Calvin Dunne v Commissioner of Police

Background

1. It is necessary to set out the allegations that the respondent found were sustained against the applicant and in respect of allegations 1, 2 and 3, the communications underpinning those.

Allegation 1 - Sexual harassment of Constables Bridger and Sonter

1. The first allegation that the respondent sustained against the applicant was that he engaged in sexual harassment of colleagues, Constable Zyon Bridger on four separate dates and of Constable Kyle Sonter on two separate dates, in posting messages on the group chat that were directed towards those Police Officers.
2. The relevant messages relating to the allegation of sexual harassment are set out below, including messages that provide relevant context. It should be noted that the transcript of the group chat contained in the Commissioner's in-confidence materials did not include media content such as emoji's, pictures and videos. Below are the statements of the applicant that form the basis of the allegation of sexual harassment of his colleagues: 1. "Hey why don't you and Crotty hook Zyon? You guys are both single"… to which Constable Bridger responded, "Shut up cunt" and "Don't you have a beard to groom" (at 8:55 pm on 27 June 2017); 2. "Hey Zyon do I see Jackie greenings name all over that pic?? Did she send it to you??"… then in response to Contable Bridger replying, "I took it off her computer when she was on station." […] "Mmmmm", "A likely story", "So what's her pussy taste like?". The exchange then proceeded as follows (from 8:25 pm on 4 July 2017): Jordan Crotty: Good cover up bro Jordan Crotty: Lol Zyon Bridger: Calm down C Dunne: Ooooooo Zyon Bridger: Ask rankin how it tastes C Dunne: Getting defensive about his missus C Dunne: Speaking of getting defensive about your missus... smithy, you ok bro? C Dunne: Rachy Bis all shacked up with a bloke now Anthony Smith: Haha heartbroken mate. Don't know how I will go on. C Dunne: You should just quit I reckon C Dunne: Only way to save face … 1. "Hey Bridger, are you banging Roper???" (9:07 pm on 15 August 2017); 2. In response to Constable Crotty stating that she, "didn't love him" in the context of a male person, the applicant stated: "Hahahaha" "Pretty boys make shit boyfriends" "Look at George" "And cash" […] "You gotta do what roper and goodier did and go for something a little rough round the edges", "Eg: Bridger and sonter" (10:53 am and 10:54 am on 11 September 2017); 3. In the context of the applicant asking if anyone would housesit his residence; "Sonter if you look after my dogs you can smash goodier in my bed" […], "Housesit for me cunt" (3:07 pm 20 September 2017).

Allegation 2 - Unprofessional and/or inappropriate messages

1. The second allegation against the applicant was that he posted various unprofessional and/or inappropriate messages to the group chat, some of which constituted harassment on discriminatory grounds; on the basis they were racist towards Indigenous Australian's, sexist and/or homophobic in nature.
2. A sample of the contributions of the applicant to the group chat which underpinned this allegation are set out below: 1. "Welcome back faggot" and "Welcome back faggot no. 2" (at 4.27pm on 27 June 2017 and 9.42pm on 27 June 2017); 2. "No it's Blake hanging her salty cunt out for Sonter and smithy to smell but never touch" (at 6.41pm on 27 June 2017); 3. "Sonter you have about as much coon in you as hanna has hair" (at 6.46pm on 27 June 2017); 4. "Defo not coonis australis" (at 8.22pm on 27 June 2017); 5. "They have faggot bread here for smithy" (at 6.43pm on 10 July 2017); 6. "Soz Sonter […] she's coon […] coons don't date […] they steal" (at 7.46pm on 11 July 2017); 7. "What did you charge him with? […] Hahahaha. Load up. […]" (between 8.34pm and 8.47pm on 14 July 2017); 8. "Guys can we go back to Jackie getting bolt ons??? […] Surely that puts her in first place now?? […] Hahaha […] Chelsea defo number 1 for under 30 […] Jackie just went number 1 over 30 […] Jenna is number 1 MILF […] Smithy number 1 dog" (17 July 2017, 3:40 pm to 3:50 pm). These messages were sent in the context of a conversation in which female colleagues at the Police Station were ranked based on their appearances. The applicant gave evidence that "Jackie" and "Chelsea" are Police Officers not in the group chat. It is understood from the evidence that "bolt ons" means breast implants and "MILF" means, "Mother I like to fuck"; 1. "If you won't do it for yourself at least do it for group. […] Or else just tell us that you prefer cock" (between 9.28 and 9.29pm on 20 July 2017); 2. "Has anyone managed to catch of glimpse of Jackie's warlocks yet??? […] They didn't look too big today. […] You don't look at the mantle piece when your poking the fire Jenna. […] Yeh I'd be too busy looking into my camera" (between 9.31pm and 9.33pm on 20 July 2017); 3. "Sonter you disappoint me. You couldn't crack a cock thirsty abo that's over the hill, as if you'd have a chance with Crotty" (between 9.57pm and 9.59pm on 20 July 2017); 4. "I'm so torn between wanting to see this video not wanting to become part of an investigation. Might just watch some porn and pretend they are mega head and Chelsea" (at 10.47am on 21 July 2017); 5. "Can't believe you didn't fuck that chick […] You're as gay as smithy" (at 9.11pm on 23 July 2017); 6. "Some cunt just got blown away in the city by PTC", then in response to an officer's message "Shot?", "Apparently. Check CAD" (between 7.32pm and 7.35pm on 26 July 2017); 7. "Brighton is the Gaza Strip. You'll get raped for sure Crotty" (at 11.49pm on 7 August 2017); 8. "You blokes couldn't jag a root in a brothel with a fistful of fifties […] At least Zyon has some game […] Smithy we're on our way to your place now to do a welfare check […] never seen you so quiet" (between 2.45pm and 4.10pm on 13 August 2017); 9. To two female colleagues, "You two should go down on each other […] film it but" (at 5.29pm on 13 August 2017); 10. "Nah she's seeing a bloke apparently. […] And he "fucked up". So sent flowers. And they were so Jewish. […] Legit would have cost $30" (between 9.00pm and 9.01pm on 15 August 2017); 11. "Fuck I'd love to watch that show. Zyon pounding sonter in the in the ass would be" (between 8.14pm and 8.15pm on 7 September 2017); 12. "No wogs allowed" (at 4.14pm on 10 September 2017); 13. "Those blokes are harmless. […] Not that we have any proper crooks to turn over anyway. […] PCT has to justify their existence somehow haha. […] Yeo. That's where GDs dump all their spent cartridges" (between 10.31am and 10.35am on 11 September 2017); 14. "You blowing a load in your pants over Blake is not a bomb threat" (at 12.22pm on 21 September 2017); and 15. "Well she has something. Ability to swallow under pressure" (at 12.41pm on 21 September 2017).
3. Constable Sonter, to whom the messages at (3), (4), (6) and (11) above are addressed is an Indigenous Australian.

Allegation 3 - Bullying of Constables Betts-Smith and Sonter

1. The third allegation against the applicant was that he posted various messages to the group chat that constituted bullying of Constables Anthony Betts-Smith (hereafter Constable Smith) and/or Kyle Sonter. The respondent identifies 27 instances of bullying conduct in the group chat.
2. In the messages relevant to this allegation, the applicant calls Constables Sonter and Smith derogatory names such as "Faggot", discusses their sexual relationships, questions their sexuality and makes homophobic comments towards them, and temporarily removes them from the group chat.
3. Some, (but not all) of the instances of the alleged bullying were also identified as forming the basis of the second allegation and are set out above at [15] (1), (2), (3), (8), (9), (11), (16), (19) and (22). In addition, the instances referred to above at [15] (4), (5), (6) and (13) were categorised by the respondent as discriminatory harassment, and are examples of where such conduct was directed at Constables Smith and Sonter.
4. In his consideration of the claim of bullying contained in his Statement of Reasons, the respondent also refers to the applicant excluding particular Police Officers from the group chat when he deemed their contribution to be unsatisfactory in some way. From the transcript, the applicant temporarily removed members of the group on four occasions, including Constables Sonter and Smith, prior to removing all members on 5 October 2017 when the group chat ceased. The applicant removed Constable Smith from the chat on 26 June 2017, stating, "Enough from that maggot for tonight", and re-joined Constable Smith to the group before removing him again on 28 June 2017, stating, "Silly boy… he's a slow learner". He also rejoins members who leave themselves, asserting at one point, "No one leaves without permission."

Allegation 4 - Failure to report conduct of others

1. The fourth allegation against the applicant was that he failed to report the conduct of five (5) of his colleagues in posting unprofessional and/or inappropriate messages in the group chat.

Allegation 5 - misuse of respondent's time

1. The fifth allegation against the applicant was that he misused the respondent's time in circumstances where he posted a message or messages on the group chat while rostered to perform duties. The respondent identifies 39 dates when this conduct is said to have occurred from 24 June to 29 September 2017.

