Blackadder v Ramsey Butchering Services Pty Ltd

Blackadder v Ramsey Butchering Services Pty Ltd - [2010] NSWIRComm 22 - NSWIRComm 2010 case summary — Zoe

We have not spoken with Harbourside management and are not aware of McGHEE's ongoing sick-leave intentions or if they are leading to McGHEE's exit from the police. If this was going to be the situation, further effort in this matter would be fruitless given the achievable outcomes. 54 On 14 December 2007, Mr McGhee filed a further Application for Secondary Employment with, what he contends was, a positive recommendation from his Superintendent, Superintendent Nolan. Superintendent Nolan wrote in her recommendation dated 17 December 2007: I have no concerns if Inspector McGhee only carries out an administrative role on behalf of the Family Trust. However, he now has two sustained findings for unauthorised secondary employment in the same tavern. Inspector McGhee informs me that he intends to sell the hotel after improvements have been made to the hotel. There is no time frame for this. There is no guarantee that Inspector McGhee will not work at the tavern in the future. 55 The applicant contends after the counselling in 2004, he did not, on a yearly basis, declare his interest as it was his belief it was "like buying shares in BHP". After 1998 he had set up a Trust. He thought he had to get approval and submit subsequent requests for approval where that involved working at the hotel but not if it was an investment and included in his understanding of an "investment" was the holding of shares and the receiving of distributions from the business. However, only the applicant and his wife were the beneficiaries of the Trust. The Trust, he contends, was specifically set up to deal with his involvement in the companies. He had discussed with his accountant his circumstance and had provided a copy of the policy to his accountant. Profits received from the hotel were to pay the debts owed and the property has increased in value. The applicant stated he did not make application for approvals for his secondary employment as he perceived the tavern as an "investment" yet Mr McGhee was counselled regarding his need for a secondary employment application and that counselling had no effect on his behaviour. 56 Mr McGhee asserts he cannot be held responsible for any delay in gaining approvals which went through the chain of command from the Harbourside Local Area Command, to the region office, to the Professional Standard Command then to Human Resources Service. However, the policy clearly states the onus is on the officer to ensure permissible conduct. 57 Mr McGhee continued to conduct his affairs at a management level at least for the tavern subsequent to the disciplinary action and that conduct was the same and, in many instances, even further in breach of that conduct for which he was counselled. 58 The applicant's involvement in Adam's Tavern was not simply an arms length investment as he has proposed. Subsequent to the performance counselling of the applicant, that is from 2004 to 2008, the applicant in evidence revealed he: · was involved in the marketing and publicity of the hotel on a consultative basis; · he "instructed" staff at the tavern about cheques received by the tavern, the staff contacted him at home, he gave staff instructions; · he held the relevant paperwork of the tavern at his home including all cheque butts, where the tavern records were kept; · he only occasionally worked at the tavern. He would attend and carry out non-operational duties such as cleaning the carpark, watering the garden and picking up glasses and plates; · he would occasionally put away stock for the hotel in the transition period (of ownership) between February and October 2007; · he authorised and signed cheques for winnings on the company gaming machines; · he was and remains authorised to sign company cheques for the trading account, the TAB account and poker machine accounts for Airsands Pty Ltd; · the statements of an account called Airsands Pty Limited t/as Adam's Tavern TAB account were sent to his home address; and · he performed the extra administrative functions of the hotel to facilitate the changeover of management over a few weeks. 59 As to the latter task, in the hearing Mr McGhee revealed in 2007, the joint-owner of the hotel, that is, his partner, sold his interest for $2 million to the Trust. Airsands Pty Ltd, of which the applicant remains the Secretary, was the borrower of the money to buy out Mr McGhee's former partner, Mr Adam Olaf. 60 The applicant held other positions in companies which had a relationship to either the Trust or the Tavern and was also a director of Adaptive Management Pty Ltd between 19 June 1998 and 27 April 1999. On the applicant's evidence, this company was formed for the purpose of the Trust. Further, the applicant conceded he was a director of Airsands Pty Limited between 16 February 1995 and 15 May 2002 which owned Adam's Tavern. Mr McGhee sought to downplay his involvement over seven years as a Director of Airsands Pty Ltd by stating he had that role for only a short period of time. On the evidence, the applicant never applied for nor registered, his directorship with Airsands Pty Ltd and he remains the Secretary of Airsands Pty Limited. 61 The applicant, further, conceded he had received additional benefits from Airsands Pty Ltd which benefits were not disclosed even in his 2007 application (filed after the investigation as to his interest began). He received the following additional benefits: (a) a credit card used for the following purchases on behalf of the tavern: fruit and vegetables, cleaning equipment, promotional items such as balloons, petrol for the courtesy bus, petrol and maintenance expenses for his wife's company car and his personal motor vehicle. He had held this card for four years;

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(c) a mobile telephone used for contacting the Trust accountant, the manager of the hotel and personal needs which he has continued to use since 2000 or 2001 when his use of a paid mobile telephone led to an adverse finding. The Applicant had declared "the mobile phone is being paid by myself". 62 Further, multiple bank accounts held by Airsands Pty Ltd (t/as Adam's Tavern) were sent to Mr McGhee. Mr Ghee also received money (namely, $781 per month) directly from Airsands Pty Ltd, into an account called "Mr Robert Bruce McGhee Family Superannuation Fund" and the fund had been receiving this payment for approximately three years. Accordingly, Mr McGhee was receiving an annual benefit of approximately $9000 from the Tavern which he never disclosed at any time to the NSW Police Force. Documents revealed Mr McGhee's level of involvement was far greater than he had revealed to the Police Force and those documents support in detail the significant financial benefits he enjoyed under the various financial arrangements he had put in place with various companies through the Trust. 63 It is relevant to note in September 2007 it was recorded the applicant had several vehicles registered in Air Sand's name parked at his home. 64 I accept Mr McGhee continued to enjoy benefits similar to and perhaps greater than those which were the subject of his counselling in 2002 and 2004. I accept he knew he held these benefits. He had clearly been counselled and was aware of his obligation to declare and to obtain permission under the secondary employment policy for these arrangements. I do not accept that he can be excused for this consistent breach of the Police policy because of his misunderstanding of the policy. The applicant, in his cross examination, was forced to concede he had failed to declare all the benefits he received and he had failed to disclose his interests in Airsands Pty Ltd and Adaptive Management Pty Ltd. 65 Mr McGhee relies upon evidence that after being the subject of the disciplinary conduct he had applied for permission for secondary employment but did not receive the approval and that should be seen as a mitigating factor. He had been to counselling on 8 January 2004. The policy clearly states approval was not to be presumed but was to be specifically given (cl 4.2) each year: 4.1 All Police Service employees desiring to engage in secondary employment must make prior application to do so, on the appropriate application form ...

