Briginshaw v Briginshaw

Briginshaw v Briginshaw - [2007] NSWIRComm 76 - NSWIRComm 2007 case summary — Zoe

[9]

1 This is an application by Craig Eric Allchin (the applicant) for a review of an Order made by the Commissioner of Police (the Commissioner) pursuant to s181D(1) of the Police Service Act 1990 (the Act) which Order removed the applicant from the Police Service of New South Wales (the Service). 2 The proceedings are governed by Division 1B of Part 9 of the Act. Section 181E of the Act provides a police officer may apply to the Industrial Relations Commission of New South Wales (the Commission) for a review of an Order removing a police officer from the Police Service on the grounds that the removal was harsh, unreasonable or unjust. 3 By operation of s181G(1) of the Act, the provisions of the Industrial Relations Act 1996 (the IR Act) apply to the application for review, subject to some stated limitations in the same way as those provisions apply to an application brought under Part 6 of Chapter 2 of the IR Act. Relevantly, s181 states: 181D Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from NSW Police 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 NSW Police. (5) The removal takes effect when the order is made. (6) (Repealed) (7) Except as provided by Division 1C: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this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 NSW Police 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 NSW Police. (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.

[10]

181E Review generally (1) A police officer who is removed from NSW Police 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). 181F Proceedings on a review (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 NSW Police, (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 NSW Police 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 NSW Police, 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 Ac t 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.

[28]

In accordance with Section 181D(3)(a) of the Police Act 1990, I hereby give you Notice that I am considering your suitability to continue as a police officer, taking into account your conduct , on the basis of the following grounds: 1. On 9 June 2003 at the Penrith Plaza Shopping Centre while off-duty and under the influence of alcohol, you misused your office as a police officer by producing your police identification when you inappropriately intervened in an altercation between security personnel and your brother-in-law, Michael Rigo. In doing so you have brought discredit to the New South Wales Police and have breached the NSW Police Code of Conduct and Ethics (Private Conduct) and contravened the Police Service Handbook (Conduct and Public Expectations) and (Off-duty Conduct) . 2. On 5 October 2003 at the Kingswood Sports Club, while off-duty and under the influence of alcohol, you misused your office by producing your police identification when requested to leave licensed premises. You also behaved inappropriately towards licensing police who were in attendance at the premises. In doing so you have brought discredit to the New South Wales Police and have breached the NSW Police Code of Conduct and Ethics (Private Conduct) . 3. On 18 October 2003 at Mazepa Crescent, Penrith, while off-duty you misused your office by declaring that you were a police officer when dealing with a neighbour about his manner of driving. You acted in an unprofessional manner when speaking to this neighbour and failed to take immediate action when your brother-in-law, Michael Rigo, began using offensive language. In doing so you have brought discredit to the New South Wales Police and have breached the NSW Police Code of Conduct and Ethics (Private Conduct) and contravened the Police Service Handbook (Conduct and Public Expectations) and (Off-duty Conduct) . 4. On 22 September 2003 you were verbally advised by Detective Chief Inspector Randall in a telephone conversation that your approval to engage in Secondary Employment was withdrawn. You were also informed by way of a formal letter that was forwarded to you at your business address at 12 Butler Crescent, South Penrith. On your admissions, together with the results of the investigation it was evident that you engaged in Secondary Employment between September 2003 and December 2003, after your approval was withdrawn. In doing so, you have breached the NSW Police Code of Conduct and Ethics (Secondary Employment) and have clearly contravened the Secondary Employment Policy and Guidelines. 5. On 23 December 2003 you participated in an Electronically Recorded Interview with Chief Inspector Randall in respect to you engaging in unauthorised secondary employment. During the interview you admitted to working for a number of Real Estate Agencies.

[65]

Background 14 Evidence revealed the following chronology. The serious issues raised in this case make it necessary to consider, in detail, the full five years of the applicant's employment history with the Police Service. Further, this work history has had to be collated from Police Service records tendered, ad hoc, during the hearing. Records such as the applicant's sick leave file, his personnel file, the applicant's file in the Healthy Lifestyles Branch and in the Rehabilitation Branch, through the various medical reports held on a number of files, including claims lodged and from leave/injury etc records. It has been a difficult task to collate all the material from various disparate records to glean the applicant's work history. This circumstance arose as the applicant required for cross examination witnesses from the Police Service who were involved in the inquiries and investigations or simply were the keepers of records which records were provided to the applicant or produced at the hearing and were related to the decisions taken and investigations conducted by the Police Service. 15 The applicant left school at the age of sixteen. He had always wanted to be a police officer. He attended many TAFE education courses including basic numeracy and literacy courses in order to obtain the skills needed prior to making a successful application to enter the Diploma of Policing Practice. The applicant was a carpenter prior to entering the Police Service. He had his own successful maintenance business. 16 On 12 May 1999, the applicant enrolled at the Police Academy in Goulburn for training. 17 On 16 August 1999, an incident report was submitted in regard to the applicant's attitude given he had expressed a number of inappropriate views in tutorials. Issues such as: how to react to unfounded complaints; guidelines for the use of police batons with emphasis on non-strike areas such as the head; the use of interpreters. For example, the applicant had expressed the following views as to the use of interpreters: "They come to this country. They should know the law and be able to speak English before they are allowed to come" or on the use of batons he expressed the view "the head" would be the most effective place for the use of a baton. These are but two examples of the recorded attitudes which caused his lecturers at the Academy concern. The applicant was sent to counselling regarding these attitudes. 18 On 7 July 1999, when at the Academy in Goulburn for two months, the applicant was involved in an incident which occurred at the Bar of the Academy. The incident related to his behaviour and was alcohol related. A female was refused service at the Bar of the Academy. Following her failure to be served, the applicant purchased alcohol and supplied it to the female student. Both were asked to leave the Bar and refused to do so. Security officers were called and the applicant was argumentative. 19 On 2 August and 17 August 1999, following an interview with the applicant, the Manager of Education Services wrote to him regarding the incident in the Bar, informing him that he could no longer remain as a resident in the Academy. He was informed a reference, both to his coming under notice by the licensee and his "unsupported version of the events the following day" were, in a letter, being forwarded to the Manager of Employment Services regarding "his future suitability for future employment". 20 On 14 October 1999, questions were raised about the applicant's medical history declaration form, which form had been completed when he made his application for employment with the Police Service. In his declaration form, the applicant said he had received psychological counselling and had "suffered from anxiety" and that he had "received compensation in 1997". The applicant was advised: The police medical officer has noted from your medical history declaration form that you have undergone counselling for anxiety. It will be necessary for you to obtain a report from your treating doctor regarding the above-mentioned, detailing the date and nature of the original condition, any treatment given, current state and prognosis.