Relevant legislation and legal principles

1. It is convenient at this point to set out the relevant sections of the Police Act and case law applicable to this review.
2. Part 9 of the Police Act, comprising ss 173-187, is entitled "Management of conduct within NSW Police Force".
3. Divisions 1B and 1C of Pt 9 of the Police Act were introduced respectively by the Police Legislation Further Amendment Act 1996 (NSW) (the 1996 Act) and the Police Service Amendment Act 1997 (NSW) (the 1997 Act).
4. The 1996 Act introduced s181D into the Police Act, allowing for the respondent to summarily remove Police Officers in whom the Commissioner of Police no longer has confidence. The 1997 Act provided for the review by the Commission of decisions of the respondent removing a Police Officer by order under s 181D of the Police Act.
5. The applicant was removed from the NSW Police Force pursuant to s 181D of the Police Act. Section 181D, empowers the respondent to remove a Police Officer in whom he has lost confidence, having regard to the officer's competence, integrity, performance or conduct. It is in the following terms: "181D Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. (2) …. (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."
6. Apart from the a review of this Commission pursuant to Division 1C of the Police Act, there is no capacity for the applicant to effectively appeal against the respondent's decision to remove him: s 181D (7) of the Police Act.
7. Division 1C of Pt 9, is entitled, "Review of Commissioner's decision under Division 1B". Section 181E provides: "181E Review generally (1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the removal is harsh, unreasonable or unjust. (2) An application under this section does not operate to stay the operation of the order in respect of which it is made. (3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1)."
8. Section 181F dictates the manner in which proceedings on a review by this Commission is to take place. Sub-section 181F(1) provides: "In conducting a review under this Division, the Commission must proceed as follows - (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case."
9. Sections 181F(2) of the Act, which is of importance in these proceedings states: "The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary."
10. The parties made submissions with respect to the meaning of these provisions, particularly in the context of the allegations made against the applicant that he had sexually harassed and bullied certain of his colleagues through his contributions to the group chat. Specifically, the applicant claimed that there was an obligation upon the respondent to call evidence to establish that the comments relied upon where unwelcome and/or that there was a victim in order for it to maintain those allegations. On the other hand, the respondent asserted that the effect of the legislative scheme is that it was upon the applicant to call evidence that the conduct was not unwelcome if he wanted to assert this was the case.
11. The approach the Commission is required to take in reviews of this kind has been the subject of a number of decisions, including most recently in the NSW Court of Appeal in Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236 (Zisopoulos) and in the Supreme Court of New South Wales in Storey v Commissioner of New South Wales Police Force (No 2) [2020] NSWSC 1429 (Storey). Both of these decisions were published after this Commission reserved its decision in these proceedings and the Commission was assisted by receiving supplementary submissions from the parties.
12. In Zisopoulos, regarding the onus of proof in review proceedings under s 181E of the Police Act, the majority (Bell P, with whom Macfarlan JA separately agreed) concluded (at [84]-[89] and [96]) that the reference in s 181F(2) to the burden of establishing that the removal is harsh, unreasonable or unjust is a reference to the applicant's legal onus, which at all times rests on the applicant to the proceedings before the Commission, and is not a reference to any "evidentiary" or "tactical onus" which may shift during the course of the proceedings. Bell P based his conclusion on the fact that, in the reasons for removal, as it is in this case, the Commissioner of Police predicated his factual findings of misconduct on the Briginshaw standard of proof (see [76]-[77]). The President stated (at [78]): "…having predicated his removal decision on satisfaction to that standard, if the IRC, on review, reached the conclusion that the Police Commissioner could not have been so satisfied in light of the material in evidence before it, it is not difficult to understand how a conclusion that the removal decision was harsh, unreasonable or unjust could be warranted or justified."
13. The President went on to conclude (at [84]-[85]): "[84] Depending upon the basis of the Police Commissioner's decision, as the Full Bench said at [27] citing Starr, the burden of establishing that a decision to remove a police officer is harsh, unreasonable or unjust may be satisfied in a given case by casting sufficient doubt on the Police Commissioner's reasoning process so as to justify the IRC's intervention. But it is important always to remember that "sufficient doubt" is not "any doubt", and the raising of a doubt, sufficient or otherwise, does not in any way alter or affect the legal burden which lies on the removed police officer to demonstrate that his or her removal was harsh, unreasonable or unjust. So also, the mere "going into evidence" by, or the raising of an alternative hypothesis on behalf of, a removed police officer will not per se establish that a removal was harsh, unreasonable or unjust nor will it place an evidentiary or tactical burden on the Police Commissioner to justify his original decision to remove the officer. Whether or not it does will be a function of the basis of the Police Commissioner's original decision and of the strength of the evidence led by the removed officer and or the credibility of the alternative hypothesis. [85] If what the Full Bench in the present case referred to as "sufficient doubt" is raised by the removed officer, an evidentiary or tactical burden may arise which will require the Police Commissioner to answer the doubt in order to defeat the conclusion which may have become open in light of evidence before the IRC, namely that the impugned removal decision was harsh, unreasonable or unjust."
14. In its decision, the Court of Appeal quoted with approval [176] of Starr v Commissioner of Police [2001] NSWIRComm 226 at [86]: "If the case presented by the applicant raises a basis for the Commission's intervention, it will be for the Commissioner, in answer to the applicant's case, to introduce evidence sufficient to demonstrate that the removal was warranted. This is not a matter that depends on onus. It is simply that once the applicant establishes a case then a burden may shift to the Commissioner to respond to relevant aspects of that case. In some matters, such as the present, this may include a burden to produce evidence vindicating the factual findings made, having regard to deficiencies in the process adopted by the Commissioner. (emphasis added)"
15. Bell J went on to note that the decisions in Starr, Tredinnick v Commissioner of Police [2016] NSWIRComm 14 (Tredinnick) and the decisions under appeal all distinguished very clearly between legal burden and evidentiary burden and in each s 181F(2) was not ignored or overlooked: see [87]. He clearly noted that this approach is consistent with a number of accepted authorities including the High Court in its decision in Berry v CCL Secure Pty Ltd (2020) 94 ALJR 715; [2020] HCA 27 at [29], [39], [42] and [66].
16. The Court of Appeal decision implicitly endorses the approach adopted in Tredinnick. In particular, reference was made with approval (as it was in Tredinnick) to the passage by Lord Donaldson of Lymington MR in Amoco Oil Co. v Parpada Shipping Co. Ltd (The "George S.") [1989] 1 Lloyd's Law Reports 369 at 370 (Amoco) (cited at [69] of Zisopoulos): "I now turn to the burden of proof. It is trite law that the legal burden lies upon the claimant. He who alleges must prove. The appellants allege a short delivery and consequential loss and they must prove both. How they prove it and the evidential burden involved is another matter. Proof must be met by counterproof and that in turn by a reinforcement of the original proof (Smith v. Bedouin per Lord Shand at p. 79). If at any particular stage in the evidence one party would succeed, it is for the other party to adduce further or better evidence and, if he does so and thereby achieves a contingently winning position, the first party must do likewise or lose. In other words, the evidential burden swings or may swing between the parties throughout the hearing, but in the end, in the context of a claim for short delivery, the owner of the cargo must prove the short delivery if he is to succeed in his claim and the shipowner must either prevent his doing so or prove affirmatively that, although there was indeed a short delivery, it occurred in circumstances for which he was not responsible."
17. Importantly, Bell P made the following observation with respect to the nature of the review proceedings at [83]: "The nuanced nature of a s 181E review based upon the statutory criteria of harsh, unreasonable or unjust is one that the legislature has entrusted to a specialist tribunal in the form of the IRC. The IRC's review is not "de novo" but, on the other hand, as Mr Kirk accepted in oral argument, is closer to a merits review than judicial review. Assessment as to whether a particular decision of the Police Commissioner engages the statutory criteria necessarily must have regard to the basis and reasoning employed by the Police Commissioner in any given case."
18. Macfarlan JA agreeing with the reasons given by the President, observed at [96] that: "the better view of the judgements under review is that in referring to an evidential onus passing to the Police Commissioner as a result of the evidence called in Mr Zisopoulos' case being adduced, Murphy C and the Full Bench were referring to the "tactical onus" described by Sir Nicolas Browne-Wilkinson CV in Brady (Inspector of Taxes) v Group Lotus Car Cos plc [1987] 2All ER 674 at 686-7… that is, a practical burden to adduce further evidence because the other party has produced enough evidence to win if that does not occur."
19. Macfarlan JA concluded that there is good reason to avoid reference to the practical burden that may arise during a hearing because it may not be known during the course of the hearing if it has arisen and that if it is referred to in a judgement in retrospect, the term "tactical onus", should be used to avoid ambiguity: see [98].
20. Wright J dissented from the majority's decision, taking a different approach. In particular, while the majority analysed the case with reference to whether Mr Zisopoulos had, in his evidence, cast 'sufficient doubt' on the Statement of Reasons, Wright J approached the matter with reference to Mr Zisopoulos's case under s 181F (1)(b), and whether he had discharged his onus of making good the factual assertions in that case that he presented.
21. His Honour diverged from the majority in observing that Mr Zisopoulos never presented the case that the respondent's factual findings underpinning his removal could not be made to the standard of satisfaction referred to in the Statement of Reasons (namely, to the Briginshaw standard). For that reason, his Honour concluded the respondent had no reason to respond to that case (see [175]-[176]).
22. All judges accepted that while there may be a tactical reason for the respondent to call (or not call) evidence in proceedings that responds to a case or evidence led by an applicant, the legal burden (or onus of proof) in the proceedings never shifts from the applicant.
23. Ultimately, the majority in Zisopoulos concluded that there was sufficient evidence led by the Zisopoulos to establish that the respondent could not have been satisfied that the misconduct occurred to the Briginshaw standard. Wright J concluded that the evidence was insufficient, having regard to the case presented by the applicant before the Commission.
24. Zisopoulos makes clear that the role of the Commission in these review proceedings is to analyse the case being presented by the applicant, identifying the factual contentions being advanced, and determine whether those matters are proven or not. It is the applicant who must prove his or her case, including the factual contentions in support of that case, consistent with what the Full Bench of the Commission held in Tredinnick. Whether or not an applicant succeeds in proving his or her case turns on the Commission's assessment of the evidence adduced by the parties, including inferences to be drawn from the failure of either party to call particular evidence.
25. Returning to the Police Act, the Commission must take into account both the interests of the applicant and public interest as provided for by s 181F (3): "Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to - (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1))."
26. The requirements of the Police Act were succinctly summarised by Wright J in Storey at [126]-[128], where His Honour stated, after setting out s181F (2): "126. This makes it clear that the applicant for review bears at all times the burden of leading evidence to establish, on the balance of probabilities, all of the factual elements of his or her case and of making good the propositions that those factual elements mean that the removal was "harsh", or "unreasonable" or "unjust", on the proper construction of those words in ss 181E and 181F the Police Act. 127. Section 181F also, in effect, establishes a number of mandatory considerations which the IRC "must consider" or "must have regard to", namely: 1. the Police Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, set out in the removal order as required by s 181D(4): s 181F(1)(a); 2. "the case presented by the applicant as to why the removal is harsh, unreasonable or unjust": s 181F(1)(b); 3. "the case presented by the [Police] Commissioner in answer to the applicant's case": s 181F(1)(c); 4. "the interests of the applicant": s 181F(3)(a); and 5. "the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1))": s 181F(3)(b). 128. The applicant for a review under s 181E(1) will generally seek to discharge the burden of establishing that the removal was harsh, unreasonable or unjust by leading evidence and making submissions before the IRC. That evidence and those submissions will be "the case presented by the applicant". Examples of the type of case an applicant might present in order to establish that their removal was harsh, unreasonable or unjust can be drawn from the joint judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465; [1995] HCA 24 including that: (1) the removal was harsh because of its consequences for the personal and economic situation of the officer or because the removal was disproportionate to the gravity of the misconduct in respect of which the Police Commissioner acted; (2) the removal was unreasonable because it was based upon inferences which could not reasonably have been drawn from the material before the Police Commissioner; or (3) the removal was unjust because the employee was not guilty of the misconduct on which the Police Commissioner acted."
27. I have applied these principles to these proceedings.