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4.2 Employees are not permitted to commence secondary employment until such time as they are formally advised that the application has been approved. All approvals for secondary employment are granted for periods of up to 12 months only. (emphasis added) 66 The evidence reveals the applicant's involvement in Adam's Tavern was not that of an arms length investment. He performs management duties and occasionally still works at ground level performing duties as a barman. He gains many benefits from his involvement in this "high risk" enterprise. 67 The applicant reveals during the termination process, he made a further application which application was approved after his termination. He contends therefore, if there was a breach it should not attract termination given his circumstance has finally met with approval from the NSW Police Force. However, that proposition does not acknowledge the purpose of the policy which is to ensure there can be no conflict of interest in any police officer's activity within in a high risk industry. It may well be he was given permission after his termination following his 2007 application (which was filed during the investigation). However, his involvement in the Tavern is even greater, as revealed before the Commission, than that revealed to the Commissioner even in his 2007 application. 68 There were numerous separate breaches of the policy about which there has been no satisfactory explanation and the obligation was on Mr McGhee to meet his obligations under the policy. This is especially so in a circumstance when, as a Senior Inspector, Mr McGhee is required to implement the policy in respect to advising and overseeing the activities of junior officers. It is difficult to accept, given his years of unblemished service, Mr McGhee is a liar and dishonest. Rather, it appears, given he loved his life as a Police Officer, when his business venture met with success, he did not know how to handle it and despite numerous warnings and official advice he, at least from 1998 to 2007, failed to ensure he put his affairs in order with the NSW Police Force. At its best, the circumstance may be described as a man turning a blind eye or a man trying to ignore his circumstance. He seems to have adopted the view that he fell in under the exception of the interpretation of employees found in cl 2(c) of the policy and he determines his remuneration was obtained by a passive means. This was rejected by the NSW Police Force, who required and told Mr McGhee to obtain approvals. At [58] above there is an acknowledged list of Mr McGhee's activities, non of which could be called "passive". The NSW Police Force, aware of his circumstance, on at least on two formal and separate occasions gave him warnings but he continued to fail to meet his obligation. 69 I find the applicant, therefore, breached the Secondary Employment Policy by not obtaining prior approval for secondary employment in the years between 2002 and 2008 in breach of cll 1.1, 4.1, 4.2 and 4.3 of the policy. He also engaged in conduct which was "employment" within the meaning of the policy in breach of cll 2.1 and 2.2 of the Policy. He failed to disclose the myriad of lucrative benefits he received in breach of cl 6.3 of the policy; he failed to declare the interest of his wife (as an employee and beneficiary of the Hotel's profits) in breach of cl 6.4 of the policy; he accepted his directorships of Airsands Pty Ltd (between 1995 and at least 2000) and Adaptive Management Pty Ltd (between June 1998 and April 1999) in breach of cl 6.5 of the policy. 70 Further, on the objective facts placed before the Commission, Mr McGhee both worked at, and for, the Tavern and was "paid" for that employment by way of a continuing financial benefits. He received contributions to a superannuation fund, had access to a credit card for his use and enjoyed the use of motor vehicles. The fact is he received numerous benefits for his work on behalf of the Tavern. He was therefore in "paid" employment under the policy. He can take no comfort in the argument as to what was paid employment or employment under the policy given the facts revealed in evidence. 71 Further, I am satisfied that although the Commission has been given even more details of the financial benefits Mr McGhee has received, the Commissioner considered most of the above circumstances in his Reasons. On a merit basis as to this ground relied upon there was a basis for the Commissioner to consider termination.