[67]

The report was forwarded for consideration as to "the suitability of the applicant for police employment." Within five months of the applicant's enrolment at the Academy, therefore, his suitability for the Police Force was challenged. 22 On 17 November 1999, the Senior Constable at St Mary's Local Command reported on the applicant's field placement in his region. He opined the reports from other police who served with the applicant during his field experience were such as to "highlight the applicant's unsuitability to be a member of New South Wales Police Service". There were six specific examples given of the applicant's failure to properly perform in the field placement. The Academy officers also added to this report noting: . . . EDO was quite insistent that interviewing Allchin about the issues raised would serve no purpose as Allchin was overwhelmingly unsuitable. 23 On 13 December 1999, Human Resources and Development, Education Service reported to the Manager, Employment Services and recommended the applicant not be offered employment in the New South Wales Police Service: The applicant is not a suitable applicant for police employment and should be advised as soon as possible so that he can consider other options. The applicant's record was marked: "Failed Trimester Two, field experience". 24 On 6 January 2000, the applicant was, however, further counselled as to his performance and attitude and it was determined by the Manager of Employment Services to give him another chance. 25 On 13 January 2000, the applicant, having failed his field placement, commenced another field placement at the Mt Druitt Local Area Command. 26 On 31 January 2000, the applicant received a satisfactory "Evaluation Improvement Placement Review" from Mt Druitt. 27 On 12 May 2000, the applicant was sworn in as a member of the NSW Police and commenced employment as a Probationary Constable. He was placed at the Mt Druitt Local Area Command. 28 Therefore to summarise, while at the Police Academy, the applicant had been taken out of the Academy's residential college due to an alcohol related incident and that his explanation was found unacceptable. His attitudes towards the community were challenged; concern had been expressed as to the ethical nature of his attitudes; he had failed a field placement; a view had been expressed that he did not listen to advice nor take guidance; a recommendation was made that he was not a suitable candidate for the service yet he was given a further trial field placement, which he passed and was then sworn in as a Probationary Police Constable. 29 In May, June and July 2000, the applicant was recorded as having days off work for various reasons, including a "motor vehicle accident" off-duty and reported "Common acute illness" and "Cold/Flu." The certificates were from his General Practitioner, Dr Fong. 30 On 8 August 2000, while on-duty, Senior Constable Peter Robinson and the applicant were called to attend a domestic incident. The report by Constable Robinson of the incident (the COPS report) stated: The defendant was finally followed along Luxford Road, where he was riding along the footpath. Police then drove to a position in front of the defendant, and pulled into a driveway. The defendant was forced to ride into the front yard of 158 Luxford Road. Constable Allchin then immediately got out the passengers side of the police vehicle. The defendant was then approached, at which point he got off his bicycle and pulled a knife from his person. The defendant then motioned the knife in the direction of Constable Allchin, and moved towards him. At this time Constable Allchin was about three meters away from the defendant. The actions of the defendant caused Constable Allchin to fear for his safety and take action by moving away from the defendant, and back towards the police vehicle. The knife was observed to be about 25 to 30cm in length.

[69]

He anticipated, in his application, he would work mostly from 9am to 5pm on rest days and at weekends. 35 On 12 May 2001, the applicant, after one year of service as a Probationary Constable, was confirmed as a Constable in the NSW Police Service. 36 On 14 and 21 May 2001, the applicant took further sick leave for "common acute illness/virus cold/flu." 37 On 25 May 2001, the applicant was granted approval for secondary employment. 38 On 1 August 2001, the applicant reported a further work injury when he was "spat upon" while on-duty. 39 On 21 August 2001, the Staff Administration Officer at the Mt Druitt Local Area Command received a memorandum from the employment office noting the applicant had time off work on more than five occasions in the prior 12 months and it was suggested there should be a discussion with the applicant as to his sick leave absences. The Officer was asked to "ascertain if special circumstances exist, chronic illness or an ongoing health pattern". 40 On 15 December 2001, the applicant was counselled as to his poor performance when on-duty. Failures addressed included his failure to properly record incidents in the COPS reports. Such failures were recorded as "bordering on incompetence if not neglect". It was recommended "the Constable be placed on a Remedial Performance Agreement and that he not be placed in any position of senior person on a car crew". It was noted the applicant had been spoken to about matters of a similar nature on an informal basis before the written report. The applicant was, therefore, given a placement out of frontline duties and a restriction was placed upon him to ensure he was not in a responsible policing role. 41 On 21 December 2001, the applicant took further sick leave. 42 On 27 December 2001, the applicant attended Penrith RSL Club whilst off-duty. Whilst playing a gaming machine, he was seated alongside another club patron who was with her female friend. The applicant, it is asserted, was continually thumping the buttons on the machine and swearing. The applicant had a payout on his machine and realised that the amount on the receipt was incorrect. The applicant called the attendant and the mistake was rectified. The patron, Ms Hebb states: "When the attendant walked away he turned to me and said "Lucky I am a copper, I could have her charged"

[78]

