local Area Command, wrote a memorandum to Detective Inspector Jubelin concerning the work performed by the applicant in archiving briefs of evidence. He noted that during the month of August 2006, she had been assigned to assist him to archive briefs. He noted a number of errors in this task. She had filed 216 briefs of evidence. Of those entries, 46 were error free. 171 contained errors and 49 of the entries had multiple errors. 126 There was also included in the Commissioner's Confidence Submission three documents relating to the involvement of the applicant in a trial at the Downing Centre District Court in August 2006. During the course of the trial, the Crown Counsel had raised concerns with the applicant about the quality of the brief of evidence. The applicant had also requested assistance in connection with her work associated with the conduct of the trial. A memorandum from Sergeant Bakos, dated 22 August 2006, referred in some detail to conversations which he had had with the applicant on the prior day. He noted that the applicant was "very emotional" and "on the verge of tears" during the conversation. 127 The applicant developed a "general feeling" that she had been intimidated and threatened by the accused and his associates. Detective Inspector Jubelin arranged for Sergeant Bakos to accompany the applicant to the trial and remain with her. On the second day of the trial, after the applicant had been spoken to by the Crown Counsel about the police brief, the applicant became "very emotional and crying and appeared to be on the verge of a breakdown. She repeatedly blamed Burwood for the problems associated with the trial, including the lack of support, the lack of a vehicle and that she had to attend the trial whilst on restricted duties. Because she was in such an uncontrollable state, I could not calm her down…" 128 An email communication from the New South Wales Police Staff Branch to Detective Inspector Jubelin, dated 21 August 2006, confirmed that Detective Inspector Jubelin had expressed concern about the welfare of the applicant concerning her involvement in the trial and that assistance had been arranged for her. Furthermore, arrangements were made through the Employee Assistance Branch for a counsellor to establish contact with the applicant, which occurred. 129 Detective Inspector Jubelin was principally concerned in the determination that the applicant had failed to satisfactorily complete the RPP's established for her, as referred to in the Commissioner's Statement of Reasons. He was cross-examined extensively concerning the opinions that he had formed about the applicant and the basis for those opinions. With respect to a number of incidents, he conceded that he relied solely on information provided to him by others, for example Detective Sergeant Evatt in whom he had complete confidence, GSO Fallon with respect to the "road rage" incident and other incidents of a similar kind in which Detective Inspector Jubelin was not personally involved. However, it is clear that he did have contact with the applicant from time to time and that he found such contact unsatisfactory. This commenced with her refusal to acknowledge the initial RPP that was created for her and what he perceived to be her reluctance to participate in it. Furthermore, he found the applicant dismissive of him and other officers in authority and he found it difficult to communicate with her because of the emotional way in which she reacted to any criticism or attempt by him to deal with any difficulty which had arisen. There is included within the evidence a memorandum from Detective Inspector Jubelin to the Employee Management Branch in which he complained of not having taken any sick leave over the last 10 years, but being concerned that he would be forced onto sick leave by reason of his dealings with the applicant. 130 There is included within the Commissioner's Confidence Submission a memorandum of K Campbell Acting Superintendent North Shore Local Area Command dated 8 December 2006. I am unable to discern any particular reference to the material contained within it in the Commissioner's Statement of Reasons and grounds, but nevertheless it is contained within the Commissioner's Confidence Submission documentation and was therefore available to him. It refers back to the District Court trial in August 2006 and deals with other matters. I set it out verbatim. " ISSUE : Meeting with Senior Constable Reid-Frost on Tuesday 5 December 2006. COMMENT : Approximately 4.50pm on Tuesday 5 December 2006 Superintendent Little and I met with Alyson Reid-Frost in the Commanders office at Chatswood Police Station. I informed Alyson that an appointment had been arranged with the Police Medical Officer (PMO). I also informed her that she was on restricted duties until further notice as the PMO, Dr Kirby, had reservations regarding comments made by her treating psychiatrist in his report. Alyson became upset with this and her tone of voice became aggressive. I told her to take a deep breath, count to ten and calm down. She immediately stated that she wanted to submit a report in relation to our conversation earlier in the day 9during this conversation she had again raised the issues relating to the lack of support she received during the recent trial, the fact that she was not given a vehicle to collect exhibits and the 'loss' of exhibits from Ashfield Police Station). I informed her that she could submit a report if she wished. Alyson then complained about the PMO process and the fact that the PMO was permitted to read all the reports written about her but she was not privy to them. She immediately changed the topic and raised the issue of a sexual harassment allegation she had previously mentioned to Superintendent Little relating to her time at Burwood Local Area Command. Superintendent Little informed her that, as he had previously explained to her, if she submitted a report outlining the allegations it would be thoroughly investigated. Alyson scoffed and stated that it was useless to submit a report as it would not be taken seriously. She has since submitted the report. On numerous occasions during the meeting I told Alyson to take deep breaths and calm down as she was raising her voice and her tone was becoming aggressive. I told her that I believed that she had a personality issue as she was always too intense. She appeared as if she was going to cry so I told her to finish work for the day and go home. She stated she couldn't leave as she had to complete the report relating to the mobile phone IMEI numbers she had discussed with me earlier in the week. I told her she could complete the report next week as it was not urgent. She then left the office. Approximately half an hour later I was leaving for the day and carrying two heavy bags down the corridor. Alyson approached me and immediately began the conversation again. She stated she wasn't angry with me but with other people and the system and knew this was going to happen (meaning restricted duties). She said that her personality had changed because of the issues she had to deal with in the detective's office. I again told her to go home but she stated that she had things to do. I told her that this was the same problem I had spoken to her about earlier in the year when she was on restricted duties and working in the station. During her period on restricted duties she had consistently stayed at work until 8pm-9pm 'working' on the computer and I regularly told her to go home. Each time she had wanted to stay because she hadn't had time to complete everything while she was working in the front office. She continued to ramble on about all her issues and I finally told her to 'go home, go home, go home.' She finally allowed me to leave." 131 The applicant submitted that I should not attribute "any great weight" to the contents of this document because, inter alia, at that stage the applicant had been subjected to two years of monitoring by Detective Inspector Jubelin and Detective Sergeant Evatt, she had never been privy to communications between Detective Inspector Jubelin and the Police Medical Officer, she was not coping emotionally at that time, Acting Superintendent Campbell was not called to give evidence in the proceedings and it would be unfair if, in the circumstances, the contents of the memorandum would be taken as being truthful, they never having been put to the applicant by Acting Superintendent Campbell for her response. 132 I do not intend to have regard to the contents of this memorandum for the purpose of assessing whether or not the applicant's removal was harsh, unreasonable or unjust. However, for reasons which I shall develop, I believe that the contents of the memorandum are relevant in terms of a determination about what is the appropriate relief to be ordered in the circumstances of these proceedings. 133 Detective Inspector Peter Charles Yeomans was the acting Commander of the North Shore LAC during the time that the applicant was working in general duties in early 2007. Whilst he was in this position, two matters came to his attention. The first was an incident on 27 February 2007 during the course of a lecture being given at Chatswood Police Station to a number of general duties and other officers in relation to general purpose and drug detection dogs. The Eduction Development Officer, Constable Dixon, reported that day that the lecture had been interrupted by the applicant who had also asked a number of irrelevant questions, made irrelevant comments and "continually caused disruption to the training environment". 134 The other incident had occurred earlier that day. Acting Inspector Andrew Birch had seen the applicant in the designated outdoor smoking area of the Police Station lying flat on a double bench seat in full view of the public. The following morning, Acting Inspector Birch had made a general comment at the "station muster" about appropriate conduct at designated smoking areas. He was later informed that the applicant had complained about this conduct. 135 Detective Inspector Yeomans counselled the applicant with respect to each of these matters. He regarded the matters as closed. 136 Both reports are contained within the Commissioner's Confidence Submission bundle of documents. The report of Acting Inspector Birch is dated 18 April 2007, almost two months after the incident occurred and I infer that it was created at the request directly either of Detective Inspector Jubelin or, on his authority, Detective Sergeant Evatt for the purpose of inclusion within the dossier of material being prepared to initiate disciplinary action against the applicant. Secondary employment