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Procedural Deficiencies 75 The applicant contends there was procedural and statutory unfairness by the Commissioner in the procedure followed in reaching his decision such as to make the decision harsh, unreasonable and unjust. The applicant's counsel conducted, in the hearing, a minute examination of the process which led to the Commissioner making his decision to terminate the applicant's employment in the NSW Police Force. Mr Docking, on behalf of the applicant, cross-examined most of the officers involved in the procedures leading up to the decision of the Commissioner, including those officers and lay persons who dealt with the preparation of the Notice, the applicant's Response, the dealings of the Commissioner's Advisory Panel. The cross-examination addressed the detail and preparation of all documentation that went before the Commissioner and the conduct by the Commissioner and his advisors leading up to the decision. It was held in Reid-Frost: RELEVANT PRINCIPLES [6] The steps taken or not taken by the Commissioner prior to the removal of a police officer under s 181D (including the procedural steps required under s 181D(3) and (4)) are matters which are relevant to and significant in the assessment of an application made under s 181E of the Act and, in particular, as to whether a finding should be made that the removal was harsh, unjust or unreasonable pursuant to Div 1C of Pt 9 of the Act. [7] So much is clear from a consistent line of Full Bench authorities as to the provisions of Pt 9 of the Act (and predecessor provisions): Bigg v New South Wales Police Service (1998) 80 IR 434 at 451 (' Bigg '); Newton v New South Wales Police Service (1999) 87 IR 66 at 76-77 (' Newton (No 2) '); Little v Commissioner of Police (No 2) (2002) 112 IR 212 at 74-75 (' Little (No 2) '); Hosemans v Commissioner of Police (2004) 138 IR 159 at 106 (' Hosemans (No 2) '). Further, the Commission may examine the Commissioner's reasons, as Peterson J stated in Newton v Commissioner of Police (1998) 85 IR 119 at 133 ( 'Newton' ): "both on the basis of the means by which they were achieved and, if necessary, their substance". [8] Thus, the process undertaken by the Commissioner may result in a finding that the removal of a police officer was harsh, unjust or unreasonable for the purposes of Div 1C of Pt 9. [9] In Little (No 2) (at [74] - [75]) (including the adoption of the decision in Van Huisstede v Commissioner of Police (2000) 98 IR 57 at [193] - [196]) (' Van Huisstede ')), the Full Bench found that the adoption of an unfair procedure by the Commissioner, and particularly one deriving from a failure to adhere to the procedural requirements of Div 1B of Pt 9 of the Act, was both a relevant consideration and of significant importance (and a "vital consideration") in determining whether the removal of a police officer was harsh, unreasonable or unjust… [10] In this sense, and upon these principles, the Commission has emphasised that procedural failures, particularly those relating to the statutory requirements of s 181D(3) and (4), may play a marked role in the resolution of the questions requiring determination with respect to applications brought under s 181E. [11] It needs to be steadily borne in mind, however, the particular statutory context in which such observations as to procedural matters have been made by the Commission in considering the application for review under s 181E. These are as follows: (a) The challenge to the removal of a police officer based upon procedural grounds will not be finally resolved by a preliminary adjudication based upon those factors. For example, the Commission is not entitled to hear and determine "to finality the challenge to the removal based only on the matters referred to in s 181F(1)(a)": Newton (No 2) at 75. Rather, the role of the Commission is to "conduct a review of the merits of the decision of the Commissioner, to consider the whole of the circumstances of the matter in the way determined by s 181F and apply the statutory criteria in that situation": Newton (No 2) at 79. We agree with the Full Bench in Hosemans (No 2) (at [134]) that the review of a decision to remove under s 181D is to be a "fresh and independent review"; (b) The determination of an application made under s 181E requires a finding as to whether the removal itself was harsh, unreasonable or unjust not whether a particular procedure may be described as such, even though the adoption of an unfair procedure, as we may have observed, significantly contributed to that ultimate determination (see, for example, Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430 per Brennan CJ, Dawson and Toohey JJ); (c) The provisions of Pt 6 of Ch 2 of the Industrial Relations Act (1996) ('IR Act') have application, albeit modified, to reviews under Pt 9 Div 1C of the Act: Hosemans (No 2) at [101]. As was described by the Full Bench in Little (No 2) at [65], s 181G has "the effect of applying to proceedings brought under s 181E of the Police Service Act the provisions of Pt 6 of Ch 2 of the Industrial Relations Act in such a manner as to import the provisions of Pt 6 to the review proceedings..."; (d) The review proceeding will, thereby, be undertaken procedurally in a manner consistent with unfair dismissal proceedings ( Hosemans (No 2) at [104]) and adopt the jurisprudence of the Commission with respect to unfair dismissal proceedings ( Little (No 2) at [65]), except where the procedure and principles are expressly excluded by the Act; (e) These considerations need to be married with our earlier observation regarding the significance of procedural failures in review proceedings. First, the procedural issues will be one element of the resolution of the merits of the review, which may take on a greater or lesser significance depending upon the gravity of the failure and its affect on the opportunity for the police officer to receive a fair hearing… (f) In a little quoted passage from the decision of the Full Bench in Bigg (at [45]), it was made clear that questions of procedure including a consideration of the 'statutory mechanism' (then s 181B of the Police Service Act ) would be open for review (in proceedings brought under then s 246 of the Industrial Relations Act 1991) as an "exemplar of the industrial merit of the decision, as well as the general industrial merits of the decision" of the Commissioner… (g) There may be cases where the assessment of the merits of an application may result in a procedural failure, per se, rendering the removal harsh, unreasonable or … (l) …procedural failures will not of themselves necessarily (or often) result in an affirmative finding for an applicant under s 181E of the application: Bigg at 460, Starr at 140 , even though procedural failures may attract significant attention in review proceedings (of the kind earlier described), particularly by reference to the decision in Little (No 2); (m) Our final observation, in this respect, is that the review process is not in the nature of an administrative law review. The significance of procedural failures is to be weighed as part of the overall assessment of the application brought under s 181E(1): Hosemans (No 2) at 107. Principles of administrative law may well inform, however, considerations as to whether the removal was harsh, unreasonable or unjust, as they direct attention to whether a step taken or omitted by the Commissioner has resulted in an unfairness which attracts one of those epithets…

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We also apply for the time to respond to the Notice to be suspended until such time as copies of documents are provided and a further 21 days have elapsed. 78 On 15 February 2008, the New South Wales Police Force responded stating all documentation relied upon had been served and denied the extension of time for Mr McGhee to respond. On 22 February 2008, Inspector Rod Pratt of the Process Unit received a call from the solicitor representing Mr McGhee, again asserting the need for a time extension as Mr McGhee was undergoing medical assessments. A time extension was granted until 21 March 2008. This time limit was again extended to 23 April 2008. The timetable was not met. 79 On 24 April 2008, Inspector Anne Sullivan of the Process Unit met with the Commissioner, providing him with all documentation relating to Mr McGhee. The outcome was a further extension of time "In order to afford Mr McGhee abundant fairness...". The same day in April a facsimile document was received from solicitors seeking a further extension of time until 9 May 2008. A response from Mr McGhee was received on 30 April 2008. On 1 May 2008, the day following receipt of Mr McGhee's response, the Commissioner determined he had lost confidence in Mr McGhee and directed the s 181D Order for termination be issued to him. 80 However, the applicant, as part of the fabric of this merit review, challenges the fairness of the above process leading to the Commissioner's decision. The applicant contends there were procedural defects in the process, such that the decision to terminate cannot stand. He contends the Commissioner failed to provide source documents; failed to consider all the information and materials available; failed to follow police policy; failed to record the full details of the conduct of the internal affairs panel. The process was also unfair in that there was no section in the Commissioner's Confidence submissions for particular mention of mitigating circumstances; a Commander's comment; nor an analyst examination of the Response. The procedural matters relied upon reveal failures which failures, he asserts, makes the decision of the Commissioner unsound. · Documents 81 The applicant contends he should have been provided with source documents on which reliance was placed for the preparation of the Commissioner in Confidence Submission including transcripts of many of the interviews conducted with him where, he contends, at the time of the interviews he was "under the influence of both alcohol and medication, suffering depression and anxiety and was not fit to be interviewed at the time." He also sought documents related to the investigation of the circumstances leading to his Driving Under the Influence charge, including all the decision-making documents which led to an inference he left the hospital to avoid a breath test, should have been produced. The applicant also required computer entries kept by the service related to his Driving Under the Influence Charge. For example, he contends the reports of the field officers who pulled Mr McGhee over should have been produced (namely, the police computer record system). 82 I accept the submission of the NSW Police Force that such documents were not relied upon by the Commissioner. I reject the submission the applicant was denied fairness in such a circumstance. The applicant had to meet the allegations which were collated into the Commissioner's In Confidence submission and those details as interpreted and recited in the Notice to Show Cause. · The Commissioner In Confidence Submission 83 The applicant further submits that there was an allegation in the Commissioner's In Confidence Submission which was not true, namely, that "the investigation also revealed that as a Director of Airsands Pty Ltd Inspector McGhee was entitled to a motor vehicle and mobile telephone". I reject this submission. This comment in the Commissioner's In Confidence Submission was made in the context of the applicant's history and his activities in 2001. Mr McGreal, Accountant, had confirmed in his letter the applicant was a director of Airsands Pty Ltd until May 2000. (He in fact remained registered as a Director under ASIC until 2002). The findings of the 2001 complaint made in 2004 revealed the Applicant was a Director and had received the benefit of the free use of a mobile telephone and vehicle. Further, on the applicant's own account in 2004 he agreed that he had received a motor vehicle from Airsands but said that he paid for the mobile phone. On the applicant's own admission in the proceedings he admits that his mobile telephone account in fact continued to be paid for by Airsands Pty Ltd. I do not accept this was a misleading statement in the Commissioner's In Confidence Submission. · The Notice 84 An issue of concern to the applicant was the failure in the Notice to mention the investigation cleared him of any fault in leaving the hospital when the Driving Under the Influence. This fact, namely, the finding of the investigator in my view should have been referred to in the Notice and in the Commissioner's consideration in his Reasons. However, there is no evidence the Commissioner did cast that inference. The fact is the applicant pleaded guilty and was convicted for the offence. I do not accept this failure is such that the conclusion as to the fact of his conviction for Driving Under the Influence should be discounted. 85 Therefore, I am satisfied the procedure followed, leading up to the Commissioner's Reasons, has revealed no failure such as to affect the reasoning of the Commissioner. I do not accept the asserted failure to provide source documents; the assertion there was an incorrect statement in the Commissioner's In Confidence Submission; the suggestion of a negative inference could or was cast as affecting the established fact would not have materially altered the facts as relied upon in the Notice. The respondent followed fair procedure up to the preparation of the Reasons for the determination. · Failure to Comply with Statutory Requirements 86 Section 181D(3) and 181D(4) provides: 181D Commissioner may remove police officers ... (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.