The respondent's Statement of Reasons

1. The Statement of Reasons sets out the background to the matters leading to the findings, a summary of the applicant's response to the Notice, the allegations found to be substantiated and the respondent's consideration.
2. In the Statement of Reasons, the respondent removed the applicant as a consequence of the five allegations as set out above at [12]-[22], concluding that as a result of his conduct, the applicant had contravened the Police Act, the Police Regulation 2015 (the Regulation), the Anti-Discrimination Act 1977 (NSW) (the AD Act) and various policies of the respondent which will be referred to in this decision.
3. Under the heading, "Consideration", the respondent gave his reasoning for his decision to make the Order, with reference to the applicant's Response.
4. The respondent concluded in the Statement of Reasons: "In summary, it is essential that all sworn police officers behave to the highest standards of conduct at all times, both on and off duty, and place integrity above all. As an experienced Senior Constable of Police, and a Leading Senior Constable at the relevant time, you carry the burden of not only consistently meeting these standards of behaviour, but enforcing those standards amongst the junior officers that you are responsible for supervising. In view of your proven misconduct and lack of integrity, I do not have confidence that you can consistently meet the standards expected of you in the future, let alone enforce those standards with the officers you supervise. I expect and the law demands that New South Wales police officers will uphold their solemn Oath of Office at all times. Our Oath requires all New South Wales police officers to act professionally at all times, with ethics and integrity, and in accordance with the law. This is our sworn duty. As a police officer, you should be acutely aware that the general public are entitled to expect every police officer will behave lawfully, appropriately and honestly, and demonstrate the highest standards of conduct and integrity. In light of my findings, I cannot see how your conduct and integrity as a police officer could be relied upon if you were to perform policing duties in the future. I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force. I therefore remove you from your position as a police officer." (emphasis as it appears in the Statement of Reasons)
5. It is important to note in light of the Court of Appeal decision in Zisopoulos, that the respondent made the findings in respect of the allegations against the applicant "on the balance of probabilities, although having regard to the seriousness of the allegation", thereby adopting the approach to the assessment of the evidence espoused by Dixon J in Briginshaw v Briginshaw [1938] 60 CLR 336.

The applicant's evidence and submissions

1. The applicant included in his application to the Commission the Notice, the Response, the Statement of Reasons and the Order.
2. The applicant relied upon the following written evidence in the proceedings: 1. Statement of the applicant filed on 17 February 2020 (Ex A1) (the applicant's statement); 2. Letter from Mr Anthony Smith to Greg Walsh and Co dated 5 September 2019 (Ex A2); and 3. Letter of Mr Kyle Sonter dated 5 September 2019 (with no addressee) (Ex A3).
3. The applicant's statement adopted his Response as being "true and correct to the best of my recollection and belief at the time."
4. The letters from Constables Smith and Sonter (Ex A2 and A3) were in the form of character references with respect to another officer involved in the group chat, namely Constable Jenna Harper.
5. The applicant was cross-examined by the respondent.
6. In addition to his application, the applicant relied upon a Written Summary of Applicant's Case filed 17 April 2020 and delivered extensive oral submission at the hearing on 9 July 2020. After the hearing, the applicant filed an Outline of Submissions dated 3 August 2020 (the applicant's Outline of Submissions). Further submissions were filed by the applicant on 23 December 2020 in response to the respondent's submissions in respect of Zisopoulos and Storey (the applicant's Supplementary Submissions).

The respondent's evidence and submissions

1. The respondent relied upon the following documentary evidence in the proceedings: 1. The Commissioner's in-confidence materials (Ex R1) consisting of: 1. Transcript of the 'group chat' from 24 June 2017 and 5 October 2017; 2. A document titled, "Table - Extract from the Group Chat of Messages sent by Senior Constable Calvin Dunne"; 3. A document titled, "Personal Roster Report" relating to the applicant; and 4. Individual profile information relating to the applicant; 1. Affidavit of Assistant Commissioner Gelina Talbot (AC Talbot) filed 3 April 2020 (Ex R2) (AC Talbot affidavit); 2. A document setting out the disciplinary action taken in respect of ten (10) police officers involved in the group chat (Ex R3); 3. A document titled, "Supporting Documentation" setting out information relating to the applicant's employment with the respondent including his Transfer History, Previous Complaint Matters Requiring Management Action and Awards/Complimentary Remarks (Ex R4).
2. AC Talbot was cross-examined at the hearing by the applicant.
3. The respondent relied upon an outline of written submissions filed 9 July 2020 and submissions in response to the applicant's Outline of Submissions filed 14 August 2020. The respondent filed further written submissions on 27 November 2020 addressing the Zisopoulos and Storey decisions and then reply submissions to the applicant's Supplementary Submissions filed 29 January 2021.

Consideration of the applicant's case regarding the Allegations

1. The applicant has at all times the burden of establishing that his removal from the NSW Police Force is harsh, unreasonable or unjust: s 181F(2).
2. I have considered the applicant's case with respect to each of the allegations relied upon in the Statement of Reasons before turning to the issue of whether the Order was harsh. Some of the matters raised in defence of the allegations overlap and are also relied upon by the applicant to establish that the Order was harsh.

Allegations 1 & 3 - Sexual harassment and bullying (knowingly or otherwise) in the group chat