137 The Commissioner's Statement of Reasons also relies upon unauthorised secondary employment being undertaken by the applicant. It states that she made application for secondary employment on 29 March 2007, which was declined on 6 July 2007. She admitted that she undertook secondary employment between 4 June 2007 and 6 July 2007 as a credit controller. This was said to be a breach of the Police Force Secondary Employment Policy and Guidelines which prohibits secondary employment without formal advice and approval. 138 This aspect is also covered by documents within the Commissioner's Confidence Submission. 139 The applicant completed an application for approval to undertake secondary employment in an accounting function noting that at that stage she was currently on extended leave. It was dated 29 March 2007. The application was recommended by the acting Local Area Commander who said that there appeared to be no conflict with the New South Wales Police Force protocols concerning secondary employment. He noted that the applicant was on extended leave from 5 March to 28 May 2007 and that she was currently the subject of a s 181D application, which had not yet been resolved. He said, in part: "The applicant was also spoken to concerning the proposed hours of work - she stated that these full-time hours would only continue whilst she was on leave, following that, she would be employed on a casual basis." That recommendation was dated 29 March 2007. 140 The application was the subject of a comment by "David Williams" on 30 April 2007. The comment noted that secondary employment approval would not, under the policy guidelines, be considered in conjunction with approved leave unless that employment "provides direct and sufficient benefit to the Police Service." It was noted that this had not been demonstrated. The matter was then referred to the General Manager, Human Resources Equity and Diversity. The application appears to have been declined by Kristin Adair, Policy and Projects on 6 July 2007. There appears to be no explanation as to why Kristin Adair took over eight weeks in which to determine the matter. 141 I should add that the circumstances of the secondary employment appear to have been thoroughly investigated by the New South Wales Police Service, statements having been taken from a number of witnesses. 142 During the course of an interview with Inspector Bell on 3 October 2007, the applicant explained that from around late April 2007 to early May 2007, she had made enquiries of the North Shore Local Area Command about what had happened to her application and had been told that it had to be considered by the Professional Standards Command because she was on long service leave during that period. The Employee Management Branch ("EMB") involvement