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Section 181D(3) 87 In the asserted statutory failure (under s 181D(3)(c)), namely a failure to consider the applicant's written submission, reliance was placed by the applicant upon a minute examination of the step-by-step procedure followed by the NSW Police Force in taking the applicant's Response to the Commissioner. The applicant contends the Commission should infer what the Commissioner did, or did not, or could not, do at a one-hour meeting (where Mr McGhee's termination and other matters were considered by the Commissioner) is evidence of an unfairness. 88 As to the attack mounted by the applicant on the asserted procedural unfairness under s181D the respondent contends there was full consideration by the Commissioner of all relevant material; there was full and fair consideration of the Response; any procedural defect if established, would not have materially affected the outcome; all reasons were adequate. The respondent generally contends there was no procedural irregularity such as to render the decision harsh, unreasonable or unjust. 89 The NSW Police Force received Mr McGhee's 63 page Response late on the afternoon of the day before the decision was made. The matter, however, had been before the Commissioner previously and there had been extensions granted to the applicant to prepare the Response. The applicant contends there could not have been the requisite consideration given by the Commissioner of all the information and materials both in favour and against the officer, as well as a process of ascribing weight to particular facts or materials. It was submitted, despite the content of the 63 page submission (67 including attachments), only three comments were added to the Show Cause Notice which fact demonstrates there was no proper consideration by the Commissioner. It is contended no changes were made to the draft Decision after receipt of the submissions on 3 May 2008. These objective facts are relied upon to demonstrate the inadequacy of the consideration given to the Response of the applicant by the Commissioner. 90 In this further minute examination of the police procedure conducted in the hearing by the applicant, it was revealed the Employment Management Branch received a copy of the applicant's Response on 30 April 2008. On 1 May 2008, Senior Sergeant Forrest, an analyst within the Employment Management Branch, considered the Response and prepared an Employee Memorandum summary, from which was then prepared a "Yellow" Report for the Commissioner. Annexed to the summary "Yellow" was the Notice, supporting documents and a copy of the applicant's Response. Evidence revealed, in this case, the "Yellow" report summary went to the Commissioner but not the Analyst's analysis of the applicant's response. Superintendent McCarthy, Director of Employee Management, attended the Commissioner's Advisory Panel meeting with the Commissioner on 1 May 2008. The Commissioner after/at the meeting signed the "yellow" report with the words "order to proceed". 91 A considerable part of the evidence was directed to conjecture as to how much time could have been spent considering the Response of the applicant by the Commissioner. The applicant contends in considering the applicant's matter within an hour period (along with others) that this was an insufficient period of time for Mr McGhee's Response and its effect to be considered by the Commissioner. Speculation as to the time in which the Commissioner may have spent on Mr McGhee's matter and the length of the submissions he had to consider leads to an unhelpful and unnecessary speculation by the Commission. 92 I reject, therefore in a Review that it is necessary for the Commission to consider details, such as: there were no minutes kept by the Commissioner's Advisory Panel meeting which both recommended the Notice and also recommended termination to determine if a decision was procedurally unfair. The evidence led revealed in fact at a meeting of the Commissioner's Advisory Panel, the applicant's termination was recommended to the Commissioner although the recommendation was not supported by Mr McGhee's Superintendent. Such a fact does not alter the recommendation and such information simply detracts from the substance required in a Review. Further, the argument that an Analyst's report did not go to the Commissioner but rather only a summary document went forward in the form of the "yellow" is the type of minute details referred to in Reid-Frost as an "arid detail" that does not assist in answering the relevant questions. Matters such as the time taken at a meeting, the number of matters considered, the number of pages before the Commissioner, the failure to use benchmarking statistics related to each charge, are not matters which assist in the determination whether a Police Officer was given a fair hearing and whether there was procedural fairness in the procedure followed. 93 The Commission has to review the nature of the allegations and whether they warranted termination and whether in his reasoning process, the Commissioner was fair and if not procedurally fair, whether the decision to terminate should be, on review, overturned.