1. In the Statement of Reasons, the respondent confirmed his view that in respect of the allegation that the applicant engaged in sexual harassment of two of his colleagues (Allegation 1), he had acted contrary to the Police Act, the AD Act, the NSW Police Force Code of Conduct and Ethics, the NSW Police Force Respectful Workplace Behaviour Policy and Guidelines and the Social Media Policy and Guidelines. The Statement of Reasons particularises the breaches as follows: "Section 7 of the Police Act 1990 relevantly states: Statement of values of members of the NSW Police Force Each member of the NSW Police Force is to act in a manner which: (a) places integrity above all, (b) upholds the rule of law, (c) preserves the rights and freedoms of individuals, ... (e) strives for citizen and police personal satisfaction... Section 22A of the Anti-Discrimination Act 1977 relevantly states: Meaning of "sexual harassment" For the purposes of this Part, a person sexually harasses another person if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or (b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated. Section 22B(2) of the Anti-Discrimination Act 1977 relevantly states: It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer. Point 1 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must behave honestly and in a way that upholds the values and the good reputation of the NSW Police Force whether on or off duty. Whether on or off duty your conduct will reflect on the NSW Police Force. All employees must protect the reputation of the NSW Police Force through appropriate behaviour. You must always act lawfully and never in a way that brings, or is likely to bring discredit to the NSW Police Force. Point 3 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must know and comply with all policies, procedures and guidelines that relate to their duties. If you are going to work lawfully and effectively you need to understand and act in accordance with the standards that govern your duties. Point 4 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must treat everyone with respect, courtesy and fairness. All NSW Police Force employees must act with fairness and impartiality to other employees and customers… It is unlawful to harass, vilify, victimise or discriminate against any person based on: o age o sex o pregnancy o disability (includes part, present or possible future disability) o race, colour, ethnic or ethnoreligious background, descent or nationality o marital status o carer's responsibilities o homosexuality o transgender Point 6 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must comply with the law whether on or off duty. The NSW Police Force is responsible for upholding the law. Unlawful and/or criminal conduct by employees of the NSW Police Force is incompatible with that role and also likely to bring the NSW Police Force into disrepute. All employees of the NSW Police Force are expected to comply with the law at all times. The NSW Police Force Respectful Workplace Behaviour Policy relevantly states: The NSW Police Force has a responsibility to provide a work environment that is safe, ethical, inclusive and productive. This means bullying, discrimination, harassment, vilification and victimisation will not be tolerated. Our commitment is to ensure that the NSW Police Force: • … • Builds a strong, adaptable and inclusive workplace in which bullying, discrimination, harassment, vilification and victimisation is not tolerated; • … • Takes appropriate action in relation to bullying, discrimination, harassment, vilification and victimisation as defined in the Respectful Workplace Behaviour Guidelines. The following principles underpin this policy statement: • Everyone is responsible for creating and maintaining a positive and supportive workplace free of harassment, discrimination, bullying, vilification and victimisation; • … • Behaviour that amounts to bullying, discrimination, harassment, vilification and victimisation will not be tolerated, will be taken seriously and may result in managerial or disciplinary action. Key responsibilities: • … • All staff - must not engage in behaviour that amounts to bullying, discrimination, harassment, vilification or victimisation, towards other employees, students, or any other person in circumstances where the employee's conduct could bring NSWPF into disrepute, or reflect on the employee's suitability to be a member of the NSWPF… The NSW Police Force Respectful Workplace Behaviours Guidelines relevantly state: All NSWPF employees are required as a condition of their employment to ensure that their behaviour is consistent with the standards of behaviour set out in the Code of Conduct and Ethics, including but not limited to: o interacting with others in a professional, courteous and polite manner that does not interfere with the health, safety and comfort of others o treating others in the way they wish to be treated o … … In NSWPF, a workplace equity matter involves behaviour outlined in the NSWPF Respectful Workplace Behaviours Policy Statement and these guidelines and falls under one or more of the following categories: o bullying; o discrimination; o harassment (on a discriminatory ground); o sexual harassment; o vilification; and o victimisation. … Harassment is unlawful under both State and Commonwealth legislation if: o it is unwelcome, uninvited or unreciprocated; and o a reasonable person would anticipate that the recipient would be offended, humiliated, intimidated; and o it is either sexual in nature or targets a person on a discriminatory ground. … Harassment can occur regardless of whether or not a person intended to harass another person. It does not need to be repeated or continuous; one-off incidents are capable of constituting harassment. It is important to note that what is acceptable to one person may not be acceptable to others. The test is whether, having regard to all the circumstances, a reasonable person would be offended, humiliated or intimidated. … Sexual harassment Examples o suggestive comments or jokes about a person's physical appearance or sexual characteristics o … o spreading sexual rumours; or intrusive questions abo (sic) sexual activity or insinuations about a person's private life The NSW Police Force Personal Use of Social Media Policy and Guidelines relevantly states: When posting on social media sites in a private capacity, NSW Police Force employees must behave in a way that upholds the values and reputation of the NSW Police Force. Employees must not discuss or disclose NSW Police Force information that is not publicly available, whether confidential or not. … Social media are a group of web-based applications that enable the creation and exchange of highly accessible user-generated content…Examples of social media include…WhatsApp… … Whether on or off duty a police employee's conduct reflects on the NSW Police Force. All employees must protect the reputation of the NSW Police Force by behaving in a lawful and appropriate manner. … In posting to social media sites in a private capacity: … ➢ do not post any material that may bring the NSW Police Force into disrepute, or otherwise embarrass the agency ➢ do not comment or disclose NSW Police Force information that is not publicly available, whether confidential or not… ➢ under no circumstances should offensive comments be made about NSW Police Force colleagues. This may amount to cyber-bullying which could result in managerial action or criminal proceedings for offences under the Criminal Code Act 1995 (Cwth) ➢ … ➢ obey the law - do not post any material that is prejudicial, defamatory, bullying, libellous, discriminatory, harassing, obscene or threatening, constitutes a contempt of court or breaches a court suppression order, discloses other people's personal information or infringes intellectual property, copyright or a trademark or is otherwise unlawful … Police employees who post inappropriate comments or photographs on social media are regularly subject to formal complaints from members of the public or other police employees. Management action taken against such employees range from formal counselling, warning notices or placement on a Conduct Management Plan, through to loss of increment and dismissal under 181D of the Police Act 1990. … The types of inappropriate posts that have led to complaints, investigations and management action for misconduct include: ➢ offensive comments about the abilities, intelligence, physical appearance and other personal attributes of colleagues ➢ negative comments about the competence of management or the NSW Police Force as a whole ➢ racist or other offensive comments about the local community ➢ flippant comments about the use of firearms ➢ photographs taken off duty that were intended to be humorous but included offensive text, images or symbols ➢ comments posted while on duty about current work tasks"
2. Under the heading "Consideration" in the Statement of Reasons, the respondent made the following observations with respect to the sexual harassment allegation relating to Constables Sonter and Bridges: "In regards to Allegation 1, I repeat what I set out in my Notice; there is no place for sexual harassment in the NSW Police Force. I do not accept your contention that Constables Sonter and Bridger are not 'victims'. Putting aside that you have provided me with no evidence or reference from either officer to suggest that they did not consider your comments unwelcome, the objective evidence in the transcript of the group chat is that, at the time, both officers expressed dissatisfaction about their rumoured sexual activities being discussed and asked for such messages to cease. Notwithstanding this, your comments regarding their sexual activities continued unabated. All members of the NSW Police Force should be able to speak with their colleagues, both on and off duty, without having their sexual activities discussed against their wishes. Indeed, rumours being shared with fellow officers about the sexual activities of colleagues is entirely improper and inappropriate, regardless of whether it is unwelcome or not. I have no tolerance for this kind of behaviour in the NSW Police Force."
3. In relation to allegation that the applicant engaged in the bullying of Constables Smith and Sonter (Allegation 3), the Statement of Reasons provided: "I am satisfied, on the balance of probabilities, although having regard to the seriousness of the allegation, that between 24 June 2017 and 5 October 2017, you posted various messages to the group chat you created on 'WhatsApp' that constituted bullying of: • Constable Anthony Betts-Smith; and/or • Constable Kyle Sonter, as detailed in the Table supplied with the supporting documentation to my Notice. Accordingly, I am satisfied that your conduct was contrary to subsections 7(a), 7(c) and 7(e) of the Police Act 1990, Points One, Three and Four of the NSW Police Force Code of Conduct and Ethics, the Respectful Workplace Behaviours Policy, the Respectful Workplace Behaviours Guidelines and the NSW Police Force Personal Use of Social Media Policy and Guidelines, as set out above in relation to Allegation 1. In addition to the extract set out above in relation to Allegation 1, the Respectful Workplace Behaviour Guidelines also relevantly state: The NSWPF has adopted the Safe Work Australia definition of workplace bullying, that is: "Workplace bullying is repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety". Examples of bullying behaviour may include but is not limited to: o abusive, insulting or offensive language or comments o aggressive or intimidating conduct o belittling or humiliating comments o being subjected to practical jokes o unjustified criticism o deliberately excluding or isolating employees o … o spreading misinformation or malicious rumours"
4. Under the heading "Consideration", the respondent stated in respect of the bullying allegations (Allegation 3): "In regards to Allegation 3, I similarly reject your contention, in your Response, that neither Constable Betts-Smith or Constable Sonter felt bullied. You have provided me with no direct evidence or reference from either officer to that effect. Further, it is not to the point. Bullying behaviour involves repeated comments, including the ostracising and belittling of colleagues, which gives rise to a risk to health and safety. It is not relevant that the risk may not have materialised. The fact is that you should not have been engaging in the behaviour to give rise to such a risk to begin with. Your lack of insight in this regard contributes to my lack of confidence in your suitability to remain a police officer. Again, it should go without saying that I do not tolerate bullying in the NSW Police Force. It is critical to the collegiate environment in which police operate that all sworn officers are able to work together harmoniously and collaboratively. A senior officer making belittling and derogatory comments toward junior officers, and ostracising colleagues by excluding them from the group chat when you deemed their contributions to be unsatisfactory in some way, is conduct that is entirely inimical to my expectations of a workplace that is free from bullying behaviour. This conduct is made all the more grave by the fact that various messages posted spoke to the negative impact the group chat was having on the Command and various officers, and yet, as the most senior officer involved, you still said and did nothing."
5. The parties agreed that the definition of harassment required that the conduct be "unwelcome, uninvited or unreciprocated." Similarly, there was no issue taken with respect to the respondent's definition of bullying contained in the respondent's Respectful Workplace Behaviour Guidelines. The applicant's central argument was that there was no evidence of a complaint made by the Constables identified, nor any supporting a conclusion that anyone felt sexually harassed or bullied.