143 The applicant's file within the Employee Management Branch was tendered into evidence. It demonstrates in general terms that Detective Inspector Jubelin sought the assistance of personnel within that Branch, predominantly Constable Aimee Moscatelli, in formulating and framing reasons which would ultimately form the basis of those relied upon by the Commissioner in determining to remove the applicant from the Police Force. The Employee Management Branch file contains some material that predates the applicant's arrival at North Shore LAC. There is a memorandum of 15 January 2004 created by a consultant, Liz Cowie, which summarises material discussed with her by the applicant, who at that stage was stationed as a detective at Surry Hills, and who had just returned from some months of stress leave after being attached to Burwood LAC. The memorandum refers to difficulties encountered by the applicant after a prosecution had been dismissed because she had left a certain document out of a police brief. She was later informed that she would be placed on a "Performance Agreement" as a result of this. The applicant complained about action being taken against her and blamed a more senior officer who should have discovered that the document was missing from the brief when he checked it. She also blamed the prosecutor for not having drawn it to her attention. She was upset that the more senior officer was not to be the subject of any disciplinary action of any kind. There was another incident arising out of a difference of opinion with another detective about which a report had been submitted although she had not been spoken to about that matter. When it was suggested to the applicant that she should consider discussing this matter with her superior officer, she stated that she had no confidence in him and did not feel that speaking to him would achieve anything. She agreed with the suggestion that she should write a report outlining the various issues to which she had referred but stated in addition that she was going to make a complaint to the Ombudsman. 144 A further memorandum dated 20 January 2004 made by Constable Rosemary Roberts reported discussions with other officers concerning the applicant and indicated that she had refused to accept service of a copy of the Performance Agreement referred to above. There is a further report of 6 February 2004 from Constable Roberts of a discussion with a member of the Professional Standards Unit which indicated that the applicant had been "causing a number of problems within the Surry Hills detectives' office, even for the short period that she had been there, approximately two weeks." There was a note that the applicant was to be transferred again to Redfern LAC on a temporary basis. There was a discussion about whether she should be placed on a performance plan or program of some kind. 145 A file note of 12 February 2004 by Constable Roberts of a contact by a member of the Professional Standards Unit indicates that the applicant "had continued to cause problems at Surry Hills LAC" and there was concern that the acting Local Area Commander could no longer manager her appropriately. 146 There is a note of a telephone contact by the applicant to Senior Constable John Foley of 16 February 2004 in which the applicant is recorded as having become "very emotional". She stated that she believed she was being victimised and ostracised with respect to a RPP. There is reference to a psychiatric report, to the fact that the applicant did not want to work at Burwood, and that there were concerns about reprisals against her upon transferring to Surry Hills arising out of a report made by her alleging misconduct by another officer whilst she was on probation. The applicant telephoned Rod Sherring on 17 March 2004. She said that as a result of a complaint made about her handling of a matter, she was to be returned to Burwood LAC from Surry Hills. She said that she would not return to Burwood because of a "harassment issue." There was a discussion about the applicant's obligations under a Performance Management Plan and the matter was to be pursued by other consultants at the EMB who were more familiar with the applicant's circumstances. 147 Further material indicates that attempts were made by members of the EMB to contact senior officers at Burwood LAC. These discussions continued throughout all of April whilst senior officers at Burwood LAC went about completing their enquiries concerning a number of issues involving the applicant. 148 The next notation in the material is dated 2 August 2004. It appears that at that stage, the position at Burwood LAC, with respect to the applicant, had not yet resolved. There were complaints made concerning the applicant that investigations being conducted by the Burwood LAC were still outstanding. At that stage, the applicant had been transferred to Ku-ring-gai LAC where Superintendent Gallagher had reported favourably on her performance there, over the prior 12 weeks. 149 This matter appeared to remain in abeyance as at August 2004. There is, however, a note that Senior Constable Rosemary Roberts of EMB was contacted by Superintendent John Richardson of Campsie LAC on 8 August 2005. He said that he was "currently investigating and managing a complaint submitted by Senior Constable Reid-Frost." 150 The next reference in the material produced from the EMB files for the purpose of these proceedings is dated May 2006, a period when the applicant was with the North Shore LAC. The subject of a file note dated 18 May 2006 is said to be "assist North Shore LAC with preparation of chronology for compilation of report to refer S/C Alyson Reid-Frost to the IRP." (Internal Review Panel). On 18 May 2006, Sergeant Rosemary Roberts and Constable Aimee Moscatelli of the EMB met with Detective Inspector Jubelin and Detective Sergeant Evatt and discussed the applicant. They photocopied and took away a number of documents for the purpose of completing "an annexure to the current RPP for her return to General Duties and a chronology of events…" so that a report could be compiled to refer the applicant to the IRP. There was also a discussion about the applicant's health and a suggestion that she should be referred for medical assessment of her fitness to work as a police officer. Detective Inspector Jubelin discussed the applicant with the Police Medical Officer who indicated to him that the applicant did not have "a psychiatric disorder" however he did find that "she has a personality disorder. These personality traits make it difficult for (the applicant) to be a police officer and are not conducive for being a police officer." Detective Inspector Jubelin informed Constable Moscatelli on 19 May 2006 that the applicant would remain on restricted duties after she returned to work on "23rd May next", and this is what occurred. The EMB drafted an annexure to the applicant's RPP to reflect her restricted duties. From then on the EMB file reveals that there was constant communication between primarily Constable Moscatelli of the EMB and Detective Inspector Jubelin and Detective Sergeant Evatt concerning the applicant, and the preparation of documentation for presentation to an IRP. Constable Moscatelli also liaised with other areas within the Police Service with a view to the institution of a formal complaint process against the applicant. 