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94 I accept the respondent's submission the applicant is seeking to invoke a degree of prescription upon the respondent's processes which is antithetical to the legislative scheme. Whether there is satisfactory evidence to persuade that the Commissioner considered the applicant's response submission is the issue. Guidance for any such consideration is found in Reid-Frost: [33]… the question of whether or not the Commissioner considered the submission of the respondent in accordance with the requirements of s 181D(3)(c) depended on what the Commissioner had written in his reasons for deciding to remove the officer on confidence grounds. This is a matter about which an objective evaluation may be undertaken by the Commission in a review brought with respect to an application made under s 181E. [34] We do not exclude the possibility that there may, from time to time, be other documents or statements which bear upon the question of whether there was a procedural failure in relation to the consideration of the written submissions provided by an applicant under s 181E to the Commissioner of Police. However, that question is not answered appropriately, in our view, by the somewhat arid examination of whether the Commissioner had allocated a particular period of time for the relevant assessment. The legislature should not be taken as contemplating, by the provisions of s 181D(3)(c), that the Commissioner would be subjected to, essentially, a time study in order to ensure, as the sub-section contemplates, that the police officer was given a fair opportunity to be heard in his or her defence. [35] We note, in this respect, that we do not consider that the decision of the Full Court of the Federal Court of Australia in Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia and ors (1996) 67 FCR 40 ( 'Minister for Aboriginal and Torres Strait Islander Affairs' ) assists the respondent. In that matter, the Full Court upheld the judgment of Carr J in State of Western Australia & Ors v Minister for Aboriginal and Torres Strait Island Affairs & Ors (1985) 37 ALD 633. The Full Court found, inter alia, that his Honour was correct in concluding that a declaration made by the Minister was invalid due to a failure to consider representations made under s 10(1)(c) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ('the Commonwealth Act') (at 63). Carr J had based this finding, in part, upon there being an absence of sufficient time available for the Minister to consider that matter. However, Carr J's findings, in this respect (given in a judicial review of the Minister's decision), were also based upon a conclusion that the Minister's Statement of Reasons (under s 13 of the Commonwealth Act) indicated, by their own terms (or by the omission of appropriate content), the absence of proper consideration of the representations. (The Full Court seemed to place less reliance upon that consideration but, nonetheless, had regard to that factor.) [36] We are not here engaged in judicial review or findings as to the validity of an Act, per se , but, as we have noted, the ultimate question concerns whether the procedure adopted contributed to the removal being unfair. More significantly, as we will soon develop, the statutory scheme for reviews under the Act makes the Commissioner's Reasons for Decision the centrepiece of any assessment as to whether there occurred any procedural unfairness relevant to a review. Questions about whether the Commissioner adequately considered a submission need to be essentially addressed in that light. [37] We would finally observe under this heading that the Commissioner may be taken as reaching his decision along a continuum extending to those assessments giving rise to and found in the Notice. This points to the danger of applying a test based on time in assessing whether the Commissioner had adequately considered a submission received from a police officer. 95 Evidence revealed the Commissioner was directly provided with the applicant's Response. While the Commissioner, in this particular circumstance, was not provided with the Analyst's memorandum, he was provided with the "yellow" which drew some conclusion from all the documents. The "yellow", I am persuaded, must be viewed as an advisory document for the Commissioner. I accept the respondent's argument it is "a remarkable submission" of the applicant that what should have happened is that the Commissioner should have been provided with the Analyst's Summary of the Response as well as the applicant's original Response and the yellow. As stated by Inspector Sullivan, the Commissioner takes into account the officer's Response not someone else's interpretation of the officer's Response. 96 Evidence revealed the Commissioner had before him the Commissioner In Confidence Submission related to Mr McGhee with supporting documents on at least two occasions, 31 January 2008 and 1 May 2008. 97 In this matter there was thorough consideration given to the applicant's Response in the continuum of the consideration given to the applicant's circumstances. The Response was given consideration by the Analyst then summarised in the "Yellow"; then all the documentation was received at the Commissioner's Advisory Panel and by the Commissioner. The Commissioner made his decision. I reject the proposition the Response of the applicant was not given a proper consideration. This procedure is not indicative of any failure of the Commissioner.