6. The applicant submitted that this contention had not been contradicted by any of the participants in the group chat and it would be unfair and illogical for the Commission to approach the "dearth of evidence" in the way contended by the respondent, finding that the applicant has not discharged his onus in establishing that there were no victims.
7. The applicant argued that the respondent has at all times been on notice of this factual assertion, and if he wished to contradict it, it was for him to demonstrate this. Further, he argued that the Commission should find that the reason that the respondent did not call evidence to contradict the applicant's understanding is that none of the participants in fact felt sexually harassed or bullied.
8. With respect to the claim that the applicant's conduct was not unwelcome and there was no victim, the only relevant witness evidence (albeit of limited relevance) led by the applicant, was his. The applicant could only ever give evidence of his perception of how others felt. That evidence could have little weight to prove how the other participants actually felt about his contributions. The transcript of the group chat in evidence was specifically referred to in the Statement of Reasons as contradicting the applicant's assertions about his conduct not being unwelcome. There is, for example, evidence that the sexual comments of the applicant were unwelcome when Constable Bridger (Zyon) states, "Shut up cunt" when the applicant stated, "Hey why don't you and Crotty hook Zyon? You guys are both single": see [13] above in respect of the allegation of sexual harassment at 8:55 pm on 27 June 2017. By way of further example, it was also very clear from the transcript that Constable Sonter did not want his relationship with another Police Officer, Constable Goodier discussed and the applicant none the less persisted with his taunting.
9. The letters of support of Constable Harper from Constables Sonter and Smith do not assist the applicant's case. Putting aside the fact that neither of those officers was available for cross-examination, each was provided in support of Constable Harper, not the applicant. In the case of Constable Sonter, he stated that the comments of Constable Harper (not the applicant), "did not make me feel uncomfortable, nor did I believe they were offensive towards me" while Constable Smith's letter stated that he, "at no point felt offended or discriminated against when any comments were made towards me from" Constable Harper. Neither of the letters referred to or made any such comment in respect of the applicant. Nor did Constables Sonter or Smith make a more general comment to the effect that they were not offended by any of the communications made by anyone in the group chat.
10. The applicant could have, but did not call any of the participants from the group chat to support his case. In this regard, the fact that Constables Sonter and Smith provided references in support of Constable Harper in a separate disciplinary process only served to undermine the applicant's evidence that they were too scared to do the same for him: see the applicant's statement at [11]-[12]. In his evidence, the applicant stated that he sent a text message to Constables Sonter, Bridger and Smith, asking if they would provide him with a statement similar to the ones they had provided in support of Constable Harper. He states that he received text message responses from Constables Bridger and Smith stating, "they didn't believe anyone was sexually harassed because of the chat" however those text messages were not in evidence. The applicant did not state whether any response was received from Constable Sonter.
11. Each of Constables Bridger, Smith and Sonter could have been summonsed to give evidence by the applicant to make good his assertion that they did not feel sexually harassed and or bullied by him. They would have been required to give truthful evidence to the Commission and been legally protected from any adverse action for doing so by the respondent. It is appropriate to draw an inference that any evidence those Constables may have given would not have assisted the applicant's case. This is further supported by the onus the applicant has, at all times in the review, been required to prove his case that the Order was harsh, unreasonable or unjust.
12. In any event, there was a more fundamental issue with the applicant's case as it related to the allegations of bullying and sexual harassment: even if the Constables did not feel sexually harassed or bullied, the applicant's conduct, objectively considered, created a clear risk to each of them that they may have felt bullied or harassed. Further, the definition of bullying does not require that the conduct is unwelcome.
13. There is not a sufficient evidentiary basis upon which the Commission could find that the applicant has made out his case that he did not sexually harass Constables Bridger and Sonter or bully Constable Smith and Sonter on the basis that there was no victim. This is the case, even though the Statement of Reasons provides the respondent was satisfied to the Briginshaw standard. The applicant has not cast sufficient doubt upon the respondent's reasons which would require the respondent to counter his assertion. The authorities have been clear and consistent that something more than a mere assertion is needed to require the respondent to counter the claim with evidence. The applicant's case that there was no victim was no more than that - a mere assertion unsupported by probative evidence.
14. The applicant submitted that it was incumbent upon the respondent to make good its assertions that he had sexually harassed and or bullied his colleagues by his conduct in the group chat. The applicant referred the Commission to the case of Morris v Commissioner of Police [2020] NSWlRComm 1041 where Chief Commissioner Constant observed at [20]: "The purpose of the respondent's case is, as the Police Act provides, and as the Full Bench in Hosemans held, to answer the applicant's case. If the applicant advances any evidence or argument that might go to establishing that the removal was harsh, unreasonable or unjust, the onus of addressing that case, including the relevant evidentiary case, then falls on the respondent: Tredinnick v Commissioner of Police [2016] NSWIRComm 14 ("Tredinnick (No 2)") at [78].
15. The applicant submitted that the task of the Commission is to analyse each party's case and weigh up the evidence adduced by the parties, including the inferences to be drawn where evidence is not called and that the ultimate forensic position of whether anyone felt sexually harassed or bullied is neutral.
16. I agree that the statement of principle espoused in Morris following the Full Bench decision in Tredinnick remains a correct statement of the approach the Commission is required to take in considering reviews of this kind.
17. The authorities make clear that if the applicant's case is that he did not sexually harass or bully the alleged victims, he bears the onus of proving that fact.
18. This is not a hearing de novo where the Commission must determine the facts for itself. The respondent had no obligation to make out the misconduct in these proceedings. It was for the applicant to demonstrate that the Order was unfair for the reasons he asserts and he has had every opportunity to do that. Indeed, the Statement of Reasons explicitly references the absence of evidence or references from the alleged victims in answering the applicant's Response to the Notice. The applicant was squarely on notice of what was required of him to cast doubt on this aspect of the respondent's Statement of Reasons.
19. With respect to the allegation of sexual harassment, while I accept that the applicant viewed and understood the group chat and his impugned contributions to be "a joke" and "banter", I am of the view that on the balance of probabilities, a reasonable person, in all of the circumstances, would have anticipated that the subjects of his jibes about their sex lives would be offended and/or humiliated. In this regard, it is relevant that the conduct occurred amongst a large contingent of colleagues and there was evidence that the comments were not being well received.
20. I have been unable to accept that the applicant did not realise he was engaging in bullying behaviour in the group chat. In particular, I am unable to accept that the applicant did not know that he was bullying Constables Sonter and Smith when he called them names, such as "faggot", "coon" and "dog" and made racist remarks about Indigenous Australian's directed at Constable Sonter.
21. In defence of all of this conduct, the applicant presented that the group chat was a private forum for consenting adults. He argued that the distinction between what is private versus public is not to be determined by simple arithmetic, noting that, private clubs often have hundreds even thousands of members. Referring to the Macquarie Dictionary, Sixth Edition (2017), the applicant pointed the Commission to the following definition of the term, "private": "confined to or intended only for the persons immediately concerned; confidential: a private communication"
22. Based on this definition, the applicant submitted that there cannot be any doubt, and rather it ought to have been an uncontroversial issue, that the group chat was, and was intended to be, private.
23. I accept the applicant's characterisation of the group chat as being private in that it was intended for only those who were invited into it. However, it ought to have been apparent to those participating in the forum, including the applicant, that by virtue of its form (written transmitted messages) and the number of participants in the group (approximately 19 people), there was a very real risk that the communications could cease to be private and be disseminated outside the group. In fact, there was no evidence of there being anything other than an implicit understanding of the applicant that the messages in the group were private.
24. Given the nature of the correspondence between the participants, the group chat content created a significant reputational risk to the individuals and the NSW Police Force. This risk materialised in respect of a particular communication involving a citizen who was charged by Botany Bay Police Area Command. In the group chat, the arrest was the topic of discussion and the applicant referred to the 24 offences a citizen was charged with as being a "load up". A copy of the transcript was provided to the citizen in the context of court proceedings and ultimately all charges were formally withdrawn: see the AC Talbot affidavit at [34]-[37].
25. As a NSW Police Officer, the applicant had obligations to the respondent that extended to his conduct in his private life. So much is made clear by cl 9 of the Regulation which explicitly provides that a Police Officer who is off-duty, "is subject to the provisions of this Regulation and the Police Code of Conduct" and "will be held responsible for any misconduct by the officer while off-duty". On this basis alone, the applicant reliance upon the private nature of the communications fails.
26. While it may be considered unfair for an employer to call an individual to account for what happens in their private life, Police Officers occupy an important role in our society and it is reasonable for the respondent to expect that they do not conduct themselves in a way that will reflect poorly upon the NSW Police Force, even if that conduct occurs outside of their line of duty. It was difficult to discern that the applicant understood this obligation and its importance to the public's confidence in the NSW Police Force from his evidence.
27. It is also important to reflect that there was a clear connection between the group chat and the applicant's workplace. All of its members were from the applicant's workgroup. The title of the group chat, "Patrol Fairies 2.0" is an obvious reference to the police work of the officers. Many of the conversations related to members of the group and others within the workplace who were not. I agree with the respondent's submission that there is no material difference between the group chat and what might transpire in the muster room of the police station. It is clear from the content of the communications that the topics of discussion could and/or would have a direct impact on the workplace.
28. The respondent's evidence in response to the applicant's case included the affidavit of AC Talbot, the Commander of the Professional Standards Command. She gave evidence of extensive training being provided to NSW Police Officers in respect to the respondent's Respectful Workplace Behaviours Policy and Guidelines between early 2017 and 30 June 2018. This training was similar to training also rolled out in 2012 and 2013 albeit that then, the respondent's expectations with respect to appropriate workplace behaviour was set out in predecessor policies. AC Talbot states that the applicant would have received this training: see [50] of AC Talbot affidavit. The applicant had received training on: 1. Respectful Workplace Behaviours on 28 October 2011; 2. The Code of Conduct on 16 May 2013; 3. Being a Leading Senior Constable on 15 June 2017 and 18 October 2018; and 4. His duty to report misconduct on 26 September 2017.
29. In any event, the applicant was obliged, pursuant to Point 3 of the Code of Conduct and Ethics, to know and comply with all policies and procedures of the respondent. Although the applicant had received relevant training that ought to have alerted him to his obligations, it is concerning that he submitted that he would need specific training on why his conduct in the group chat fell short of the respondent's expectations for him to understand this given the important role he occupied as a Police Officer.