51 On 12 May, 12 June, 24 June, 11 July, 22 July 2002, the applicant took further sick leave generally for "common acute illness" or "cold/flu". 52 On 16 May 2002, the applicant was granted part-time employment of 36 hours per week and working on a fixed roster. This was granted on his application to assist his responsibilities as a father. It was a short term arrangement. 53 On 2 July 2002, the applicant's Remedial Performance Review was extended for a further three months due to many incidents of unsatisfactory work and performance reviews at the remedial placement. 54 On 25 July 2002, the applicant was given a short secondment from the Trainee placement for Guidance Counselling concerning the "treatment to be accorded to homosexual persons." This referral arose from the Penrith investigation and the use of the word "lesbos." 55 On 26 July 2002, a counsellor of the Drugs and Alcohol Unit with the Police Service Healthy Lifestyles Branch to whom the applicant was referred for an assessment for alcohol dependence (as recommended on 24 April 2002 as a result of a complaint investigation) concluded there was no evidence the applicant was dependent on alcohol but it was noted the applicant consumed alcohol in a "binge pattern" at least once a week. 56 On 22 August 2002, the applicant failed to keep a follow-up appointment with the Healthy Lifestyles counsellor regarding his alcohol abuse. 57 On 28 October 2002, the Commander at Mt Druitt contacted the Rehabilitation Branch about the applicant. The Rehabilitation Branch's file on the applicant begins on this date. 58 On 20 November, 2 December, 5 December, 11 December, 21 December, 20 December 2002 the applicant reported further injuries to his employer. On each occasion his report mentioned an injury to the left wrist saying there was "a scuffle with an offender (which) aggravated an original injury on 20 November 2002 and a ganglion arm." 59 On 2 January 2003, the applicant, who had been on sick leave from 20 December 2002 was rostered to attend work. He failed to attend. He returned to work some time at the end of January 2003. 60 On 21 April 2003, he reported an injury to his right index finger during an arrest. 61 On 9 June 2003, the applicant was at the Penrith Plaza Shopping Centre with his brother-in-law. Security Officers were called to speak to his brother-in-law who had been observed hitting and kicking a telephone booth. The applicant abused the security guards and revealed he was a police officer. He admits he was drunk at the time. 62 On 10 June and 23 June 2003, the applicant did not attend work and took further sick leave. Two certificates were presented by the applicant for these dates. One certificate said he was fit for light duties, the other certificate revealed he had fractured his right ankle and foot and was totally unfit. They were certificates from different doctors in the same practice. 63 On 7 July 2003, the applicant was interviewed regarding the Penrith Plaza incident. Then, on 17 July 2003, the applicant was interviewed for an internal investigation. Further interviews were conducted on 21 July 2003 and 7 August 2003. 64 On 12 August 2003, the applicant produced a medical certificate for "anxiety" from Dr Fong. This was the first time anxiety was raised in any report. 65 On 6 September 2003, the applicant commenced long term sick leave. 66 By 8 September 2003, however, the applicant had exhausted all leave entitlements including sick, annual leave and rest days. 67 On 9 September 2003, Dr Fong (the applicant's General Practitioner) issued the applicant with a medical certificate with a diagnosis of "severe anxiety and alcohol abuse" and gave him leave up until 23 September 2003. 68 On 11 September 2003, while on leave, the applicant made a workers' compensation claim claiming he was injured from "numerous events accumulative and for stress and psychological injury." He was referred to the Rehabilitation Section of the New South Wales Police Service by the Police Association with the notation "Long term abuse, numerous events, cumulative death threats on the job, assaults and -, mental depression, severe anxiety and alcohol abuse." 69 On 12 September 2003, the Rehabilitation Branch of the Police Service, sent a facsimile to Dr Fong saying that the applicant: . . . expressed a desire to see a psychiatrist who knows about policing. I have given him the name of a psych who used to be a police officer. His name is ... and his address is -.... Craig will see you...for a referral.

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73 On 22 September 2003, the applicant was sent a letter to inform him his approval to engage in secondary employment was withdrawn. The applicant asserts he did not receive the letter. Detective Chief Inspector Randall, Acting Local Area Commander, Mt Druitt informed the applicant over the telephone on 22 September 2003 of the withdrawal of his approval to perform secondary employment. 74 On 23 September 2003, as to the claim for physical and psychological damage, the Commander at Parramatta Transit wrote to Mr S. Christey at the G.I.O as follows: To: Simon Christey From: Philip Watson Date: 23/9/03 Craig Allchin was temporarily transferred to Parramatta from Mount Druitt for 5 months + has now returned to Mount Druitt 21/9/03. It would appear that the long term incidents go back to his position at Mount Druitt. He only put in the claim while here at Parramatta. P Watson 75 From the above correspondence it appears the applicant continued to work with the Transit Police, when not on sick leave, from 22 March 2002 to 21 September 2003, some one and a half years. 76 On 24 September 2003, a medical certificate from Dr Fong was presented for time off for "anxiety". 77 On 5 October 2003, while off-duty, the applicant was ejected from the Kingswood Sports Club where he attended again with Ms Maher and his brother-in-law. The applicant fell off a stool because of a broken leg. Sue Gunning, Supervisor at Kingswood Sports Club, asked the applicant to leave the club after forming the opinion he was intoxicated. The applicant produced his Police Badge to Ms Gunning, Senior Constable Field and Senior Constable Robinson, both of whom were Licensing Police from St Marys Police Station. They escorted the applicant out of the club premises and as they were walking towards the foyer, the applicant turned towards Senior Constable Field and allegedly said: You are nothing but simpletons and St Marys Police are simpletons as well. 78 Senior Constable Paris attached to St Marys Police attended the scene at the request of Senior Constable Field. When questioned by Senior Constable Paris, the applicant said: "What another one? I am already being investigated by Mt Druitt". Senior Constable Paris was of the opinion that the applicant was "moderately to well affected by alcohol".