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The applicant then attached an application for medical discharge dated 28 February 2008 and a medical report of Dr G Morgans. 100 As to the effect of Mr McGhee's stress and ill health, both in the Notice and in the Reasons (in relation to the grounds relied upon), Mr McGhee's submissions as to the state of his health were given consideration by the Commissioner. The Commissioner considered in the Notice under the Driving Under the Influence ground that, notwithstanding the health issues raised, the fact of the conviction was a breach of the Code of Ethics. In relation to the same plea as to the effect his health had on his failure to declare his full interest in the tavern, the Commissioner held this was nonetheless a breach of the Secondary Employment Policy and, in relation to the Warning, there too was a submission related to the effect his health had on his inaction and the submission was, in fact, accepted and led to the nature of the disciplinary procedure which followed, namely: a warning. 101 The Commissioner, in the Reasons, also considered as to the Driving Under the Influence charge, that the applicant, during the investigation into the charge had provided details of his health problems, particularly related to blood pressure and his work stress but concluded there was a breach of the Code of Ethics. Also, in the Reasons, it was acknowledged that in the investigation as to the failure to gain approval for secondary employment, Mr McGhee had raised in his defence, personal "stressors" and other health problems but the Commissioner, while referring to this circumstance, still concluded as to Mr McGhee the breach of the policy was also a breach of the Code of Conduct and Ethics. 102 I am satisfied the Commissioner was aware that Mr McGhee raised in mitigation to each offence the state of his health and this issue was given consideration by the Commissioner. The applicant cannot infer that the Commissioner did not take into account the various stresses and his particular health circumstance before determining to terminate on the merits. There is a suggestion in the submissions that the consideration of the Commissioner as to Mr McGhee's health and the effect it had on his behaviour was unfair. The fact that the Commissioner failed to accept the explanation of the applicant is not evidence of a procedural error. 103 The Commission is invited to infer that the Commissioner overlooked submissions or failed to give them consideration in his reasons. The act requires the Commissioner to take into account, in making his decision, the written submission of the applicant. The evidence in the applicant's Response, not referred to by the Commissioner and upon which submissions consideration was required by reference in the Reasons was, the applicant contends: that the applicant sought medical discharge and an application with supporting medical documentation was not considered; the applicant had suffered significant injuries in the course of his employment and that evidence was not addressed; eleven references were provided and of relevance and not given consideration. 104 The argument is pressed the Commissioner did not refer in his Reasons to the submission that, given the applicant's years of service and his history of work injuries, there was a request from the applicant to allow his application for medical retirement to advance to a conclusion before the termination decision. This submission was further developed at the hearing in a second proposition, namely: the Commission should in all the circumstances, find the decision of the Commissioner harsh because of the applicant's 28 years of good service. 105 On 15 May 2008, the date of termination, Mr McGhee was on sick leave due to hurt on duty injuries related to his back and neck. However, Mr McGhee was performing full duties (except for the Court order restricting his permission to drive following the Driving Under the Influence charge) up until he received the Notice to Show Cause in February 2008. 106 The applicant most emphatically argues he raised in his Response he wished to seek medical retirement and, given his years of "good service", that submission should have been given consideration by the Commissioner and referred to in the Reasons. While I have accepted the Commissioner was well aware of and gave consideration to the applicant's circumstance in relation to the stresses both personal and professionally placed upon Mr McGhee at the time of each event (the Driving Under the Influence, the Secondary Employment inquiry and the Search Warrant) and while I accept his medical conditions were given consideration at the time the decision to terminate was made, I do not accept in the reasoning of the Commissioner that there is evidence of a balancing of the interests of the applicant (as the Commission on Review must do) who has had 28 years of service with the NSW Police Force along with the consideration of the seriousness of the breaches he was charged with (in the public interest). Had the Driving Under the Influence charge been an isolated incident, or even taking into consideration the search warrant event with the driving offence, I do not believe in the weighting of both the public interest and those of the applicant that both circumstances would, nor should, have led to the termination of Mr McGhee. 107 However, the full circumstance surrounding the secondary employment breach were not revealed until the hearing before the Commission. Mr McGhee has, and does, enjoy a significant financial benefit through his connection to the Tavern. His wife enjoys an income from the Tavern. I do not accept the Police approval for his secondary employment, granted after termination, can be a positive consideration in his favour now that all the particulars of the benefits he has been enjoying and continues to receive have been revealed which benefits were not fully declared to the NSW Police Force at the time the last approval was granted. The breach of the secondary employment policy is a most serious breach and was a breach over a considerable period of time and continued after Mr McGhee was on notice of his breach and had been counselled. I reject the proposition the delay in granting approvals in both 2002 and 2008, while they reveal the weight of bureaucratic decision making, can affect the determination as to the seriousness of Mr McGhee's breach of secondary employment policies given his conduct in the knowledge he was operating in an identified "high risk" industry and had been given warnings. Mr McGhee only once tried to right his affairs (with the letter in 1998). He made no proper effort to ensure his financial circumstance was fully revealed when in his later applications (each triggered by police inquiries into his affairs) and he further failed to ensure those applications were approved. The onus was on Mr McGhee. 108 The failure to give a reason in the Commissioner's Decision why the application of Mr McGhee to terminate was not delayed to allow his medical retirement application to be assessed, it was asserted, was a statutory breach. Further, the applicant contends in the circumstance his loss is so significant as to make the decision to terminate harsh. 109 I have accepted the applicant gave a number of years good service to the NSW Police Force, although it is difficult to accept that service was "impeccable and unblemished" as the last ten years of his 28 years of service he was almost always serving while in breach of the Secondary Employment Policy. The applicant, because of the failure of the Commissioner to give a reference in his Reasons for his application to delay the termination process and alternatively because the Decision was harsh, asks for the following Findings and Orders: (i) The removal was harsh, unreasonable or unjust (ii) The applicant be reinstated with no loss of continuity of employment effective from 15 may 2008 (iii) The Court accepts the applicant's undertaking to resign effective from no later than 23 July 2008 (permitting his s 10B(2) superannuation allowance to commence from 24 July 2008 in the event that he meets the s 10B(2) certificate medical discharge process). (iv) The applicant remains on paid sick leave from 15 may 2008 to the date of his resignation (v) The respondent facilitate payment to the applicant of the non-renewal benefit under the Crown Employees (Police Officers Death and Disability) Award 2005 for both the applicant's fixed terms of employment. 110 What the applicant is seeking, is access not only to a superannuation benefit of an annual allowance, rather than a preserved benefit, but also, a one off non-renewable benefit payment for a hurt on duty injury paid in accordance with the determinations made under s 10. Therefore, two other statutory rights are affected by the decision to terminate: rights under the Police Regulation (Superannuation) Act 1906 and Crown Employees (Police Officers Death and Disability) Award 2005. Each must be read in conjunction with the provisions of the Police Act 1990. 111 Mr McGhee asks for these orders in order to pursue medical retirement. He asks the Court to consider his termination in the context of his rights under the Police Regulation (Superannuation) Act 1906, and especially the effect of s 10B(1) and (2). Relevantly, the section states: 10B Medical examination of disabled member and determination of whether hurt on duty (1) An annual superannuation allowance or gratuity must not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 .

[25]

Therefore, after removal (or resignation), an application could still be lodged by Mr McGhee under s 10B(2) of the Police Regulation (Superannuation) Act. Mr McGhee has filed such an application and it was received on 27 July 2008. 114 The applicant can and has made application pursuant to s 10B(2) of the Police Regulation (Superannuation) Act for what is in effect a "retrospective" medical discharge. If he can obtain a certificate from the Commissioner (and it is of relevance he was on "hurt on duty" sick leave at the time of his termination) that at the time of his resignation or removal he was incapable, due to certain infirmities of discharging the duties of his office as a member of the NSW Police Force, the applicant would receive an annual superannuation allowance of a larger percentage of his attributed salary of office, backdated to the date he lodged the application for the allowance or such earlier date as Superannuation Trustee Corporation may determine (if Superannuation Trustee Corporation is satisfied that there are exceptional circumstances that merit it doing so (s 9A(4) of the Act)). 115 Should the applicant fail to be medically retired he does not receive superannuation allowance, but rather, the "preserved benefit" provided by the SAS Trustee Corporation which would be of a significantly lesser amount than a medical discharge benefit paid for the rest of his life. 116 The applicant submits in the event he fails to have one or more of his infirmities classified as hurt on duty (either by the Commissioner of Police or on appeal to the District Court) he will suffer such a significant financial loss between the "preserved benefit" provided by the Trustee Corporation on removal and the superannuation payment of a percentage of his former salary, indexed for life. This circumstance, he contends, reveals the harshness of the decision where he loses, aside from his wage, significant benefits. In such a circumstance the applicant contends the sanction of termination was too severe a penalty and he should be given an opportunity to be medically retired. 117 Linked to the decision as to his medical fitness is a further right to a lump sum called the "non-renewable benefit" under the Crown Employees (Police Officers Death and Disability) Award 2005. Relevantly, s 65(d) provides: Any Fixed Term Appointment terminated, either through the death of the Commissioned Officer, the medical retirement of the Commissioned Officer where application is supported by the Commissioner or upon promotion in accordance with Part 6, Division 3A of the Police Act 1990, shall be deemed to be a completed Term for the purpose of accrual of the benefit. 118 Of relevance also is cl 65(e) of the Award which provides that: In circumstances where a Commissioned Officer is "removed" from New South Wales Police under the provisions of s181D of the Police Act 1990 (as amended), there will be no eligibility for the Non Renewal Benefit including previously completed Terms. However, in circumstances where a Commissioned Officer, under the provisions of s181E of the Act, applies for a review by the Industrial Relations Commission of any such "removal" on the grounds that it is harsh, unreasonable or unjust, and such application is upheld by the Industrial Relations Commission, then no matter what the remedy, such Commissioned Officer retains eligibility to the Non Renewal Benefit.