151 It is obvious from the EMB file that much of the documentation, which was provided by various officers within the North Shore LAC and which found its way into the Commissioner's Confidence Submission document, was initiated by them as a result of requests made predominantly by Detective Sergeant Evatt and also by Detective Inspector Jubelin and the Local Area Commander. It is obvious also that the reports from Dr Kirby, the Police Medical Officer, to which I have previously referred were created at the request of Detective Inspector Jubelin as part of his involvement in a process designed ultimately to excluding the applicant from the North Shore LAC. 152 On 22 June 2006, Constable Moscatelli telephoned Alison Varney, the CEO of Healthquest and spoke to her "hypothetically" about the applicant "to question if there was a possibility for medical discharge for an officer with a personality disorder." Constable Moscatelli was informed that a personality disorder "is not a diagnosed condition" and therefore had to be dealt with as a "performance management" issue and then as a disciplinary issue. There was a discussion to the effect that "From a clinical position the officer could not continue being a police officer if they were continually going off on stress leave." 153 On the same day, Constable Moscatelli discussed the applicant's case with other officers including an officer in the process unit. As a result of information she was given, she contacted Detective Inspector Jubelin later that day and suggested that he contact the Police Medical Officer to review the applicant's status on restricted duties, that the Local Area Command seek an independent assessment of the applicant by an independent psychiatrist, however at the cost of the Local Area Command and that she would assist in writing a draft report collating all the information which Detective Inspector Jubelin could take to the "CMT". Constable Moscatelli says that she told Detective Inspector Jubelin: "If the CMT think there is enough for the matter to go to the IRP and Reviewable Action is taken, then the North Shore LAC will have to defend the matter at the IRC (should it go that far). I informed Insp Jubelin that if the CMT determined the matter should go to the IRP that it may not get listed due to the RPP being incomplete." 154 The reaction of Detective Inspector Jubelin to these suggestions may be gauged from the note of the conversation taken by Constable Moscatelli. It said: "Insp Jubelin was unhappy with this information due to his frustrations in feeling the organisation was not assisting the North Shore LAC. He stated that he had not taken a sick day in 10 years but this situation is getting him to the point where he will end up going off on stress leave. I did not take this as a threat from Insp Jubelin, I believe he is simply extremely overwhelmed and frustrated that (it appears) nothing can be done with Reid-Frost. He stated he felt like the organisation has and continues to bend over backwards for people like Reid-Frost at the expense of good hard working staff members, such as himself. He stated that he felt like he was getting flicked passed between the PMO and the organisation because neither wanted to make a decision. Insp Jubelin appears at his wits' end in managing Reid-Frost." 155 On 23 June 2006, Constable Moscatelli liaised with Sergeant Roberts and Sergeant Upton of the Employee Management Branch. She recorded that "Sgt Upton suggested we look at this matter from a different perspective, in the fact that, Reid-Frost has not been keeping with the 'spirit' of the original RPP. If Reid-Frost has never accepted that she should be on a RPP (as indicated by her not signing the RPP or recently the Annexure to the RPP) and 'walks off' in a state every time she is spoke to (or assisted) by a supervisor/mentor about her performance, then she is not fulfilling the requirements of the RPP by accepting to be developed. This would mean she is failing the RPP due to her conduct." 156 It was then decided in consultation with Detective Inspector Jubelin that Constable Moscatelli would prepare a document setting out all of the leave taken by the applicant and the incidents in which she was involved for the purpose of submission as to whether or not some form of action could be taken against the applicant. 157 Detective Inspector Jubelin forwarded an email to Constable Moscatelli on 27 June 2006 after obtaining a further report from Dr Kirby. That report had confirmed his opinion that the applicant had an ingrained personality disorder and that her behaviour was unlikely to change. He rejected a suggestion that there should be perseverance with the applicant's RPP. Firstly, she openly resisted being on it and her attitude to it was hostile. Secondly, she was unable to complete the RPP as originally formulated because she was on restricted duties. She was on restricted duties because she reacted unduly emotionally to any attempt to apply the RPP to her. It was this that caused the need to put her on restricted duties. This in turn resulted in an assessment that the applicant would not be able to return to duties as a detective carrying out criminal investigations even if she were declared fit to return to full duties. Furthermore, Detective Inspector Jubelin said: "Alyson through her behaviour and personality has alienated herself from the majority of the officers attached to the Detectives' Office. This is to the extent where she has stated that she does not trust the two Senior Officers in the Office and is not prepared to talk to them unless the conversation is recorded or an independent person is present. These Officers are her supervisor and mentor. The issues Alyson has with these Officers are a direct result of them managing her in their appointed roles. I feel as an organisation we have a responsibility to all our employees to create an acceptable work environment. I think it would be unfair to the other Officers if Alyson was returned to the office. Could you also consider my position as Crime Manager and Reviewing officer for Alyson at this LAC. My last communication with Alyson was through her new mentor scheduling a meeting with Alyson to discuss an issue she has raised. Alyson indicated that she would not see me unless an independent person was present. This makes my position difficult. I am now on Alyson's list of people she does not trust. This again is direct result of my performing duties in managing Alyson." 158 There followed further discussions between Constable Moscatelli and Detective Inspector Jubelin as noted in the EMB records. Eventually, Constable Moscatelli drafted a document that ultimately formed the basis of the document which was used by the Commissioner in determining to initiate action against the applicant and which ultimately led to her removal. There were several drafts of the document and discussions about it with Detective Inspector Jubelin. In doing so, Constable Moscatelli had access to other officers within the EMB. The file notes tendered in the proceedings finish as at July 2006. Exclusion of certain evidence