[82]

They discussed the need to develop a return to work programme. The Rehabilitation Officer then contacted an officer at the Healthy Lifestyles Branch and reminded them of the applicant. 80 On 18 October 2003, at Mazepa Avenue in the applicant's neighbourhood street, a neighbour, who had driven his car at great speed down the street in which the applicant lived, was approached by the applicant and his brother-in-law. The applicant asserts he was not drunk. Police were called by the neighbours. It was asserted there was unacceptable language and behaviour exhibited. 81 On 20 October 2003, the applicant attended again at the Healthy Lifestyles Branch which had been contacted by the Rehabilitation Officer. He was offered hospitalisation for alcohol issues. He had stopped working in August 2003. 82 On 21 October 2003, the Rehabilitation Officer referred the applicant to the Healthy Lifestyles Branch again. At that stage, the applicant stated he was not well enough to return to work. 83 On 20 October 2003, another Alcohol and Other Drug Counsellor of the Police Service, interviewed the applicant and reported on 24 October 2003. She made an assessment from the applicant's history and his alcohol intake. She determined the applicant's average weekly alcohol intake was above that recommended by the National Health and Medical Research Council for a low level of risk to health. The applicant was given advice on the recommended intake levels and tips for drinking in moderation. He was also offered in-hospital treatment but he stated he wished to try to reduce his intake through his own efforts. 84 On 27 October 2003, a further certificate from Dr Fong gave leave for the applicant on the grounds of "alcohol dependency and stress". 85 On 10 and 11 November 2003, the Police Service conducted surveillance on the applicant which revealed he continued to perform secondary employment. He was not performing police duties and was on sick leave at the time of the surveillance. His permission to perform such work had been withdrawn. 86 On 12 November 2003, the Police Service had photographic evidence of the applicant carrying out maintenance work, sealing wall joints. 87 On 14 November 2003, a further certificate from Dr Fong recorded "anxiety and alcohol dependence". 88 On 6 December 2003, the applicant was informed of the internal investigation results from the inquiry into the Kingswood Sports Club incident. The report states: It is proved on the balance of probability that constable Allchin misused his office by producing his police identification badge to Sue Gunning at Kingswood Sports Club on 5 October 2003 in an effort to influence her decision to have him leave the club due to intoxication. In relation to this issue I make an Adverse Finding.

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91 On 23 December 2003, the applicant attended an electronic interview regarding the Mazepa Avenue incident. He argued he was not under the influence of alcohol at the time. He agreed he produced his Police Badge. He denied there was an abusive tone to any conversation he had with the driver of the speeding car or his family. 92 Also addressed at the interview was the secondary employment still being undertaken by the applicant. He denied receiving the 22 September 2003 letter and did not recall the content of the conversation with the Detective Chief Inspector Randall. He agreed he was intoxicated at the time of the conversation. He refused to provide information as to his clients when requested to do so at the interview as he asserted the police had approached one client already and informed them he was a police officer. This, he asserted, posed a threat to the safety of both himself and his partner. He agreed he had, while on sick leave on occasions performed maintenance work and his company sent invoices for that and other work. 93 On 23 December 2003, the Rehabilitation Branch spoke to the applicant and recorded the applicant who in conversation revealed he had consumed 10 stubbies the evening before, and revealed generally that he drunk about 13 stubbies a day. He said he recognised he had a problem. 94 On 28 December 2003, Dr Fong issued a certificate saying the applicant needed to continue his secondary employment and should work in a less stressful area than Mt Druitt. 95 On 2 February 2004, Dr Fong issued another certificate regarding "depression and anxiety". 96 On 15 March 2004, a further certificate was issued from Dr Fong for anxiety and depression. 97 On 8 April 2004, a Rehabilitation officer visited the applicant. She noted he was continuing to drink. She recommended the Healthy Lifestyles Branch make a follow-up call. 98 On 24 May 2004, a Rehabilitation Officer telephoned the applicant's General Practitioner, Dr Fong, who revealed he had not seen the applicant "for months." 99 On 1 November 2004, the Rehabilitation Officer telephoned Dr Fong again. Dr Fong revealed he had last seen the applicant in April 2004 and then not again until 22 September 2004. Dr Fong and Dr Choat (in the same practice) both expressed concern that they were worried and the applicant was "unstable due to post traumatic stress disorder". Dr Fong, on inquiry, agreed the applicant had not been referred for specialist treatment or counselling for his problem. 100 On 11 November 2004, the Rehabilitation Officer wrote to Detective Chief Superintendent Hudson, the Area Commander of the Mt Druitt area since mid July 2004. She informed Detective Chief Superintendent Hudson of her talks with the applicant, that he had not contacted the Police Service Drug and Alcohol Counsellor at Healthy Lifestyles and that he had not been referred for specialist treatment, and that he had not sent in medical certificates and had not been to see his General Practitioner, Dr Fong. 101 On 3 December 2004, Detective Chief Superintendent Hudson, wrote to the applicant that he had not produced any certificates since 14 April 2004 and Detective Chief Superintendent Hudson directed the applicant to produce any such certificates within two weeks. 102 On 20 December 2004, Detective Chief Superintendent Hudson made an appointment to meet with the applicant on 24 December 2004. Detective Chief Superintendent Hudson noted "my suspicion is that he is still engaged in secondary employment despite previous directions to cease." Detective Chief Superintendent Hudson spoke to the applicant and noted: ... medical certificates had not been received from him since 14 April 1004. He stated that he had them. I informed him that unless he provided them to his employer, me, he would not be paid for his periods of absence as we had no way of confirming his illness and absences would be considered unexplained. An appointment was made for 3pm 24/12/04 for me to meet with him at his him. He would not make it earlier as he indicated he had 'commitment's. My suspicion is that he is still engaged in secondary employment despite previous direction to cease.