[26]

The Award provision for officers covered by it therefore acknowledges the effect of a termination and that there are two separate and distinct procedures. 119 Mr McGhee had fixed term appointments. However, if his appointment is terminated but on a medical retirement his application is supported by the Commissioner, the applicant may, even after termination, because of the effect of s 181D(8) of the Police Act, be able to argue he was eligible to receive the Non-Renewal Benefit under the Award (for all of his completed fixed term appointments together with the current full fixed term appointment, the completion of which is included by medical discharge). The applicant, therefore, may still retain rights to the Non-Renewal Benefit even though he has been dismissed despite s 65(e). 120 The public interest is a relevant consideration both in assessing whether the removal of an officer was harsh, unreasonable or unjust and in determining the appropriate relief to be granted if the removal is found to be so: Van Huisstede v Commissioner of Police [2000] 98 IR 57 at [111]. 121 The evidence as to his medical circumstances reveals the applicant attended work until February 2008. He gave no evidence that he was not able to perform the full range of his duties, apart from not driving. At no stage in 2007 or 2008 did he assert he was unfit for duties resulting from the medical conditions set out in his application for medical discharge. Where Dr Bornstein, in 1994, describes the injury as a temporary impairment of function which should settle "virtually completely". A report from Dr Evans, dated 27 February 2001 refers to a permanent impairment to his neck of 20 percent. The only specialist the applicant saw between September 2007 and 16 January 2008 (the date of issue of the Notice) was Dr Nogajski in September 2007. No report or reference is made to Dr Nogajski in the applicant's application for medical discharge. The applicant had not sought any advice from any specialist about medical discharge until February 2008, after he had received the s 181D notice. He conceded he might have tolerated his ailments had he not been served with s 181D notice. Dr Harrison, on 19 June 2008, in making his assessment of the applicant's condition was limited to x-rays done in 1999 and a report of Dr Evans in 1998. Dr Harrison does express a view as to the degree of limitation on Mr McGhee's capacity to perform his duties without restriction. The report of Dr Morgans recites his medical/work history and opines as to his ongoing physical injuries. 122 Relevant to the exercise of the discretion, there is no probative medical evidence before the Commission even, considering Dr Morgans' evidence which summarises his medical history and updates with an opinion as to Mr McGhee's physical limitations, that would support a conclusion that the applicant is in fact unfit to perform any work. Whilst it is not for the Commission to determine whether the application for medical discharge has merit, the bona fides of the applicant in making this application for medical discharge is relevant to the question of whether the decision was harsh.

[27]

Re-Instatement 123 Further, the power of the Commission to order reinstatement of an employee should always be exercised with caution: Slonim v Fellows (1984) 154 CLR 505 (at 515). This is particularly the case where a public position is involved (Van Huisstede v Commissioner of Police at [120]). 124 The power to reinstate is limited to restoring a person to his or her former position in the workforce not for such other compensatory purpose: (s 89(1) of the Industrial Relations Act). The extent of reinstatement power was considered by the High Court in Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539. It is noted in that case the High Court was considering the former s 170CH of the Workplace Relations Act 1996 (Cth) which is in terms similar to s 89(1) of the Industrial Relations Act 1996. It was found by the Court "reinstatement" required the undertaking of actual work, its purpose is not purely to allow the payment of a wage. Callinan and Heydon JJ said at [73] - [77]: [73] The first question which the appeal raises is whether, under s 170CH the Commission may make an order for reinstatement, the effect of which is to require an employer to provide the employee with work, and, if it may, whether the order that was made here was of such a kind. The next question is whether, if the Commission may, and has made such an order the Federal Court should have made an order for its enforcement. As will appear, each of these questions should be given an affirmative answer. [74] Section 170CH should not be read in the narrow fashion adopted by the majority in the Full Court of the Federal Court. To do so is to treat the word "position" as used in the Act as a formal position only, a title, or something in the nature of an office, entitling the person reappointed to it, to its emoluments and nothing else. Nor does anything turn on the use of the word "reappointing". An employee carrying out work of the kind being carried out by the appellant before his dismissal would not in ordinary language be regarded as undertaking work pursuant to an appointment. [75] All of the language of the relevant section must be given meaning. The use in s 170CH(3) of the word "reinstate" is significant. Section 170CH(3)(a) and (b) describe the way in which the reinstatement may be effected. "Reinstate" literally means to put back in place. To pay the appellant but not to put him back in his usual situation in the workplace would not be to reinstate him. The words "reappoint" and "position" should not be read in any restricted way. They are intended to apply to a very wide range of workplaces and certainly not to a particular officer or officers. It was therefore within the power of the Commission to make such an order as would contemplate or require that the employer provide a reappointed or reinstated worker with actual work to do. [76] In our opinion it is also at least implicit in the reasons for the order of the Commission at first instance that the appellant would be provided with actual work for him to do. This appears from the passages which dealt with the appellant's fitness to perform the work, and the conclusion that the appellant could do that which he had been doing before his employment was terminated. We do not take the Commissioner at first instance to have deliberated upon these matters only for the purpose of ascertaining whether the termination was in any way justified. He was also doing so for the purpose of considering whether reinstatement was appropriate, and whether upon its occurrence the appellant would be likely to be able to do the work which he had formerly been doing. Before making an order the Commission has to be satisfied of the matters referred to in s 170CH(2). Those matters included the effects (in the future) on the viability on the employer's business if an order (for reappointment) be made (s 170CH(2)(a)), the remuneration that the employee would have received if his employment had not been terminated (s 170CH(2)(c)), and any other matters that the Commission might consider relevant (s 170CH(2)(e)). With respect to the first of these, the Commission made the relevant finding that the operational requirements of the respondent's business would not be affected by the restoration of the appellant to his previous position. [77] In any event it is almost unthinkable that the Commissioner would have made an order that the appellant be reappointed had he thought that the appellant would either not be able to perform, or would not be allocated actual work by the respondent for him to do. The order made by the Commissioner should be read as Moore J in dissent in the Full Court preferred to read it, as an order intending that the appellant be reinstated, and that he be given work to do of the kind which he had done in the past.