159 The Commissioner's Statement of Reasons, in referring to grounds of conduct, integrity, performance and competence, commenced by referring to "a number of issues" being identified regarding the applicant's performance in the areas of "record keeping, case management, teamwork and criminal investigation" as occurring "during 2004". There is then a reference to the Commander's Warning Notice served on 22 November 2004 and the fact that the applicant had declined to sign for that document although acknowledging its contents and implications. I note that there was an implication with respect to "possible further management action" contained within its terms. 160 The Statement of Reasons then goes on to refer to the RPP implemented on 24 January 2005 and to subsequent events. 161 Although the Warning Notice itself was part of the Commissioner's Confidence Submission documents, there are no other materials contained within those documents that refer to the background against, and the circumstances in which, the Warning Notice was issued. Furthermore, the Commissioner's Statement of Reasons only refers to "a number of issues" being identified "during 2004" with no hint of what they might be. If the Commissioner, in his Statement of Reasons, intended to rely upon what occurred during 2004 as representing grounds for dismissal, then in my view the broad generality by which these issues were described, and the lack of specificity, would render such grounds as meaningless, particularly in the context of the applicant being required to respond to them in some way. My reading of the Statement of Reasons is that the reference to these unspecified issues during 2004 merely attempts to set the scene for what follows and is there by way of background only. I apprehend the applicant to have proceeded on the same basis. 162 Notwithstanding this, the Commissioner sought to have tendered into evidence a number of documents that related to matters which had occurred during 2004 and two matters which appear to have occurred in October and November 2003. I rejected the tender of this documentation because the issues which occurred in 2004 were not specifically referred to in any way in the Commissioner's Statement of Reasons, could not therefore have been relevantly relied upon by him, were not included within the Commissioner's Confidence Submission and, in all the circumstances, it would have been unfair and inappropriate to allow these proceedings to have been conducted by reference to these matters. 163 Notwithstanding this, some material about these matters was admitted into evidence, being part of a consent tender bundle. I shall not take it into account in determining whether the removal of the applicant was harsh, unreasonable or unjust, but I will have regard to it in determining what is the appropriate relief to be afforded to the applicant, for reasons that I shall later develop. The Statement of Reasons for removal

164 S 181D(4) requires that the order made by the Commissioner to remove a police officer must "set out the reasons for which the Commissioner has decided to remove the police officer…". A Statement of Reasons will be necessary to enable the officer to understand why he or she has been removed, will be essential to ground any application for review which a police officer is entitled to make under s 181E, and will be essential to this Commission in conducting a review. In this latter regard, s 181F(1)(a) requires the Commission when conducting a review to consider firstly "the Commissioner's reasons for the decision to remove the applicant…" 165 The Commissioner signed an order issued under s 181D(1) of the Act removing the applicant from the police force on 15 May 2008. The order said in part: "The reasons for my decision are annexed hereto under the heading 'Statement of Reasons'." 166 I reproduce hereunder the Statement of Reasons which were annexed to the removal order, save for a reproduction of the signature of the Commissioner and the date appended to those reasons, namely 15 May 2008. "I am required to make a determination under section 181D (1) of the Police Act 1990, in respect of whether I have confidence in you as a member of the New South Wales (NSW) Police Force.

In making the determination, and in accordance with the relevant legislation, I have taken into account the grounds set out in my Notice pursuant to section 181D(3)(a) of the Police Act 1990, the material contained in the Commissioner's Confidence Submission, which were served on you on 22 November 2007 and your response to my Notice.

I have given careful consideration to all the material that has been presented to me in this matter and provide the following reasons for my determination:

The following grounds, as set out in my Notice to you, refer to your conduct, integrity, performance and competence.

During 2004, a number of issues were identified regarding your performance, specifically in the areas of record keeping, case management, teamwork and criminal investigation.

On 22 November 2004, you were served with a Commander's Warning Notice in relation to certain issues. The Commander's Warning Notice made it clear that:

You should clearly understand that continued unsatisfactory conduct and/or performance of duties may result in further management action, which may entail consideration of reviewable action under section 173(2) of the Police Act 1990, or removal under section 181D of the Police Act 1990 .

You declined to sign for this document however you acknowledged the contents and the implications. You were informed of your position in regard to possible further management action.

On 24 January 2005, you were placed on a Remedial Performance Program.

The Remedial Performance Program states, among other things:

Failure to complete the outcomes as described in this Remedial Performance Program may lead to consideration of reviewable action in accordance with Section 173(2) of the Police Act (1990) or termination in accordance with Section 181D of the Police Act 1990.

You also declined to sign this document, stating that you did not agree with the contents. The Performance Program was provided to you and you were appointed a mentor under the Remedial Performance Program.

During the period 1 February 2005 to 27 February 2007, you engaged in a continued pattern of inappropriate and unprofessional behaviour and conduct.

You continued to fail, over a lengthy period, to demonstrate the standards of conduct, performance and competence expected of a police officer and outlined in your Remedial Performance Program, including in relation to record keeping, teamwork skills, technical and professional skills in the area of criminal investigation and prosecution, customer service, decision making, and planning and organisation/work management.

I also consider that you have failed, over a lengthy period, to demonstrate the Investigator Practitioner Competencies set out in JSR4. These include:

• Technical Professional Knowledge • Decision Making • Teamwork/Collaboration • Customer Service • Planning & Organising/Work Management Furthermore, I consider that you have demonstrated an unwillingness, or inability, to improve your performance, conduct, and competence to required levels, and that you have, over a lengthy period, displayed conduct and attitude inconsistent with an ongoing career in policing.

You have failed to meet the standards set by the NSW Police Code of Conduct and Ethics - 'Professional Competency and Development' (as in operation until October 2006) and the NSW Police Code of Conduct and Ethics - 'Statement of Values' and 'Standards of Professional Conduct' (as applying from October 2006 onwards).

The NSW Police Code of Conduct and Ethics - 'Professional Competency and Development' (as in operation until October 2006) stated:

The New South Wales Police Force is responsible for the training and development needs of its officers. You are responsible for maintaining your professional competency and development. Although New South Wales Police recognises honest mistakes do happen, you should not act outside your level of competency and authority. If practicable, you have a duty to consult your colleagues or supervisors if in doubt about how you should exercise delegated powers or fulfilled duties.'

The NSW Police Code of Conduct and Ethics - 'Statement of Values' (as applying from October 2006 onwards) provides for the following values: · Excellence - having the highest professional standards and integrity · Trust - promoting community faith and confidence in their police · Accountability - acknowledging ownership and being answerable for your actions · Leadership - acting as a role model for the community and your colleagues

The NSW Police Code of Conduct and Ethics - 'Standards of Professional Conduct' (as applying from October 2006 onwards) states:

2. act with care and diligence when on duty … 4. treat everyone with respect, courtesy and fairness 5. comply with any lawful and reasonable direction given by someone in the New South Wales Police who has authority to give the direction

You did not display the highest standards of integrity in the manner in which you completed the records for your work on 10 March 2005 by not initially recording yourself as having taken T.O.I.L.

You have breached the NSW Police Code of Conduct and Ethics - Statement of Values (as in force at the relevant time). It stated:

Each member of the New South Wales Police is to act in a manner which: Places integrity above all…

In your written response you provide details of your experience with the New South Wales Police Force and the various locations where you have performed duties.

I note that you refer to an incident in July 1997 when you were a Probationary Constable and were required to report the conduct of another officer. I note that you also state that as a result of you reporting the conduct of this officer it ' was never confidential and unfortunately has followed you, in various forms, from station to station .'