Allegation 2 - Inappropriate and or unprofessional conduct, including harassment on discriminatory grounds

1. In the Statement of Reasons, the respondent made the following findings with respect to the allegation that the applicant posted various unprofessional and/or inappropriate messages, including messages that constituted harassment on discriminatory grounds: "I am satisfied, on the balance of probabilities, although having regard to the seriousness of the allegation, that between 24 June 2017 and 5 October 2017, you posted various unprofessional and/or inappropriate messages to the group chat you created on 'WhatsApp', as detailed in the Table made available to you with the supporting documentation to my Notice. I am also satisfied, on the balance of probabilities, although having regard to the seriousness of the allegation, that a number of those messages, as indicated in the Table made available to you with the supporting documentation to my Notice, involved harassment based on a discriminatory ground (or in other words, were racist and/or homophobic in nature). Further, I am satisfied, on the balance of probabilities, although having regard to the seriousness of the allegation, that a number of the messages involved derogatory comments about various members of the NSW Police Force. Accordingly, I am satisfied that your conduct was contrary to the subsections 7(a), 7(c) and 7(e) of the Police Act 1990, Points One, Three and Four of the NSW Police Force Code of Conduct and Ethics, the Respectful Workplace Behaviours Policy, the Respectful Workplace Behaviours Guidelines and the NSW Police Force Personal Use of Social Media Policy and Guidelines, as set out above in relation to Allegation 1. In addition to the extract set out above in relation to Allegation 1, the Respectful Workplace Behaviour Guidelines also relevantly state: Harassment on a discriminatory ground Examples o material that is sexist, racist, ageist, homophobic and so on, that is placed in someone's workspace or belongings, or on a computer, ipad [sic] or tablet o verbal abuse or comments that put down or stereotype people generally, or an individual particularly because of their sex, race, homosexuality, disability and so on o jokes based on gender, race, marital status, homosexuality, disability, age, marital status, carer's responsibilities or transgender status o offensive communications (including letters, phone calls, emails, text messages)
2. Under the heading "Consideration", the respondent stated with respect to this allegation: "In regards to Allegation 2, the objective content of numerous messages you sent, as outlined in the Table made available to you with my Notice, was wholly inappropriate and unprofessional, and in some cases, completely vulgar and distasteful. This misconduct is only made more grave by the fact that a number of messages are deliberately disrespectful of colleagues and insubordinate, while others are racist or homophobic in nature. Further, as I set out in my Notice, the fact that these conversations have been recorded in writing on social media only carries the real potential for those messages to be more widely disseminated, irrespective of the fact that 'WhatsApp' is encrypted. If this occurred, it would bring the NSW Police Force into serious disrepute. Perhaps most alarming is that, in your Response, while you seem to accept that your profane language, and some (unidentified) messages, were inappropriate, you still deny Allegation 2 and do not accept your conduct was unprofessional or inappropriate. Indeed, you suggest that you are entitled to say whatever you want while off-duty, without 'censorship', entirely inconsistently with the fact that, as you should know, the Code of Conduct and Ethics applies to you when you are off-duty. Further, the fact that you contend that I need to explain to you how the message, "Bout time cunt" is unprofessional and inappropriate, when directed to a colleague, speaks volumes. These matters suggest such a significant absence of insight, and is such a substantial failure on your part to take any responsibility for your own conduct, that I simply do not see how I can have confidence in you consistently meeting the standards of conduct expected from police officers in the future."
3. The applicant admitted that he engaged in inappropriate and/or unprofessional conduct in the group chat in his Response and before the Commission and that it constituted a breach of the respondent's policies. However, he argued that it was not serious misconduct and should be considered at the "lower end of the scale" of seriousness. I have considered this in the context of the applicant's argument that the Order was harsh.

Allegation 4 - reporting misconduct of others

1. In the Statement of Reasons, the respondent made the following findings with respect to the allegation that the applicant did not report the misconduct of other officers in the group chat: "I am satisfied, on the balance of probabilities, although having regard to the seriousness of the allegation, that you failed to report the misconduct of numerous police officers, including: • Senior Constable Ben Vizzone; • former Senior Constable George Kyriacou; • Constable Jenna Harper; • Constable Dean Farman; and • Constable Jordan Crotty, in circumstances where each of them posted unprofessional and/or inappropriate messages to the group chat at various times between 2:00pm on 24 June 2017 and 6:40am on 5 October 2017. Accordingly, I am satisfied that your conduct was contrary to subsections 7(a) and (b) of the Police Act 1990 and Point One of the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegation 1. I am also satisfied that your conduct was contrary to section 211F of the Police Act 1990 (as in force at relevant times), clause 50 of the Police Regulation 2015 (as in force at relevant times), Point 10 of the NSW Police Force Code of Conduct and Ethics, and the NSW Police Force Personal Use of Social Media Policy and Guidelines. Section 211F of the Police Act 1990 (as in force from 1 July 2017 onwards) relevantly states: Members of NSW Police Force under duty to report misconduct of police officers (1) A police officer who has reasonable grounds to suspect that another police officer has engaged in police misconduct or serious maladministration is under a duty to report that police misconduct or maladministration or alleged misconduct or maladministration in writing to another police officer who is of the rank of sergeant or above and is more senior in rank than the police officer with a duty to report (a senior police officer). … Clause 50 of the Police Regulation 2015 (as in force between 24 June 2017 and 30 June 2017) relevantly stated: Police officer to report misconduct (1) If: (a) an allegation is made in writing to a police officer that another police officer has engaged in conduct which, in the opinion of the officer to whom the allegation is made, constitutes a criminal offence or other misconduct, or (b) a police officer sincerely believes that another police officer has engaged in any conduct of that kind, the officer is required to report the conduct or alleged conduct by the other officer to a senior police officer (being a police officer who is more senior in rank than the officer making the report). Point 10 of the NSW Police Force Code of Conduct and Ethics (as amended on and from 1 July 2017) relevantly states: An employee of the NSW Police Force must report the misconduct of other NSW Police Force employees. All NSW Police Force employees must report misconduct. This includes criminal offences, corrupt or unethical conduct, serious mismanagement and substantial waste of public resources. Further, employees are encouraged to challenge inappropriate behaviour. Further to the Code of Conduct, all NSWPF employees have a legislated duty to report misconduct. Under section 211F of the Police Act 1990, a police officer or administrative employee who has reasonable grounds to suspect that a police officer has engaged in police misconduct or serious maladministration is under a duty to report that police misconduct or maladministration (or alleged misconduct or maladministration), in writing, to a police officer who is of the rank of sergeant or above and is more senior in rank than the reporting officer. The NSW Police Force Personal Use of Social Media Policy and Guidelines relevantly states: If a NSW Police Force employee becomes aware of a social media site or posting that is illegal, the matter should be reported to the relevant Local Area Command or Specialist Command. Police officers who become aware of actions on social media by other police officers which they believe constitute a criminal offence or other misconduct, are required by clause 49 of the Police Regulation 2008 to report the matter to a senior officer. … Should an employee become aware of a social media site or posting that generally damages the good reputation of the NSW Police Force…please advise the Digital Media Coordinator, Public Affairs Branch…"
2. Under the heading "Consideration" in the Statement of Reasons, the respondent examined the applicant's responses to the allegation of a failure to report the misconduct of his colleagues in the context of his responses to Allegation 2. The respondent stated: "Allegation 4 is in a similar category [to Allegation 2]. I am disturbed by the suggestion in your Response that, even with the benefit of hindsight, you do not consider that you or anyone else participating in the group chat engaged in misconduct. Again, this contention is illustrative of your lack of insight and apparent inability or unwillingness to take any responsibility for your own behaviour. This is made all the more concerning by the fact that, at the time, you were the most senior officer participating in the group chat, and were plainly responsible for its creation, for maintaining the list of members who could also participate, and were the predominant contributor to the unprofessional and inappropriate messages that flourished on that platform. As a Leading Senior Constable, you should have been the first person to step in and put a stop to the group chat, and report the misconduct, particularly having regard to the fact that you completed the training module 'Duty to Report Police Misconduct' on 29 August 2017. Instead, you still maintain today, despite the voluminous inappropriate messages in the group chat, that you had no misconduct to report. Indeed, despite being the senior officer, it was you who led and condoned the inappropriate behaviour engaged in by your colleagues and subordinates. If anything, your Response confirms that you do not take your obligation to report misconduct seriously. You have provided me with only select extracts from the Facebook Messenger exchange, rather than report the misconduct of any colleagues by supplying me with the entire unedited exchange. You contend you have been spoken to in a sexual way by senior officers during your career. You provide me with pictures of magazines in the locker room, photographs of an officer misusing Police time, and a screen shot of an officer posting inappropriate content on Facebook. However, you did not report any of this misconduct at the time it occurred. You only raise it in your Response with a view to defending your own misconduct. Once again, this illustrates your limited insight."
3. As stated above, the applicant admitted that the group chat contained evidence of misconduct that he failed to report in accordance with his obligations to do so. Accordingly, he did not deny the allegation as such. Rather, his case was that he could not be held responsible for not reporting the conduct because he did not know it to be misconduct at the time. It was concerning that the applicant maintained throughout the proceedings ignorance with respect to the inappropriateness of his and his colleagues conduct through their participation in the group chat, particularly as the most senior person in the group chat.
4. For the reasons set out above, I do not accept that the applicant did not know that he and his colleagues engaged in misconduct. Even if he did not know that what he was observing was misconduct, he ought to have known it was.

Allegation 5 - misusing the respondent's time

1. In the Statement of Reasons, the respondent documented thirty-nine (39) dates upon which the applicant engaged in the group chat whilst on duty, concluding: "… I am satisfied that your conduct was contrary to Point 3 of the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegation 1. I am also satisfied that your conduct was contrary to Point 2 of the NSW Police Force Code of Conduct and Ethics and the NSW Police Force Personal Use of Social Media Policy and Guidelines. Point 2 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must act with care and diligence when on duty. As an employee of the NSW Police Force you must carry out your work professionally. This means paying all due care, attention and diligence to your duties, fulfilling them to the best of your ability and supporting other employees to do the same. The NSW Police Force Personal Use of Social Media Policy and Guidelines relevantly states: The Use of Resources Policy states that employees are required to perform their duties with minimum disruption. While limited use of resources for personal reasons is allowed, excessive breaks for non-work related activities, such as accessing social media sites, is considered a misuse of police time. Any use of a personal or police electronic device to access social media for personal reasons while on duty should be infrequent and brief, not disrupt normal business (e.g. does not interfere with the employee's work responsibilities or the work of others) and not involve activities that might be questionable, controversial or offensive…"
2. The applicant's defence with respect to this allegation was twofold: 1. At no time did his work performance suffer as a result of his participation in the group chat, he did not take excessive breaks to do so and that it only took seconds to send each message; and 2. It was common practice for officers to send personal messages and use social media while on duty and it is unfair that he has been targeted for doing so while others have not.
3. With respect to the second aspect of the applicant's defence, he relied upon a photo of a Senior Constable playing golf while on duty which he attached to his Response.
4. The applicant did not lead any probative evidence to substantiate his claim that he was being unfairly targeted with respect to this allegation. For example, there was no evidence of whether the respondent was aware of the picture of the Senior Constable playing golf before the proceeding, nor any other witness to substantiate the applicant's claim.
5. There was no analysis with respect to the amount of time the applicant had spent in the group chat such that there could be an evaluation of the applicant's claim that the allegation was unfair.
6. Although the applicant did not discharge his onus in establishing his defence with respect to this allegation, I think that it is appropriate to reflect that in the scheme of all of the allegations against him, this was less serious than the other conduct made out against him.