[28]

An interesting question arises in the application of this authority, namely, if an applicant is re-instated but at the time of termination he was on sick leave, does he go back on sick leave? In such a circumstance the medical retirement application under s 10B(1) would be enlivened (see also Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47). 125 Even if I was satisfied and the Commission is not so satisfied that the Commission has the power to reinstate to his position but for the purpose of medical discharge, it is a discretionary remedy. I find it neither necessary, nor appropriate in the case. The NSW Police Force treats the right of its officers under s 181D and the right to make application for medical discharge as two distinct and separate legislative rights. The procedural integrity of each legislative right held by a police officer is thereby maintained. Medical discharge applications and s 181D proceedings are dealt with on their own merits. In circumstances where an officer is subject to both processes, the two processes run concurrently until one of the processes is finalised. Mr Docking contends this makes the procedure for medical retirement unfair. However, the Commissioner is not required under s 181D to consider an officer's ability to make a medical discharge application in making his decision to remove an officer. Further, in accordance with s 181D(8) of the Police Act, the 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. There is no unfairness demonstrated by the separation of these processes, nor has there been any evidence the s 10B(1) application was delayed or influenced in any way by the process followed in the termination decision under s 181D. Further, the assertion as to the harshness in the effect of the termination is mitigated given the applicant still retains rights to a possible non-renewable benefit under the Award, obtained through his s 10B(2) application supported possibly by a Commissioner's certificate. 126 While I consider, given Mr McGhee's years of service should have been given consideration by the Commissioner, this failing is not a sufficient basis to conclude the removal was harsh, unjust or unreasonable. As held in Reid-Frost: [46] The failings which have been identified by the respondent in this case in relation to the Reasons for Decision (including some other matters relating to competence, conduct and performance) were not such as would, of themselves, ground a sufficient basis to conclude that the removal was harsh, unjust or unreasonable. ... [67] ... 1. … In this context, it is not appropriate to treat the requirement to 'consider' as an 'imperative statutory obligation' such that a failure in that respect should be treated, per se¸ as vitiating a decision to remove under the Act, irrespective of the extent and consequences of any departure from the statutory requirements.

[30]

Conclusion 127 The applicant was charged, pleaded guilty and was convicted of a serious driving offence. He concedes this fact and properly expresses his remorse. I am satisfied further on the evidence, the applicant breached the secondary employment policy over a considerable period of time by engaging in a high risk industry for financial benefit without making the appropriate declarations and despite being previously investigated and reprimanded for such conduct and counselled as to his activity and declaratory obligations. He ignored, as a senior officer, police policy and processes. I am satisfied he lacked candour with respect to his financial and beneficial interests in the Adam's Tavern, Blacktown both to the NSW Police Force and in the preparation of his case. There was an attack made on his honesty. He, in evidence, did not accept responsibility for his actions related to his dealings with the NSW Police Force as to his activities with the Tavern but rather continues to assert once he organised and then declared the Trust, he had no further obligation. Thus he continues to assert, ignoring that in 2002 and 2004 he was counselled, he had made the appropriate declarations. Further, as an Inspector of Police, Mr McGhee served in a most senior and responsible position in the NSW Police Force which makes his actions in relation to his failure to observe the secondary employment policies even more serious. I find the breach of the secondary employment policies read with the Driving Under the Influence offence conviction and the search warrant warning was conduct so aberrant to the Police Code of Conduct and Ethics as to attract termination of the employment. I find the termination was in the circumstance, not harsh. unreasonable or unjust. 128 I do not accept that the loss of a benefit for injury sustained in the employment is a matter which affects the decision of the Commissioner to terminate Mr McGhee's employment. The right to these payments are under a different legislative scheme. While I accept, the Commissioner, in his Reasons, failed to refer in his consideration to Mr McGhee's long service, I do not accept, even taking into account Mr McGhee's 28 years of service in the NSW Police Force, this fact can distract from the seriousness of the breaches relied upon and therefore the merit case relied on by the Commissioner to terminate is upheld. Termination is, in my view, a very sad end to what could have been held to be a lifetime of successful service in the NSW Police Force. These incidents could be looked at as occurring all around the same period of time and just a bad time for Mr McGhee. Mr McGhee seems to have in his young life, begun with a determination for hard work. He sought secondary employment as a barman and turned that hard work into a successful business venture with much financial success. More credit to him. His Police Record before the Driving Under the Influence charge reveals a fairly good record of service, but for some reason he continually chose to avoid his obligations related to his conduct within what he knew was a "high risk" industry. He argues his conduct supports the proposition that he conducted his venture with integrity as evidence by his own complaint to police where he recognised money laundering activities. This example simply demonstrates Mr McGhee saw his involvement in the Tavern as a separate obligation from that obligation he held to the NSW Police Force. It is as though he turned a blind eye to the interconnection between his two interests. But it was such a blatant breach over such a long period of time of the secondary employment policy. He had a number of warnings yet did not comply with the required procedure. Evidence has revealed he never fully declared the financial benefits he enjoyed. I do not accept that the character evidence can persuade and tip the balance in this case. While I accept the applicant is a good man and a fine parent and served for many years in the NSW Police Force, for over the last 10 years he served, perhaps well, but in defiance of the secondary employment policy. Not only did he not comply with the policy, as the facts as established before me demonstrate, he also persistently failed to declare to the NSW Police Force the full truth as to his involvement. I accept he breached the Police Code of Conduct and Ethics. In such a circumstance I reject the applicant's submission the Commissioner's decision to terminate was harsh, unreasonable or unjust.

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