Aside from this matter you describe in detail each occurrence that encapsulates your failure to complete the Remedial Performance Program. You describe your assigned mentor Detective Sergeant Evatt as being abusive and intimidating. You dispute the evidence of poor performance provided by Detective Sergeant Evatt. You also dispute the comprehensive account provided by Sergeant Evatt about your failure to meet the requirements of the performance agreement.

In regard to your absence from work on 15 February 2005 I note and accept your explanation that you were admitted to Gosford District Hospital with chest pains.

In regard to your inadequate preparation of witness statement in mid to late February 2005 you believe that Detective Sergeant Evatt elevated his involvement in this matter in a contrived attempt to have you appear in bad light.

It appears that you were on sick leave during this time and Detective Sergeant Evatt forwarded outstanding statements to the defence and followed up various inquiries and requests for information to assist the production of papers as required by the court. His involvement in this matter appears to me to be an essential requirement.

Throughout your involvement with your mentor while you were on a performance program I can see no evidence that you fully accepted any guidance or assistance. I believe that your attitude was aggressive, dismissive and you were unable to take advice. Evidence of your dismissive behaviour is also provided by your Commander and other senior officers who sought to assist you.

You continue to dispute the facts provided by Detective Inspector Jubelin in his report to the Police Medical Officer. You state that 'Detective Inspector Jubelin's report is erroneous as to fact and unqualified as to opinion'. In addition to this, you criticise a report provided by Dr Kirby, the Police Medical Officer. You provide that Doctor Kirby's report is based on false, misrepresented and erroneous material.

I do not believe that the reports from this senior officer and the medical practitioner are misdescriptions and exaggerations of the facts as you describe. Your response to my Notice has only provided further evidence of your inability to be consulted or to accept advice and directions. You have failed to comprehend the importance of the Commander's Warning Notice served on you in November 2004 and you have failed to meet the requirements of the Remedial Performance Program.

On 29 March 2007, you made an application for secondary employment. On 6 July 2007, your application for secondary employment was declined. At no stage were you informed that your application for secondary employment had been approved.

In your response to my Notice you admit that, during the period 4 June 2007 to 6 July 2007, you engaged in secondary employment as a credit controller. You further admit that this secondary employment was not authorised.

By commencing unauthorised secondary employment you have breached the New South Wales Police Secondary Employment Policy and Guidelines which state:

" Employees are not permitted to commence secondary employment until such time as they are formally advised that the application has been approved . "

I have taken into account all the details in your written submission in response to the grounds set out in my Notice provided by your legal representative. I can see no reasons of mitigation or explanation for your actions that would provide me with any basis not to lose confidence in your suitability to remain a police officer.

I expect and the law demands that New South Wales police officers will uphold their Solemn Oath of Office at all times. Our Oath requires all New South Wales police officers to act: professionally at all times, with ethics and integrity, and in accordance with the law. This is our sworn duty.

I want you to clearly understand, and I cannot stress too strongly, that I expect an appropriate standard of behaviour from all police officers and I expect them to adhere to the expectations of ethical and professional conduct, whether it is on or off duty.

I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force. I therefore remove you from your position as a police officer." 167 The first two paragraphs of the Statement of Reasons may be said to be introductory in nature. The third paragraph states that the reasons for the determination are comprised in the material that follows. There is then a reference to a number of grounds which are said to have been set out in the Commissioner's Notice and which are said to "refer to your conduct, integrity, performance and competence." I proceed on the assumption that the remainder of the material in the document represents the reasons given by the Commissioner for his removal of the applicant. Whilst that material refers in places to "conduct", there is no other attempt to explain which of the matters referred to relate to "conduct", "integrity", "performance" and "competence". There is no clue given as to whether or not the remainder of the material in the document is intended to refer to each of these matters differentially, some of the matters or all of the matters being "conduct, integrity, performance and competence." This has created difficulty for the applicant in the preparation of her case and, as will be seen, difficulty for this Commission in determining the proceedings. 168 Furthermore, the remainder of the material in the document commences in general terms by referring to "a number of issues", being identified "during 2004" regarding performance with specific areas of "record keeping, case management, teamwork and criminal investigation." There is no reference in the Statement of Reasons to what those issues were, they were not identified in the Notice issued by the Commissioner and there is no reference to them in the Commissioner's Confidence Submission bundle of documents. If, as may be assumed, these are matters which are intended to constitute "grounds" as forming the basis for the reasons for removal, they fail, in my opinion, to comply with what is intended by s 181D(4). Furthermore, their consideration by the Commissioner as reasons would constitute a prima facie denial of natural justice to the applicant because there was insufficient specificity to allow her to understand what they were and they were not raised with any specificity in the Notice to which the applicant responded. I interpolate that, although there was similar material contained within the Commissioner's Notice, for reasons that I have earlier set out I determined that that material must have been inserted by way of background information only. It appears, however, that these allegations have now been elevated to grounds forming part of the Commissioner's reasoning process. 169 As will be seen, the Commissioner does not carry out any weighting exercise in connection with these grounds so that neither the applicant nor this Commission can be informed as to the weight that the Commissioner placed on any of them. 170 The next matter referred to as a ground is the fact that the applicant declined to sign for the Warning Notice. However, there was a concession that the applicant "acknowledged the contents and the implications." Presumably, it was the fact that the applicant declined to "sign for" the document whilst acknowledging its contents and implications that provided a further ground for the Commissioner's reasons. 171 The next ground is that the applicant declined to sign the RPP in January 2005. However, what is not mentioned by way of reason is that the applicant nevertheless participated in the RPP, albeit that there is much controversy about the nature and extent of her participation and her performance under it. 172 There then follows an allegation that "during the period 1 February 2005 to 27 February 2007 you engaged in a continued pattern of inappropriate and unprofessional behaviour and conduct." There is no specificity of the alleged inappropriate and unprofessional behaviour and conduct. There are, later in the document, more particular references to the applicant's behaviour and conduct. However, it is not clear whether this most general and therefore unhelpful assertion as a reason is intended to stand alone or is intended to provide only some introductory material for what follows. This uncertainty creates, in my opinion, support for the conclusion that the Statement of Reasons document does not in its totality constitute reasons as required by s 181D(4). 173 The next eight paragraphs in the document also suffer from the same deficiency. In the main, they refer to matters "over a lengthy period" expressed in the most general terms. They are incapable, in my opinion, of constituting reasons that can be addressed by the applicant or by this Commission for the purpose of these review proceedings. 174 The next paragraph in the Statement of Reasons does refer to a particular incident, namely that which occurred on 10 March 2005 "by not initially recording yourself as having taken TOIL." I have previously dealt with this matter at some length. There must be some doubt whether the applicant did, indeed, incorrectly record the time that she had taken as time off in lieu, and in any event it was, on the evidence of Detective Sergeant Williams, a minor matter. I cannot agree that this incident demonstrates in any way a failure to "display the highest standards of integrity" as alleged. Its inclusion in the Commissioner's Confidence Submission documents and the manner in which it was so included has led the Commissioner, in my opinion, into error in describing this incident in this way and in including it as a reason for removal. 175 The next paragraph alleges a breach of the Police Code of Conduct and Ethics, presumably in failing to place "integrity above all…". The next six paragraphs refer to matters contained in the applicant's response document. Presumably it is the next paragraph, which refers to the Performance Program, that contains the reasons for removal. There is a reference to the applicant not having "fully accepted any guidance or assistance." There is also a reference to her attitude being "aggressive, dismissive and you are unable to take advice. Evidence of your dismissive behaviour is also provided by your Commander and other senior officers who sought to assist you." Again, the reasons are stated in generalities. It is of course true that there is ample evidence that the applicant was aggressive to and dismissive of other police officers and in particular senior officers. However, in the context of the applicant's participation in the RPP there are some matters, to which I have earlier referred, which cast some doubt on the conclusions reached by Detective Sergeant Evatt about the applicant and her participation in the Program. Given access to all of the evidence tendered in these proceedings, the opinion of Detective Sergeant Evatt concerning the "on my plate" incident, the applicant's efforts to obtain witness statements and prepare a matter for Local Court proceedings and her ultimate responses to his requests for information about her workload, cast some doubt about the critical opinion formed by Detective Sergeant Evatt about the applicant. These criticisms were relied upon by Detective Inspector Jubelin, were embraced by the Employee Management Branch in the preparation of material collected for the purpose of consideration of disciplinary proceedings against the applicant and found their way into the Commissioner's Confidence Submission documents upon which the Commissioner relied for the purpose of his consideration of the applicant's removal. Another difficulty with the generalisation that pervades this particular paragraph is that there is no quantitative or even qualitative description of the applicant's conduct and behaviour. If the paragraph is intended to convey as a reason that the applicant was at all times aggressive, dismissive and unable to take advice then, on the evidence before this Commission, that cannot be the case. If the assertions are intended to be applied in some more limited sense, then there has been a failure to identify this and, in this way, the assertion does not satisfy the requirement to give reasons contained within s 181D(4). 176 The next paragraph refers to a rejection by the applicant of material contained within a memorandum of Detective Inspector Jubelin to the Police Medical Officer and a criticism of Dr Kirby's report based on that material. Prima facie, the inclusion of this paragraph as a ground within the Commissioner's Statement of Reasons is indicative that the Commissioner has concluded that the disputation of these facts and the rejection of the report of Dr Kirby do, of themselves, constitute a reason for removal. If this is so, it is, in my opinion, an unusual reason for in effect dismissing an employee from employment. In general terms, every employee has the right to question the factual basis upon which assertions are made about him or her by a representative of an employer, particularly in a memorandum provided to a medical officer. I cannot see how the refutation of this material would constitute a reason for removal. 177 The next paragraph states that the Commissioner did not believe that the reports from Detective Inspector Jubelin and the medical practitioner were misdescriptions or exaggerations as asserted by the applicant. There then follows in the next sentence: "Your response to my Notice has only provided further evidence of your inability to be consulted or to accept advice and directions." This presumably is a different matter to that which is referred to in the previous sentence, because I do not understand how the two can be related. No clue is given as to how it is said that the applicant's response has provided further evidence of the kind alleged. In her response document, the applicant deals with the allegations levelled against her by the Commissioner. If she had said in the response that she declined to consult with others or to accept advice and directions, then this might constitute a reason for her removal. Otherwise, the general nature of the allegation contained in this sentence does not constitute a reason for the purpose of s 181D(4). 178 The last sentence of that paragraph is again in general terms. There is no suggestion as to how the applicant failed to comprehend the importance of the Warning Notice. The allegation of failure to meet the requirements of the RPP is just that, an allegation simpliciter. 179 The remaining four paragraphs deal with the secondary employment matter. For reasons to which I shall shortly refer, this is not a matter that on its own would justify removal. 180 For the reasons which I have given in discussing the Statement of Reasons document, I conclude that it does not constitute a document which is capable of being considered either by the applicant or by this Commission in determining these proceedings. 181 It would be unjust for the applicant to be removed on the basis of such a document, and I so conclude.