[97]

Brief Background The officer has been on sick leave since 12.8.03. His claim for a work related psychological injury was declined by the Treasury Managed Fund on 31 May, 2005. He had an extensive complaint history immediately prior to taking his sick leave involving excessive alcohol intake, declaring is office as a police officer whilst intoxicated and engaging in unauthorised secondary employment whilst on sick leave. These matters were progressed to the Internal Review Panel and the Commissioner has subsequently signed a notice under Section 181 D of the Police Act for service on ALLCHIN for potential dismissal. Rehab Coordinator, Denise PUGH made inquiries with his psychologist Anne Caterino who indicated service of such documents could be detrimental to ALLCHIN's health as she considered him potentially suicidal. Psychiatrist Greg Sawyer, GIO, has examined ALLCHIN and believes he is manipulating the system. Sawyers report is the basis declining the claim by the TMF. . . . What outcome are you looking for from this referral? To ascertain whether ALLCHIN is psychologically stable enough to be served disciplinary documents relating to dismissal and if not whether he should be progressed to medical discharge. 111 On 9 June 2005, the applicant was advised by Detective Chief Superintendent Hudson that he should produce medical certificates or his absence from duty would be referred to as "leave without pay." He also was advised backdated certificates would not be accepted. 112 On 27 June 2005, Dr Kirby saw the applicant. He took a history that the basic cause of the applicant's problem was the incident on 8 April 2000 when the applicant asserted he was "attacked with a butchers' knife." The doctor determined the applicant needed a referral to a treating psychiatrist. The Doctor opined the applicant was not able to be served with the Notice on the basis of his interview. Dr Kirby opined he had: "reservations in advising that Allchin could withstand being involved in the disciplinary process at present."

[107]

There is no evidence Ms Planica saw the applicant. Detective Chief Superintendent Hudson said in explanation: A. . . . she didn't think he was a risk to himself to serve the process on him and also the fact that Craig was totally aware through being told by the Police Medical Officer that the reason for the visit to the PMO some months prior was for his capacity to be served so he was well aware of the existence of the process and on that basis she did not see any restriction to serve him. 126 On 5 October 2005, the same day the psychologist opined the applicant could be served the s181D Notice issued by the Commissioner on 21 March 2005, was served on the applicant. Detective Chief Superintendent Hudson gave the instruction to serve it. 127 On 6 October 2005, solicitors for the applicant wrote to Detective Chief Superintendent Hudson requesting an "extension" of the applicant's Special Sick Leave. 128 On 11 October 2005, Detective Chief Superintendent Hudson commented to the GIO on the applicant's workers' compensation claim, noting the timing of the claim for workers' compensation for the "wrist" injury appeared to coincide with the applicant's sick leave entitlements being exhausted and "this was the first report of any alleged pain he has been suffering for the past three years as indicated in the medical certificate". 129 On 28 October 2005, the applicant failed to attend the follow up appointment with Police Medical Doctor, Dr Li. 130 On 22 November 2005, solicitors for the applicant, replied to the s181D Notice and sought a medical discharge. 131 On 23 November 2005, the Employment Management Branch, prepared a recommendation sent for the Commissioner to determine whether a section 181D Order or a Commissioner's Warning Order should be issued, or whether other action should be taken. 132 On 29 November 2005, Commissioner Moroney considered the submission and signed the approval that the applicant be removed from the New South Wales Police. 133 On 6 December 2005, Detective Chief Superintendent Hudson declined the applicant's application for Special Sick Leave. He noted: Applicant has been on long term sick. Failed to attend PMO visits when required. Claim has been declined by GIO. Has shown no desire to return to workplace in any capacity. 134 On 7 December 2005, the applicant was advised his application for Special Sick Leave was declined and he commenced leave without pay. 135 On 9 December 2005, the Statement of Reasons in support of the 181D Orders were signed by the Commissioner. The applicant's entitlements were calculated up until 20 December 2005. 136 On 13 December 2005, the applicant's solicitor indicated a review of the insurer's decision to decline liability for psychological injury had been requested and if there was no response within seven days, they would commence proceedings in the Workers' Compensation Commission.

[110]

The Applicant's Submissions 142 The applicant was self represented and makes a number of general submissions: · The applicant asserts his removal was harsh, unreasonable or unjust under s181E of the Act. · The applicant asserts he was denied procedural fairness because all of the documentation relied upon by the Commissioner, to determine the Commissioner did not have confidence in his ability to continue as a police officer, was not made available to the applicant at the time he made his submissions in reply to the Notice and before the determination of the Order because more issues were raised by the Commissioner than those in the Notice. · The applicant asserts many of the interviews conducted with him were not made available to him on transcript and 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." · The applicant challenges specifically the facts relied upon by the Commissioner related to the events specified as well as his failure to answer questions at an electronically recorded interview conducted related to his secondary employment. · The applicant asserted his departure from the Police Service should have been "more properly dealt with by way of a hurt on duty medical discharge rather than removed pursuant to s181D." 143 The applicant required for cross examined 15 witnesses as to the specific allegations alleged against him in three incidents - the first at Penrith Plaza Shopping Centre; the second at Kingswood Sports Club and the third at Mazepa Avenue, Penrith. He challenged each witness and their interpretation of the above events without denying the incidents occurred. 144 The applicant also challenged the withdrawal of his secondary employment approval related to the termination of his employment which work he did not cease and which issue was the focus of an interview, electronically recorded, in which he allegedly failed to answer questions as directed by those in authority in accordance with the rules of the Service.

[112]

As these were the matters upon which the Commissioner for Police in these proceedings relied upon, and were the basis on which the decision to remove the applicant from the Police Service, the Order to remove should be maintained and not interfered with. 146 Generally the respondent attacked the credibility of the applicant. The respondent asserts the applicant's explanation offered on each incident relied upon in the Notice was not to be believed. Particularly, the respondent contends there was "no clear or direct evidence that the applicant is currently or was at the relevant time suffering from alcoholism such that this would entirely excuse his behaviour". 147 Further reliance is placed by the respondent on the endeavours taken by the Police Service to refer the applicant to its welfare services or, alternatively, to inform him of the existence of services which the applicant chose not to access. 148 The respondent submits the applicant's behaviour reveals a lack of insight into himself and a lack of understanding of the requirements of the Service, the Commissioner and the community from those serving in the New South Wales Police. It demonstrates the applicant's unsuitability as a police officer (which unsuitability is highlighted throughout the evidence) and the respondent submitted therefore the applicant should be removed. 149 However, the Commissioner's Statement of Reasons also referred to a number of other matters as well as these extra two incidents which the respondent submitted were referred to as "additional material" which supported the decision to remove. The respondent submitted the extra matters should be viewed as indicative of, and in support of, the finding that the particular five incidents established the applicant "was not suitable due to his behaviour, his poor attitudes and conduct on or off-duty over a sustained period of time". 150 The respondent conceded in the Statement of Reasons there is reference to some matters not in the original Notice. They are: · An incident at the Police Academy while the applicant was in training · An incident on 27 December 2001, where while off-duty the applicant acted inappropriately towards a patron of the Penrith RSL Club.