Was the removal of the applicant harsh?

1. The applicant argued that the termination of his employment was harsh in all of the circumstances. The evaluation of whether the decision to remove the applicant was harsh occurs within the particular statutory context of the Police Act. Notably, s 181F(3) mandates that consideration mush be given to the interests of the applicant and the public interest, which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1): s 181F(3).
2. Both parties referred to the oft quoted statement of principle enunciated by Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 at 233: "In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence."
3. This statement of principles was considered in Martin Evans v NSW Police [2005] NSWIRComm 404 by Boland J at [36] (Evans). The application of those principles in view of the requirements of s 181F was considered by Walton J in Lawrance v Commissioner of Police [2010] NSWIRComm 149, at [25] as follows: "Before turning to mitigating circumstances, it is appropriate to reflect upon an observation made by Schmidt J, in the minority, in Evans (at [84]). Her Honour accepted, as being open to the trial judge in an application pressed upon the ground of harshness, various considerations, including the nature and degree of the conduct engaged in by the police officer and other mitigating circumstances such as his remorse, good character, steps taken to deal with his drinking problem and other personal and financial circumstances. These, her Honour found, were relevant, even when the officer had engaged in serious misconduct. In this respect, Schmidt J accepted the trial judge's reliance upon Metropolitan Meat Industry Board. However, her Honour observed that what might be found as an unfair dismissal under Pt 6 of Ch 2 of the IR Act on the grounds of harshness might not be necessarily so concluded in proceedings under Div 1C of Pt 9 of the Police Act because what was not required to be considered in Metropolitan Meat Industry Board was how the conclusions (relevant to the principles in Metropolitan Meat Industry Board) were to be balanced with the public interest in "the maintenance of the integrity of the Police Service". That observation may be accepted and is broadly consistent with the approach of the Full Bench in Brennan at [70] and [71]. However, there is an observation and a qualification which should be made. First, by way of observation, I apprehend her Honour accepted, and I agree, whilst s 181F(3) is applicable (as earlier noted) to the assessment of harshness, that approach does not alter the factors applicable to the assessment of harshness, per se, namely, those stated in Metropolitan Meat Industry Board. Nor do those public interest considerations relieve the Commission of the need to fully assess the ground of harshness, when it is raised, in accordance with the factors stated in Metropolitan Meat Industry Board. Secondly, by way of qualification (as noted by the majority in Evans), the considerations arising under s 181F(3) do not dominate or necessarily determine a review when the issue of harshness is raised, but are to be weighed in the balance in accordance with the aforementioned principles (see also the approach adopted by the Full Bench in Johnston at [35] and [36])."
4. The applicant submitted that the removal was disproportionate to the gravity of the conduct, with reference to the following statement of principle of the Full Bench at [71] in Little v Commissioner of Police (No 2) (2002) 112 IR 212: "The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act."
5. This submission was advanced orally and at [36]-[45] of the applicant's Supplementary Submissions as follows (footnotes omitted): "36. Section 181F(3)(a) of the Act directs attention inter alia to the interests of an applicant in determining whether his removal was harsh, unreasonable or unjust. The present Applicant is also a father of an 18 month old child and wife who is currently working part time and whom was forced to return to work in order to support their family, including servicing a debt (secured by way of mortgage) of over $320,000.00. It is uncontentious that he is remorseful about his conduct and it has deeply affected him and his family emotionally and economically. 37. In the Applicant's submission his removal was disproportionate to the gravity of the misconduct. … 38. The Applicant submits that the extreme step of removing him from the Police Force, to which he has dedicated the entirety of his working adult life for some 15 years, for what is essentially inappropriate (not criminal or corrupt) conduct over a limited period of 3 months is prima facie harsh. It is highly significant that he had never been directed to stop participating in the chat forum, never been warned, never been counselled, nor that he had previously engaged in the conduct yet proceeded heedless of the error: cf Smith v Secretary, Department of Industry [2018] NSWIRComm 1065; Batterham and others v Dairy Farmers Limited t/as Dairy Farmers [2011] FWA 1230; Ian Anderson v Rogers Seller & Myhill Pty Ltd [2007] WAIRComm 218. …. 40. In the present case, the Respondent has taken the most extreme disciplinary action available to him: removal. With respect to the Respondent, it is uncontroversial on the evidence that matters akin to the present either go unactioned, or result in far less serious sanction. In the present matter, if the Commission does reinstate the Applicant he will, by virtue of having been without pay for almost a year, as well as the inevitable reduction in rank from Leading Senior Constable to Senior Constable, have received a very serious sanction. However, that result would, respectfully, be more proportionate than being permanently removed. 41. It is not insignificant that the conduct with which Boland J was concerned in Evans was established criminal conduct resulting in a conduction."
6. Although the applicant admits his participation in the group chat, which he acknowledged were at times lurid and grotesque, he argued that the conduct occurred within a private forum, among consenting adults and there were no victims. He sought to characterise the conduct as a "joke", "banter" and a type of "black humour" that was a part of the NSW Police Force culture, referring the Commission to the decision of Commissioner of Police v Anderson BC9605023 (Court of Appeal 21 October 1996) (Mahoney ACJ and Beazley JJA) where Meagher JA stated, "we are living in a post Chatterley, post-Wolfenden age". Although the applicant did not argue that this invalidates the reason for removal, he contended that it assists his position by placing the seriousness of the conduct in its proper perspective. During oral submissions, the Commission was urged to find that the misconduct was at "the lower end of the scale" (see for example, Tcpt, 9 July 2020, p 36 at (27-45); p 44 (46) - p 45 (4) and not serious transgressions (see Tcpt p 43 at Ln 28 Ln 32).
7. The applicant submitted that it was highly significant that he had not been trained in the relevant polices he was alleged to have breached. He submitted that it followed from this that the conduct could not be considered deliberate or wilful misconduct. The applicant had received relevant training prior to the conduct occurring, including in respect of the Code of Conduct and predecessor policies: see [94]-[95]. Although the applicant had not received specific training that he could not conduct himself the way he did on the social media platform "WhatsApp", he should have known that this was not appropriate or consistent with his obligations to the respondent from his knowledge of the Code of Conduct and training he had received.
8. In oral submissions, the applicant also referred to the current economic circumstances prevailing as a consequence of the Coronavirus pandemic and its potential impact upon the applicant and his wife's future employment situations (Tcp 9 July 2020 p 51 ln 36 - p 52 ln 19). Further, the applicant pointed to the specialisation of the occupation and training received by the applicant over the course of his career as a Police Officer as a matter that should be taken into account (Tcp 9 July 2020, p 58 Ln 32 - p 59 Ln 9).
9. On the issue of contrition and likelihood of future conduct, the applicant submitted that since the closure of the group chat, he has had a child and undergone a period of personal growth and reflection and would not conduct himself in the same way again. Similar sentiments were expressed in the applicant's Response where he acknowledged that he had not set a good example for his friends and work colleagues which he should have as the more senior officer: see Response at [59]-[62].
10. Another theme in the applicant's submissions was that if the Commission were minded to return the applicant to the NSW Police Force, the two years he has waited for the outcome is punishment enough, additional to the significant financial punishment.
11. Objectively considered, the applicant's conduct through his contributions to the group chat was serious misconduct. Among a large contingent of his work colleagues, the applicant referred to an Indigenous colleague as a "coon" and made generalised racist remarks about Indigenous people; he ranked his female colleagues based on their appearances; called participants names including, "faggot", "cunt", "vag"; told colleagues to "go down on each other" and teased others with respect to their sex lives. This is not acceptable conduct anywhere in Australian society and the "black humour" reportedly present in the Police Force is an insufficient explanation for his personal decisions and behaviour. It was disgraceful and unacceptable conduct, not at the lower end of the scale of seriousness of employee misconduct.
12. The conduct did not occur in the context of a momentary lapse of self-control, but over a period of several months. Further, the seriousness of the conduct is aggravated by the applicant's position as the most senior person in the group chat. He had positional power among the group and could have called out the behaviour of his colleagues. He had a leadership role and obligation to model appropriate behaviour and ensure compliance with the respondent's policies by others. Instead, as the most senior person in the group chat, he created an environment where racist and sexist remarks were normalised, seemingly without concern about the impact this would have on workplace culture. The applicant claimed that at the time, he did not understand that this was wrong and contrary to the respondent's policies. This is so unlikely that I have been unable to accept the applicant's evidence that this was the case.
13. The applicant did not present a sufficient evidentiary basis upon which the Commission could accept his submission that there was no victim to his conduct: see [71]-[84] above.
14. As referred to above at [85]-[86], I accept that the applicant believed that he was engaged in "a joke" or "banter" among friends in the group chat (as he consistently emphasised in his evidence under cross-examination), although he must also have known he was sometimes bullying Constables Smith and Sonter and ought to have known the potential negative impacts of his comments on his colleagues and the culture of his workplace.
15. For the reasons I have already stated, there was a clear connection between the workplace and the group chat and the applicant had an obligation to act in accordance with the respondent's policies, even in his private life: see [87]-[93] above.
16. I reject the applicant's argument that he was a product or victim of a poor culture within the NSW Police Force which somehow made him blind to the fact that he was doing the wrong thing or misunderstood what was expected of him. As an experienced officer, it was not open to the applicant to say that he had observed others breaching the respondent's policies, so he thought he could too. Instead what was required and reasonably expected of him was that he comply with the respondent's policies.
17. The NSW Police Force has been on a journey towards a more positive work culture in recent decades, with recommendations arising from the Wood Royal Commission (Wood Commission), a report published by Chris Ronalds SC into sexual harassment and sex discrimination (the Ronalds Report) and more recently a review by former Sex Discrimination Commissioner, Elizabeth Broderick AO into the promotions system and its impact upon women (the Broderick Report). In addition, in 2018 and 2019, there was a NSW Parliamentary inquiring into bullying in the emergency services agencies, which resulted in various recommendations being made, including to the NSW Police Force (Bullying Inquiry). Each of these bodies of work has pointed towards aspects of the culture of the NSW Police Force that could do with improvement.