182 I have already determined that there has been a failure to comply with s 181D(3)(a) of the Act, which has rendered the decision to remove the applicant from the police force unjust. 183 I have also concluded that the Commissioner has failed to consider in the appropriate manner the applicant's response and that this has rendered the decision to remove her harsh, unjust and unreasonable. Furthermore, I have concluded that his Statement of Reasons is defective and this also renders the decision to remove the applicant unjust.

184 Not surprisingly, the parties had entirely differing views about what I shall consider as the "merits" of the applicant's removal, by reference to her conduct and behaviour as opposed to any consideration of the processes adopted by the Commissioner. 185 The applicant emphasised that the allegations made against her as contained within the Commissioner's reasons for removal and the grounds upon which he relied were long on generalities but short on specifics. Indeed, in connection with the specific events which were relied upon by the Commissioner, the applicant asserted that it was inappropriate for the Commissioner to do so or alternatively that the information about these incidents which was given to him was either incorrect or incomplete so that any reliance on them by the Commissioner would have created grounds for relief. 186 In the course of dealing with a number of these incidents and events I have made comment about the applicant's assertions and have indicated, with respect to some of them, that I agree with the submissions made on her behalf. For example, there must be some doubt about the ability of the Commissioner to rely upon the driving incident on 8 May 2003 and the emphasis placed on it in the Commissioner's Confidence Submission documentation. In the same vein, I am of the opinion that some of the specific matters reported upon by Detective Sergeant Evatt convey a more critical tone than is reflected in Detective Sergeant Evatt's own notes, to which I have earlier referred. The same comment would apply to Detective Sergeant Evatt's criticism of the applicant for having failed to pursue witness statements in connection with a Local Court matter and for referring to a matter as being "on my plate". In my opinion, the manner in which they are portrayed by Detective Sergeant Evatt in his reports to Detective Inspector Jubelin contain a degree of exaggeration in terms of the criticism levelled by him at the applicant. Furthermore, the TOIL incident and the "road rage incident" are, in my opinion, inaccurately and unfairly portrayed in the information given to the Commissioner as contained within the Commissioner's Confidence Submission. There are other incidents, some of which may be characterised in the same way and others not. However, overall, I conclude that there is significant material within the Commissioner's Confidence Submission documentation that does not reflect objectively the circumstances which relate to the particular incidents and which result in a less than favourable light being cast on the applicant than would otherwise apply. Other incidents are, in my opinion, of a more trivial nature and would not warrant inclusion within any material which in the aggregate would give rise to a decision to remove a police officer from the Police Service. I include, for example, the notation of the applicant lying down and smoking and the applicant losing her temper on one occasion with a fellow officer. There is evidence given in the proceedings to which I have referred, which indicates that both of those matters should have been considered as "closed" and not worthy of forming the basis, whether individually or in the aggregate, of any conduct justifying removal. 187 On the other hand, however, there is material that is indicative of the applicant displaying an attitude that rejects authority and that endeavours to reject the systems and processes within the New South Wales Police Service. In my opinion, the applicant acted inappropriately in the manner in which she dealt with a number of her superior officers. The documentation and evidence is replete with examples of this, many of which I have referred to earlier in these reasons for decision. She resisted the authority of the Local Area Commander, of Detective Inspector Jubelin, of Detective Sergeant Evatt, and many others. She was unduly argumentative and unduly resistant to directions and suggestions made to her on many occasions. Her professed refusal to speak to Detective Inspector Jubelin and others without an independent witness being present concerning matters which clearly related to the carrying out of her work duties was inappropriate and, arguably, ludicrous. 188 Although the Commissioner did not call the applicant's "working partner" while she was a detective to give evidence, there is evidence, albeit hearsay, that the applicant encountered many difficulties in working with colleagues. In so concluding I do, however, acknowledge that there were some witnesses in the proceedings who did say that they had no difficulty in working with her. 189 It is also necessary that I refer to the allegation made against the applicant about her secondary employment, which she readily conceded. I do not regard the fact that the applicant undertook unauthorised secondary employment in all of the circumstances which I have referred to as either individually or in the aggregate with other matters justifying her removal from the Police Service. The secondary employment was, in all the circumstances, innocuous and within the Commissioner's guidelines. It was approved by the Local Area Commander and was only rejected on what might be termed a "technicality" after an undue delay in its consideration by the relevant branch of the Police Service. 190 There are some cases in which the judgment of the conduct of employees is not a difficult task. These are obvious cases where there is a discrete incident, there is no controversy as to what happened and questions of motivation and the like are not relevant. The other end of the spectrum involves an assessment of behaviour or conduct over a period that does not involve any particular incident or incidents and where the waters are muddied by interpersonal relationships, which are less than satisfactory for one reason or another. These difficulties are exacerbated by the circumstances that attend the arbitral process. That is, whilst not strictly a court of law, nevertheless the Tribunal is confined, to a large measure, to a consideration of such evidence as is put before the Tribunal by the parties. The parties are, in turn, constrained by logistical and financial considerations in terms of what material and evidence ought properly be put before the Tribunal. Furthermore, the parties, in the context of these proceedings, have been compelled to undertake procedures and processes mandated by the legislative framework that applies, namely the Police Act. It is those processes and procedures that are under review before this Tribunal, such review to be undertaken in a manner which I have previously described. The Commissioner was required to formulate reasons and grounds upon which he determined that he had lost confidence in the applicant's suitability to continue as a police officer having regard to her competence, integrity, performance and conduct. The compilation of those reasons and grounds was undertaken substantially by the Employee Management Branch, which was endeavouring to assist Detective Inspector Jubelin in having the applicant removed, at the least, from the North Shore Local Area Command. The Employee Management Branch appears to have focussed on particular incidents which it thought could form the bases for the formulation of reasons and grounds. It was determined by the Employee Management Branch to focus attention on a breach of the "spirit" of the RPP. The manner in which the Program had been breached was formulated in general terms and accompanied by general allegations, the nature of which I have earlier set out. In relying on these matters, it was necessary to focus attention on such evidence as was available including the incidents which are contained within the Commissioner's reasons and grounds or are referred to in the Commissioner's Confidence Submission documentation. In seeking to create a dossier in this regard, there does not appear to have been any attempt by the Employee Management Branch to examine any of the incidents and to determine objectively whether, consequent upon such examination, they ought properly form the basis of grounds and reasons for a Notice and ultimate removal. They did not expose the incidents to the type of examination that occurred in the course of these proceedings. That examination was undertaken on the initiative of the applicant's legal representatives by utilising processes requiring the production of documents. These are all documents that formed part of the records of the Commissioner of Police and would have been available to the Employee Management Branch. I do not make these observations in a manner which is critical of the Employee Management Branch, but merely to highlight that a failure to look objectively at each of the incidents risks a finding that a more objective examination might have resulted in a different complexion being assigned to their relevance, as I have found in the case of a number of them. 191 The other difficulty that seems to me to arise in the circumstances of these proceedings is that the failure to comply with the spirit of the RPP was but one element of what was troubling Detective Inspector Jubelin and others about the applicant. It is clear, in my opinion, from the evidence of Detective Inspector Jubelin that his principal concern with the applicant was not as a person but as a personality type. Detective Inspector Jubelin set out eloquently and clearly his assessment of the applicant and her circumstances in a memorandum, the relevant extract of which I have earlier set out and which was made on 23 March 2006 (see [98]). Accordingly, it is the applicant's temperament, her manner, and all of the other matters which go to make up her personality which, in the opinion of Detective Inspector Jubelin, constitute the difficulties which he foresaw with the applicant's continued presence in the New South Wales Police Service. I readily acknowledge the applicant's submission that Detective Inspector Jubelin's assessment of her must have been based in part on what he had been told by Detective Sergeant Evatt and which was not either necessarily completely accurate or had been exaggerated, but nevertheless there are other matters which Detective Inspector Jubelin could have used as the basis for forming his opinion. Included within these are, of course, his own dealings with the applicant. Included within Detective Inspector Jubelin's assessment is a professed concern by other staff in the Local Area Command about working with the applicant. Of course, on one basis, the only means of litigating an assertion of this kind would be to engage in some evidentiary process involving all of the members of staff who worked with or who interrelated with the applicant and taking some form of evidence from them. To state such a proposition is to demonstrate that it would be counterproductive both to the Local Area Command and especially to the applicant. Having had the benefit of evidence from Detective Inspector Jubelin whilst he was principally subjected to cross-examination over some days, I accept that he fervently believes that his assessment of the applicant is correct and that the applicant was a most difficult person to deal with. On the basis of such evidence as has been elicited for the purpose of these proceedings, I am not persuaded that Detective Inspector Jubelin's assessment of the applicant's personality is incorrect. In view of the decision that I have reached as to the determination of these proceedings, I have deliberately stated my conclusion in this manner. There is, in my opinion, sufficient corroborative evidence from other witnesses to allow such a conclusion to be reached. 192 Arguably, the real concern of Detective Inspector Jubelin about the applicant was clouded by the way in which the Commissioner's Notice was drafted and the inclusion of a number of general assertions and incidents which distracted attention away from the main matter, which I have previously described in some detail. The public and the applicant's interest

193 I am required to have regard to the interests of the applicant and the public interest as referred to in s 181F(3) of the Act. The interests of the applicant in resuming her career in the New South Wales Police Service are obvious, not only as a means of deriving income but also in performing work which she professed, in the course of her evidence, to enjoy and which gave her satisfaction. There is a public interest in maintaining an efficient and effective police force, and the maintenance of the integrity of the police force is but one element of this overall public interest. I apprehend that "integrity" when used in the context of s 181F(3)(b) refers to matters of moral principle, character and fibre in the sense of "uprightness; honesty" as referred to in the online version of the Macquarie Dictionary. Although the Commissioner in these proceedings has sought to attack the applicant's integrity in connection with certain incidents, I am not persuaded for reasons, which I have already given, that those allegations have been sufficiently established for the purpose of these proceedings. 194 Importantly, also, for the purpose of these proceedings are the comments of Walton VP in Van Huisstede v Commissioner of Police (2000) 98 IR 57 where his Honour said at [219]: 219 In this case, there are many factors which the public may have an interest in upholding, including the interests of maintaining the integrity of the Police Service. Not the least of these will be the importance of ensuring that public officials who are conferred responsibilities by the Parliament, the exercise of which may affect the rights or reputation of individuals, carry out those responsibilities in a manner which is both just and reasonable.

His Honour's comments are pertinent to the circumstances of these proceedings. There is a public interest in ensuring that the Commissioner complies with the provisions of the Act in and about the initiation of action under s 181D.