[115]

Applicable Legal Principles 153 From the applicant's employment history, a number of facts emerge and conclusions can be drawn. Further, some issues have arisen which are contentious and require findings. Such findings and conclusions will then be applied and interpreted in accordance with applicable principles. It is therefore necessary to recite those principles. 154 The Commission in an application under s181E takes a number of matters into account. In Newton and New South Wales Police Service (No 2) (1999) 87 IR 66, the Full Bench held: 75 While s181F requires the Commission, first, to consider the reasons provided by the Commissioner of Police for the decision to dismiss, it also requires the Commission to consider, secondly, the case presented by the applicant as to why the dismissal was harsh, unreasonable or unjust and, thirdly, the case presented by the Commissioner of Police in answer to the applicant's case. . . . and: 77 Section 181F picks up these notions and, in reviewing a dismissal under s 181D, imposes a statutory obligation on the Commission to consider the three matters specified in s 181F(1) before finally determining the matter. . . . ... and further: 79 The passage emphasised confirms our consideration of s 181F; that the role of the Commission is to conduct a review of the merits of the decision of the Commissioner of Police, to consider the whole of the circumstances of the matter in a way determined by s 181F and apply the statutory criteria in that situation. 155 In Van Huisstede v Commissioner of Police (2000) 98 IR 57, Walton J, Vice-President considered the role of the Commission thus: 193 . . . 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.

[116]

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. 156 And as was further said in Van Huisstede: 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 s 181D(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. . . . 157 Not every fault in the procedure adopted by the Commissioner will require the Commission's intervention. As was said in Starr v Commissioner of Police [2001] NSWIRComm 226: 140 . . .Each case must be determined in a manner appropriate to the facts and issues raised and appropriate to the manner in which the parties present their case. I consider that there are features of this case which demand a full examination of the evidence relating to the conduct of the applicant which was relied upon by the Commissioner in removing him from the Police Service, although the deficiencies in the process adopted by the Commissioner will be relevant to the ultimate conclusion as to whether the removal was harsh, unreasonable or unjust.

[120]

The Applicant's Work History 160 The chronology detailing the applicant's work history allows a number of findings to be made. The work history reveals members of the Police Academy recommended the applicant was not a suitable candidate for the Police Service. He was, however, sworn in as a Constable after performing an extra field placement. The attitudinal issues raised by the Academy members do not seem to have been directly addressed. 161 After serving for less than one and half years as a police constable, given his failure to do the job well (with much time off in sick leave), his superiors considered he needed a Remedial Performance Review and had noted "he is starting to show signs of stress". He was referred to remedial work with the Transit Police under the Parramatta Command and was not to be given front line responsibility. He was initially appointed for three months but this was to be extended to five months given his poor performance in the remedial programme. However, the Transit records indicate he served within the Transit Police until 21 August 2003 - some one and a half years. The time the applicant was seconded to the Transit Police was not referred to in the reviews of his service before his termination. It only becomes evident from the dates in the Transit correspondence to the Government Insurance Office. 162 The applicant was referred by the Service to the Healthy Lifestyles Branch to be seen in the Alcohol and other Drug Education and Counselling Unit for "alcohol abuse/dependency". The Drug and Alcohol Counsellor saw him in July 2002. He determined the applicant's problem as "binge drinking". The applicant failed to keep a follow up appointment. There was no follow up by the Service's section. 163 The applicant took 104 hours sick leave in his first six months on-duty (from May to December 2000); in 2001, he took 66 hours. As early as August 2001, his superiors were asked whether he had a chronic illness or ongoing health problems. In 2002, he took 100 hours sick leave and in 2003, he exhausted all types of leave entitlement by 9 September 2003. From 12 August 2003 to 20 December 2005 (his last day of service) he never returned to work. He seems to have been granted special sick leave in 2004-2005. 164 Throughout 2002 and into 2003, the particular incidents mentioned in the Notice occurred. The incidents were off-duty incidents but they appear to have occurred while the applicant was still seconded to the Transit Police. However, the inquiries that were instituted into such incidents were under the auspices of his Commander at the Mt Druitt command. 165 The applicant in his reply acknowledges he was under the influence of alcohol in all but one (the Mazepa Avenue incident) of the five incidents. He gave the same evidence in the hearing. 166 The applicant continued to perform maintenance work (which had been approved as his secondary employment) without permission from the Service. He went on long term sick leave in August 2003 while still working with the Transit Police. He ceased work with them on 21 September 2003. 167 The Union advanced a claim for the applicant on 11 September 2003 related to his stress at work. The Transit Police told the Government Insurance Office that the claim related to long term incidents while at Mt Druitt but stated the claim was simply advanced while the applicant was seconded to the Transit Police. 168 The Rehabilitation Branch, in October 2003, after his claim had been lodged, contacted the applicant who had been transferred back to Mt Druitt. Records suggest he did not report for duty to the Mount Druitt Area Command. He asked for counselling. He complained about the prior counselling and requested someone who understood policing. Also contacted was the Healthy Lifestyles Branch, who had not seen the applicant since July 2002. A different Drug and Alcohol counsellor saw the applicant and determined he had an "unhealthy alcohol intake." He was offered hospitalisation "re his alcohol issues". The applicant's own General Practitioner now acknowledged his alcohol dependency and his stress at work in certificates. 169 From April 2004, while on long term sick leave, the applicant failed to send in medical certificates to the Service but he continued with his (not now approved) secondary employment. In mid 2004, Detective Chief Superintendent Hudson arrived at Mt Druitt. He noted the applicant was on long term, sick leave. He confirmed endeavours had been made to introduce a rehabilitation programme with the applicant and that all rehabilitation attempts failed. The applicant refused to return to work in the Mt Druitt Command. Detective Chief Superintendent Hudson required medical certificates and tried to encourage the applicant to return to work. 170 The Rehabilitation Branch made contact throughout 2004 and 2005 with the applicant. The applicant recorded with them a myriad of complaints. He refused hospitalisation and alternative placements. The Rehabilitation Branch spoke of its frustration with respect to trying to organise an officer's return to duties when he did not have full access to medical reports only summaries from the Government Insurance Office. 171 In March 2005 Detective Chief Superintendent Hudson then recommended, the Notice of an Intention to Terminate. This went through police procedures and was signed by the Commissioner on 9 March 2005. 172 It is the police officer's local area Commander who has the responsibility to serve the Notice. However, Detective Chief Superintendent Hudson was sufficiently concerned as to the health of the applicant to request the Police Medical Officer make an assessment as to whether the applicant was psychologically stable enough to effect service of the Notice. The Police Service's doctor, Dr Kirby, opined the applicant was not well enough to accept service of the Notice. He recommended an immediate psychiatric examination of the applicant. 173 Further efforts were made by the Police Service's Rehabilitation Branch to return the applicant to work throughout 2005, all of which failed. The medicals he attended and the Service file notations continued to refer to his complaints of "stress" and his complaints of various injuries at work. The applicant continued on long term leave from August 2003. He was served the Notice in October 2005 and removed from the service in December 2005.