18. The efforts of the respondent to address the issues identified by the Wood Commission, the Ronalds and Broderick Reports and the Bullying Inquiry were documented in the evidence of AC Talbot. The respondent has put in place policies and other initiatives aimed at driving a positive work culture within the NSW Police Force including training the applicant had the benefit of, informing him of how he was to behave and his obligation to report the misbehaviour of others.
19. I find that on balance, the applicant was exposed to aspects of the NSW Police Force culture that were not consistent with the respondent's stated values or policies. However, I also find that he was aware of what was expected of him and to the extent that he experienced those aspect of the NSW Police Force culture that were inconsistent with those expectations, his personal decision to not report it, but instead embrace poor conduct himself and perpetuate poor conduct among other police officers, is evidence that he is does not have the personal qualities required to be a NSW Police Officer.
20. The applicant argued that the transcript of the group chat was obtained by an unlawful direction and/or conduct and therefore should be given less weight: see [30]-[35] of the applicant's Supplementary Submissions.
21. There was very limited evidence before the Commission with respect to this argument which was raised for the first time in final oral submissions. The applicant referred to his written evidence where he deposed that he understood one of the senior Police Officers issued a direction to one of the participants to the group chat to produce his phone: applicant's statement at [16]. AC Talbot gave evidence under cross-examination that she was effectively unaware of how the transcript was acquired (Tcpt, 7 July 2021, p 9 (38-49)).
22. The applicant did not establish the factual basis of this argument, that the transcript was unlawfully acquired. In any event, it is difficult to understand how the Commission could have given "less weight" to the transcript when the applicant has admitted the content of it and does not deny that it accurately reflects his contributions to the group chat.
23. The submission with respect to the transcript being given "less weight" and indeed, the broader submission that the applicant's conduct was at the lower end of the scale of seriousness, raises serious questions about the extent to which the applicant was willing to take responsibility for his conduct and understood how reprehensibly he had behaved.
24. The applicant submitted that he was contrite and remorseful for his conduct. The applicant admitted his conduct was inappropriate in his Response and under cross-examination and stated that he had spent a lot of time reflecting upon it while awaiting the hearing of the matter. This show of contrition was difficult to reconcile with his submissions that the conduct that he engaged in was not serious misconduct. The applicant spent a considerable amount of energy in these proceedings trying to deflect the blame for his actions and downplay the content of the group chat. There was limited evidence of any insight by the applicant that people may in fact have been offended by his conduct, seemingly because he considered it to be a "joke" and he believed everyone else took it as such. He did not take ownership of how his conduct brought the NSW Police Force into disrepute and encouraged an inappropriate workplace culture at Botany Bay Local Area Command.
25. The applicant claimed that the outcome of his removal from the NSW Police Force was manifestly unjust because there was a marked inconsistency in the treatment of the applicant when compared to other Police Officers in the group chat. He did not accept that this could be explained by his more senior position of Leading Senior Constable given other participants used very similar language. The applicant relied upon the decision of Boland J in Evans in support of this argument.
26. The applicant referred the Commission to other decisions of tribunals involving analogous conduct and where dismissal was found to be unfair, including Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333 at [188].
27. While there was clearly inappropriate content posted in the group chat from a number of the Police Officers, and each could be said to have failed to have reported the misconduct they observed, there was no analysis presented to the Commission to allow an actual comparison of the relative gravity of the other member's contributions to support this submission. In evidence was a list of disciplinary outcomes for a number of Police Officers in the group chat. In addition to the applicant being served with an s 181D Notice for removal, two other Police Officers also received such notice. With respect of one of those Police Officers, the respondent decided to he had not lost confidence in her after reviewing her response to the s 181D Notice and she was instead subject to a disciplinary transfer: see Ex R3 and applicant's statement at [17]. The applicant attempted to argue, without probative evidence, that with respect to the other Police Officer subject to an s 181D Notice, he had negotiated a different outcome in conciliation before this Commission, stating that, "at the relevant time he was subject to a Conduct Management Plan and I think (although I cannot be certain) it was the second Plan that he had been subjected to. I understand that he was removed for reasons that were not limited to participating in the WhatsApp group chat."
28. Whether this was the case or not, the Commission was not apprised of all of the matters that may have been relevant in the consideration of the appropriate disciplinary outcome for any of the officers the applicant claimed were treated more fairly than him, such as their employment history and their personal circumstances. The applicant was the most senior person in the group chat and as I have expressed already, this was an aggravating feature of conduct which may well have differentiated his circumstances from others. Ultimately, I find that the applicant has not been persuasive in this submission.
29. The applicant had served in the NSW Police Force for over a decade when he was removed by the Order. He gave evidence of his good service, however, his employment history was not unblemished. In evidence was a document evidencing historical, "Performance and Behavioural Issues" of the applicant that resulting in a six (6) month Conduct Management Plan. A number of concerns were listed that had some parallels with behaviour in the group chat including, "Unprofessional conduct at a training exercise" and "Unprofessional behaviour at crime scene search (bragging about taking photo of severed hand)." There were four (4) other instances of the applicant being counselled between 2007 and 2009. These issues were aged and therefore of limited relevance, however, they demonstrate that the applicant's record was not otherwise unblemished. It is acknowledged that the applicant has not previously been warned for like conduct and I have taken this into account in balancing the relevant factors in this matter. The applicant also received a number of positive remarks for his work including from members of the community and Kensington Palace, England for his assistance and high level of professionalism during a Royal visit in 2014: see also [12] of the Response. The applicant continued to rely upon the character references presented in his Response of Sergeants Schiavello and Downing, and Senior Constable Paul which I have considered.
30. The applicant has a family home with a mortgage of appropriately $320,000. He gave the following evidence with respect to his personal circumstances at [6]-[7] of the applicant's statement: "…my baby daughter, Rosie, is now 13 months old. I have had to convert my home loan from an interest and principal loan to an interest only loan and I am paying $1,100 per month. I also have a car loan and in a total amount of $30,000 which I am paying off at $700 per month. My wife, Katie, returned to work in human resources as a result of my removal. She earns approximately $120,000 per annum (gross), but after paying a mortgage, car loan, and all other utilities and household expenses, we are struggling financially since I was removed from the Police Force in November."
31. The applicant gave additional evidence with respect to his personal circumstances at the hearing including that he remained out of work, that his wife's hours had been cut to two days or less and that his family had been wiped out financially as a result of these circumstances.
32. I acknowledge the applicant's situation as difficult. His removal from the NSW Police Force came at an inopportune time, with the arrival of his first born child and the pandemic impacting upon the economy with less employment opportunities for him and his wife. The applicant's wife's earning capacity exceeded his, but they had hoped she could care for their child without working and be supported on his lower income.
33. I also acknowledge and have taken into account the considerable investment both personal and of the public, in the training of the applicant to be a Police Officer. The skills are tailored and specific to this vocation. However, there are many aspects of the applicant's skills and experience that are transferrable and he should be able to find work outside of the NSW Police Force, albeit, this will not be in the career he wanted.
34. In addition to the interests of the applicant, the Commission in the review is required to take into account the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)).
35. AC Talbot gave evidence setting out how the NSW Police Force is actively seeking to eradicate sexual harassment from the workplace, in addition to inappropriate behaviour more generally. I agree that there is a strong public interest in ensuring the NSW Police Force is a workplace free from harassment and bullying. In this regard, the Order sends a message to other Police Officers that the kind of conduct engaged in by the respondent is serious and will not be tolerated by the respondent.
36. I agree with the respondent that it is important for all Police Officers to follow policies and procedures to ensure that the NSW Police Force is complying with its legislative requirements and upholding its reputation. Further, it is important that Police Officers, particularly those in leadership positions, report misconduct when it occurs. The statutory obligation to do so followed the findings of the Wood Royal Commission and is designed to ensure public faith in the NSW Police Force can be maintained. There is a clear public interest in ensuring the public trusts the NSW Police Force.
37. Although I agree with the respondent's submission that there is a public interest in not returning a person to the Police Force in circumstances where there is a risk they will become compromised again, I am of the view that the applicant probably would not engage in the type of banter that has led to his dismissal again: Paul Gardiner and Commissioner of Police [2009] NSWIRComm 84 at [146].
38. However, the applicant's lack of insight into his conduct and failure to fully accept responsibility are such that I do not believe he could be trusted to comply with the respondent's policies in the future. He has demonstrated through his conduct and the way that he has sought to explain it that he is not an appropriate person to be a NSW Police Officer for the reasons I have already set out.
39. The expression "integrity", as it appears in the Police Act, includes concepts of both personal integrity of the individual officer and institutional integrity of the NSW Police Force. Personal integrity includes consideration of whether the officer is a person of sound moral principle and character which may involve questions of honesty, uprightness and sincerity: see Toshack v Commissioner of Police [2009] NSWIRComm 31 at [44]-[49]. In my view, the applicant's conduct for which he was disciplined, but also his incapacity to accept the seriousness of it and take full responsibility for it demonstrates that he is not a person who can claim to possess the personal quality of integrity. In these circumstances, the public interest in maintaining the integrity of the NSW Police Force is met by the applicant's removal as a Police Officer.
40. I have specifically considered the applicant's interests and the personal impact this will have upon him and whether an alternative order might serve the public interest and be a more proportionate outcome. However, weighing all of the facts and circumstances of this review, including the public interest, I have concluded that the Order for his removal should remain.
41. For these reasons, I have decided to dismiss the application.

Order

1. I make the following order: 1. The proceedings are dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 March 2021