195 It is obviously in the interests of the applicant that she should be reinstated in employment, or at least in meaningful employment within the New South Wales Police Service. Furthermore, it is in her interest that any financial loss that she has suffered as a result of her removal be rectified. A consideration of the public interest creates greater complexity. On the one hand this is not the case of a police officer who has committed a particular offence that reflects adversely on his or her integrity. Essentially, it is about the ability of a police officer to perform her duties principally by reference to her personality and her ability to interrelate with others in the New South Wales Police Service. I cannot detect from the evidence any matter that would reflect adversely on the applicant's ability to deal with the public and otherwise discharge her duties. On the other hand, however, the Police Medical Officer has expressed concern about the appropriateness of the applicant carrying out a full range of duties as a detective including being armed. I have received no evidence that would cause me to second guess the opinion of the Police Medical Officer nor, in the circumstances, would I be competent or capable of doing so. The bearing of arms is, in my opinion, a matter of significance in the capability of police officers to discharge their duties. Bearing a firearm dictates that in appropriate circumstances it must be used. In the same vein, the applicant has been assessed as not being capable or suitable to carry out the full range of duties as a detective and, at the time of her removal from the police force, was on restricted duties and subject to a RPP. Again, there is insufficient evidence for me to second guess such an assessment, nor would I be competent or capable of doing so. Given the significance of the work of police officers within the community, the public interest dictates, in my opinion, that accord must be taken of decisions previously made to restrict the applicant's work duties and in particular to restrict her entitlement to carry and use a firearm. I should add that I would come to the same conclusion even if I were not required to take into account the public interest. In my opinion, such a conclusion is one of common sense. The appropriate relief

196 There is a general discussion of the appropriate relief available and the manner in which the relevant provisions should be applied in the judgment of the Full Bench of this Commission in Budlong v NCR Australia Pty Ltd [2006] NSWIRComm 288. At [105] and [106], the Full Bench said: 105 It is trite law that reinstatement is the primary remedy. It is only where it is impracticable to reinstate an applicant that the other remedies available under s 89 of the Act may be applied: see Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [88]; Riley v Workcover Authority [2006] NSWIRComm 108 at [94]. 106 In Plummer v Stannard Bros Launch Service (2005) 145 IR 111 the Full Bench stated the position as (at 115): Reinstatement is the primary remedy under s 89 of the Act: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at [34]; Little v Commissioner of Police (No.2) (2002) 112 IR 212 at [88]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37 at [125]. Other remedies may only be ordered if reinstatement is considered to be impracticable. That requires the member of the Commission, in all cases where relief is to be ordered, to give active consideration to the practicability of reinstatement. Indeed, we consider s 89(5) requires a finding that it would be impracticable to reinstate the appellant prior to making an order for compensation and in the process of making that finding to give reasons: Entertainment Distributors Company Pty Limited and Anor v Burnard and Ors (1993) 49 IR 446 at 453. 197 The relief that is available in these proceedings is that which is provided for in Part 6 (Unfair Dismissals) Chapter 2 of the Industrial Relations Act 1996 ("the IR Act"). This is provided for in s 181G of the Act. Relevantly, s 89 of the IR Act is in the following terms: 89 Orders for reinstatement, re-employment, remuneration, compensation

(1) Reinstatement The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. (2) Re-employment If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable.(3) Remuneration If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order. (4) Continuity If the Commission orders reinstatement or re-employment, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal. (5) Compensation If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave. (6) When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment. (7) Threat of dismissal In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat. (8) An order under this section may be made on such terms and conditions as the Commission determines. 198 There is no evidence that it would be impracticable to reinstate the applicant. Accordingly, having regard to the findings which I have made to the effect that the removal of the applicant was harsh, unreasonable and unjust, the prima facie relief to which the applicant is entitled is reinstatement to her former position as described in s 89(1) of the IR Act. 199 The High Court of Australia considered the meaning of the words "reinstate" and "position" albeit in connection with provisions of the Workplace Relations Act 1996 (Commonwealth) in Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539. The relevant provision allowed the Australian Industrial Relations Commission to make an order requiring an employer to reinstate an employee by "reappointing the employee to the position in which the employee was employed immediately before the termination…". In the context of that legislation, all members of the High Court held that, in effect, that Commission was empowered to order reinstatement in the sense of putting the employee back in employment to the actual place occupied by the employee in the employer's employment structure. 200 McHugh J said that "To reinstate means to put back in place. In this context, it means that the employment situation, as it existed immediately before the termination, must be restored…so far as practicable, the employee is to be given back his 'job' at the same place and with the same duties, remuneration and working conditions as existed before the termination" (At [14]). 201 Hayne J, in describing what is meant by reinstatement by reappointing to a former position said: "…reinstatement by reappointing to a former position requires the recreation of the circumstances of employment that preceded the termination. The contractual nexus between the parties must be re-established. The terms and conditions of that contract must be the same. The employer must provide work to be done by the employee of the same kind and volume as was being done before termination…" (At [44]). 202 At the time of her removal, the applicant was a Detective Senior Constable on restricted duties. Those duties were imposed by her superior officers based on medical advice. Reinstatement to the applicant's same position as applied before her removal would, therefore, in my opinion entail reinstatement to the position of Detective Senior Constable on the same restricted duties as applied at the time of her removal. 203 If I am incorrect in this approach then I would, pursuant to s 89(8) determine that the position to which the applicant should be reinstated is that of Detective Senior Constable on the same restricted duties as applied to her at the time of her removal. 204 Reinstatement to such a position will allow the applicant to be reassessed by the Commissioner with respect to her suitability to remain on or be relieved of those restricted duties. Such reinstatement will also allow the Commissioner an opportunity to assess and consider the suitability of the applicant to remain as a police officer having regard to the matters of concern raised by Detective Inspector Jubelin about her personality and temperament to which I have earlier referred. Orders

205 I now turn to the orders that should be made in these proceedings. I have found that by reason of the processes adopted by the Commissioner in the formulation of the Notice given to the applicant, his failure to consider her written response and the inadequacies in the formulation of his Reasons for Decision that her removal was, as I have previously described it, harsh, unreasonable and unjust. 206 I am not satisfied that taking into account the three matters referred to in s 181F(1) that the applicant is unsuitable to continue as a police officer having regard to her integrity. I refrain from making any finding as to her suitability to continue as a police officer having regard to her competence, performance or conduct. 207 In all the circumstances, the appropriate relief is that the applicant be reinstated to her former position in the Police Service as at the date of removal. 208 I also conclude that it is appropriate in all the circumstances to make an order that the Commissioner pay to the applicant an amount of money calculated by reference to remuneration she would have received if she had not been removed up to the date of reinstatement. I have not received any submissions that would allow me to consider the quantum of an order under s 89(3) of the IR Act and I shall stand the proceedings over to allow the parties to reach some agreement about this or have the proceedings relisted for further submissions in the event that agreement cannot be reached. 209 The applicant has sought that I reserve costs, and I shall do so. 210 I make the following orders: 1) The Commissioner of Police is ordered to reinstate the applicant in her former position as a Detective Senior Constable on such restricted duties as applied to her on the date of her removal. The applicant's employment with the New South Wales Police Force shall be taken to be continuous from the date of her removal to the date of reinstatement. 2) I grant liberty to apply with respect to the quantum of the amount which should be payable by the respondent to the applicant under s 89(3) of the Industrial Relations Act 1996 calculated in accordance with my reasons for decision. 3) I grant liberty to apply with respect to costs.

AMENDMENTS HISTORY: 26/05/2009 - See decision of Justice Marks in this matter IRC 08/814 delivered 25/5/09 - Paragraph(s) 210

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