[136]

I have carefully reviewed all the material associated with this matter and see no mitigation or reason that would provide me with any basis not to lose my confidence in your suitability to remain a police officer. 189 Alcoholism, or at the very least alcohol abuse, is considered by the Commissioner but not given the full weight that the facts, as revealed in the employment history before the Court, required. The applicant's pattern of behaviour off-duty was generally alcohol related and given his unsatisfactory performance at work coupled with his excessive sick leave record I find all are indicative of an officer affected by alcohol both on and off-duty. If the level of alcohol intake was such as to affect behaviour on and off-duty and hospitalisation was recommended, it is odd that there is hesitation in the use of the word "alcoholic" to describe the applicant's behaviour at the relevant times. I cannot accept an alcoholic could have a 'reasoned adult decision making process'. 190 The Commissioner did not accept that alcohol abuse could be a medical explanation for the applicant's conduct. He rejected alcohol as a possible causal factor in the applicant's behaviour. There is no reference to the applicant's disjointed complaints of work related stress nor an acknowledgement that early signs of stress were recognised by his superior officers (as early in his employment as 2001) nor is there an acknowledgement of the fact that the applicant's worked front line for only a year and a half then spent a further year and a half in a remedial placement, then was off work on leave for a further two and a quarter years. 191 I find that the grounds as contained in the Notice were significantly expanded in the Reasons for the Order and I reject the submission that the new incidents referred to, and the on-duty performance critiques, are simply expansive on the grounds relied upon in the Notice. Further the applicant was not given formal notice of these grounds nor an opportunity to reply to those "expanded" issues. 192 Having considered the grounds in the Notice, the Commissioner's Reasons for the Order and the case presented by the applicant and the case in reply, the court must also take into account the public interest including the interest in maintaining the integrity of the NSW Police Service and the fact that the Commissioner made the Order. 193 I have considered the view, strongly expressed by the Service, that the applicant was "manipulating the system". I note Dr Fong his General Practitioner, who for years had not referred him for specialist treatment but who continued to provide certificates, only when challenged by the Commander, cast some doubt as to the applicant's motivation. Further, I take into account the applicant was able to perform, physically, other work. Financial evidence reveals at some stages he was able to conduct a profitable maintenance business with hired labour. I find it was open to the Police Service to cease his secondary employment permit and with that instruction he should have complied. However, I am satisfied the applicant at the same time that he performed some physical work and conducted a maintenance business, throughout late 2003, 2004 and 2005, was unable to perform full police work after one and a half years of service due to problems related to alcohol and it may be he also suffered work related stress. He was showing symptoms of stress which were recognised by the Service in late 2001. He made claims for multiple injuries at work. He had his remedial training continually extended. I am satisfied the applicant, as best he could in the circumstances, expressed he had anxiety/stress related problems. Whether his stress was work related and/or aggravated his circumstance of alcohol abuse is a medical issue and not one for this court to determine. 194 The Commander who recommended the termination to the Commissioner was asked as to the view he expressed: . . . drinking was not a work related issue.

[138]

The Commander required a medical examination before serving the Notice given his concern as to the emotional stability of the applicant. The Commander was asked why a medical retirement was not recommended by him and he replied: A. I would balance that point of view out by saying he was gainfully employed in secondary employment and could easily function doing handyman work and did 200 or 300 jobs between 6 and 8 weeks. When interviewed by Randell around the same time he was able to function quite well which also caused me to challenge about the same amount of pain in the wrist injury which came after all entitlements were exhausted and I challenged the fact that he could do manual labour for such an extensive period. To my knowledge he has never applied for medical discharge - these are complaint matters, they were dealt with as that under Part 8 A of the Police Act and referred to the Command and managed through the Complaints Management Team. 195 The fact that the applicant had been able to manage physical work but not manage police work may be open to a different interpretation from the conclusion he was manipulating the system. 196 The fact that the applicant did not attend appointments was symptomatic of his condition. I cannot accept because of such behaviour it could be assumed he did not have a medical problem and this pattern of behaviour could fairly be viewed as misconduct. I understand the submission that the applicant was flouting the police service rules but at the time the applicant was not in possession of the necessary reason nor common sense. The Police Service chose to hire this vulnerable officer. It holds some responsibility in determining what his condition was after five years service that caused them to determine he was unable to satisfactorily perform his duties. 197 I find it is not in the interest of the police service nor in the public interest to simply remove an employee who was clearly very ill and unable to cope. While the Police Service did try and failed to rehabilitate this employee, at the point of the decision to remove, there were other options available. 198 The weight of medical opinion including that of the Police Medical Officer made clear the applicant was very ill and needed psychiatric help. A psychologist's opinion should not have been used to override the Police Medical Officer's opinion. All that was briefed to the Commissioner was the statement "he has been on long-term sick leave". The service, in evidence, expressed the view that would have been, to the Commissioner, an "indication" of his medical condition. I reject this proposition. 199 I do not accept that it is in the public interest nor in the interest of the police service to have a police officer who, it appears, cannot cope and who has obvious medical problems to be removed on the grounds of conduct and attitude without a comprehensive medical examination to determine his condition. 200 Given the failure to address the applicant's complete work history, his recognised illness, his mental state and the associated failure to consider whether the applicant should have been dealt with by way of a medical discharge, or at least a medical examination with view to assessing his eligibility for medical discharge, and taking into account the expanded Reasons for the Order from the grounds notified in the Notice and the Commission's finding the applicant was affected by alcohol throughout a considerable period in his employment as a Constable, I find the Order of the Commissioner to terminate the applicant for attitude and conduct as demonstrated through five off-duty incidents was, in the circumstance, harsh and unjust.

[145]

Q. Without it being addressed in the submission to him? A. Well the submission itself actually addresses that, The applicant has been on long term, had been on long term sick leave so that was an indication. . . . Q. It is not part of any of the options coming to him in the submission from you? A. The cases are processed separate from the medical discharge process, it is done by - through employee management branch and the professional standards command. 203 An application for medical discharge signed by the applicant and dated 31 August 2005 was sent by solicitors acting for the applicant to the Commissioner for Police under cover of letter dated 13 December 2005. That letter is stamped as having been received by the Police Service workers compensation area on 21 December 2005. On August 2003 the applicant had applied for a medical release on a number of grounds, some were rejected, others not dealt with. The claim was rejected. Notice was given of an appeal. 204 The applicant on 22 November 2005 in his Reply to the Notice had asked the Commissioner to consider his case as an application for a medical retirement. That was not directly addressed by the Commissioner, nor was alcoholism and/or stress viewed as a medical condition, nor were his complaints of stress addressed. 205 Evidence revealed a medical discharge application can be actioned and initiated at the local command level, by the employee, by the police medical officer or by the Commissioner. However, when such an application is actioned the Acting-Director of Health Services in the NSW Police Service seeks a clearance from the Professional Standards area - the Employment Management Branch. If Health Services are informed that there is a s181D process in place there may be a determination that the medical discharge should not proceed until the s181D process has been finalised. The relevant area would continue to process the medical discharge until such time as they are told by the Commissioner or Professional Standards - Employment Management Branch that the medical discharge was not to proceed because of action or possible action under s181D. This appears to indicate a priority is given to s181D terminations. The Commissioner therefore does not always receive assistance, where relevant, as to a medical assessment of an officer. 206 Removal from the Police Service pursuant to s181D has the effect of preventing an officer making an application for a medical discharge. The respondent submits that there was no valid application for medical discharge by the applicant prior to his departure from the service. 207 On or about 23 June 2005, a new award, the Crown Employees (Police Officers Death and Disability) Award 2005 came into force and effect and has application to police officers. A police officer who joined the police after April 1988 is able to make an application for benefits under the award only if they meet the criteria set out in the award. The award applies to those police officers who were at work on or after 23 June 2005 for a continuous period of not less than 30 days (clause 4.3). 208 Under transitional arrangements the award also applies to officers who as at 23 June 2005 are participating in an agreed return to work programme or who return to work after that date and participate in an agreed return to work programme. This is subject to the caveat that they must be participating in such a program for a period equivalent to three months of their full time service (c 4.4). The facts have revealed the applicant was not at work on 23 June 2005. However, he was on sick leave which did not cease until August 2005 after which he appears to have been paid until 20 December 2005 but terminated on 9 December 2005. 209 The respondent submitted the evidence is clear that the Award has no application to the applicant. 210 Prior to the introduction of this Award, and supplementary to any rights in relation to workers' compensation, police officers who were hurt on-duty could make application to the Commissioner for Police for what was termed a "special risk benefit" pursuant to s216 of the Police Act 1990. That provision provided the Commissioner could pay to a police officer who is retired from the police on the ground of physical or mental incapacity (being an incapacity which the Commissioner determines to have been caused by the police officer being hurt on-duty and calculated in accordance with the formula provided in the relevant section).

[148]

213 The applicant, self represented, was unable to express a view as to the respondent's proposal as to his existing rights. The Police Service determines under what provision an officer is referred for a medical examination to determine his eligibility for a medical retirement. Presumably, the applicant retains his right to appeal if the Service, on the facts, refers an officer for a medical retirement examination under a particular statutory provision and the relevant statutory provision chosen is not the applicable one to the circumstance. 214 In the final submissions, the applicant asserted he should be re-instated as he had stopped drinking in August 2005. While behaviour following the termination can be taken into account (see Hoseman No.2 and Dobbie) I do not accept the fact that the applicant has ceased to drink is a sufficient ground to reinstate the applicant. Taking into account the work history as revealed in the evidence and having seen and heard the applicant I have formed the view that the applicant has failed to develop an understanding of policing and is not a suitable candidate for police employment. 215 I have come to the conclusion it is not appropriate or indeed possible, given the circumstances revealed in evidence, to return the applicant to the Police Service with a view to his resuming police work. 216 However, I order the applicant to be reinstated in the Police Service, without pay and without compensation in respect of time not worked, but conditionally upon his undertaking in writing to the Commission that he will attend a medical examination in consideration of a medical discharge. Should that application be unsuccessful, he will be deemed to have resigned from the Police Service. 217 The applicant is, after the filing of an undertaking, then to be referred for a medical examination for the purpose of medical retirement in accordance with his statutory entitlement. The applicant's complete employment and medical history (including all existing medical reports and any further reports to be relied upon) are to be placed before the medical examiner. The determination of the medical examiner is to be notified to the Commissioner. 218 The Orders will take effect on and from 5 April 2007, conditionally upon the applicant's written undertaking and upon its being filed with the Industrial Registrar and served on the Commissioner of Police.

At a glance

Court

Decision date

Before

Source

Judgment (156 paragraphs)

Parties

Cases Cited (8)

Cited By (2)