7 The Applicant relied upon the following employment entitlements in the context of a duty failure allegation, investigation, finding and consequent workplace guidance:

1. The right to be informed of any alleged failure to perform his duties as a police officer;
2. The right to be informed of the evidence upon which the Respondent based a finding of duty failure; and

1. The right to procedural fairness and the opportunity to be heard, including the right to be represented and, if necessary, to challenge any such evidence.

8 These employee entitlements arise under the Applicant's contract of service, which encompasses related employee awards, rules and guidelines (described below), and the Victoria Police Act 2013 (VP Act).

9 Whilst engaged in employment activity, the Applicant was denied his employee entitlements in the following circumstances:

1. In the investigation of an incident arising from a third party complaint;
2. In the communication of a duty failure finding;

1. In the recording of adverse entries in his professional records;[1]

1. When the Applicant attempted to rely upon a grievance procedure; and
2. When the Applicant sought to have his professional records corrected.

10 The Tribunal further found that, in breach of s 104(1)(g) of the EO Act, the Respondent victimised the Applicant by threatening to subject him to disciplinary action because he had alleged discrimination as described above, which was a substantial reason for such threatened treatment.

11 In consequence, the Applicant has suffered detriment by way of a prolonged adverse impact to his mental health; delayed financial increments; and a sense of professional insecurity and pessimism for his career prospects, for which he is entitled to be compensated.

12 The Tribunal is empowered to deal with the Applicant's claims under s 122 of the EO Act which provides:

122 Application may be made to Tribunal in respect of dispute

A person may make an application to the Tribunal in respect of an alleged contravention of Part 4, 6 or 7, whether or not the person has brought a dispute to the Commission for dispute resolution.

13 The Applicant bears the onus of proving that the Respondent engaged in the conduct alleged. The standard of proof has been variously described in the context of different cases. However, a useful starting point are the principles expressed by the High Court in Briginshaw v Briginshaw:[2]

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.

14 If the facts, without explanation, contain no direct proof of discrimination of the kind alleged, then the Tribunal may still be able to draw an inference of discrimination as the most probable explanation. However, such a finding should not be lightly inferred and may not be justified if there is a reasonable and innocent explanation for the conduct, not consistent with the type of discrimination charged.

15 The Applicant's claims rely upon several definitions and provisions of the EO Act, which are set out below for easy reference.

16 The Applicant alleges that Victoria Police (VicPol), and its employees, engaged in acts of direct discrimination contrary to sections 8 and 18 of the EO Act.

17 Section 8 defines direct discrimination for the purposes of the EO Act:

(1) Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

(2) In determining whether a person directly discriminates it is irrelevant -

(a) whether or not that person is aware of the discrimination or considers the treatment to be unfavourable;

(b) whether or not the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason.

18 The term 'unfavourable treatment' is not defined in the EO Act but it is understood to bear its ordinary meaning which includes adverse treatment and humiliation.[3]

19 Section 4 contains the following relevant definitions:

detriment includes humiliation and denigration;

(a) employment under a contract of service, whether or not under a federal agreement or award;

(a) an employee, in the employee's individual capacity -

(i) making a reasonable request to the employee's employer, orally or in writing, for information regarding the employee's employment entitlements; or

(ii) communicating to the employee's employer, orally or in writing, the employee's concern that the employee has not been, is not being or will not be given some or all of the employee's employment entitlements ...

employment entitlements, in relation to an employee or a contract worker, means the rights and entitlements of the employee or contract worker under an applicable -

(c) minimum wage order under the Fair Work Act 2009 of the Commonwealth; or

20 Section 6 lists the attributes on the basis of which discrimination is prohibited in the areas of activity set out in Part 4. The Applicant relies upon the attribute of:

21 Section 18 lists the circumstances in which an employer must not discriminate against an employee. In this case the Applicant alleges that he suffered a detriment under s 18(d):

An employer must not discriminate against an employee -

(d) by subjecting the employee to any other detriment.

22 Section 10 provides:

In determining whether or not a person discriminates, the person's motive is irrelevant.

24 Section 104 of the EO Act defines victimisation, so far as relevant to this case, as follows:

(1) A person victimises another person if the person subjects or threatens to subject the other person to any detriment because the other person, or a person associated with the other person -

(g) has alleged that any person has contravened a provision of Part 4 or 6 or this Part, or Part 3, 5 or 6 of the old Act, unless the allegation is false and was not made in good faith ...

or because the person believes that the other person or the associate has done or intends to do any of those things.

(2) It is sufficient for subsection (1)(g) that the allegation states the act or omission that would constitute the contravention without actually stating that this Act, or a provision of this Act, has been contravened.

(3) In determining whether a person victimises another person it is irrelevant -

(a) whether or not a factor in subsection (1) is the only or dominant reason for the treatment or threatened treatment provided that it is a substantial reason;

(b) whether the person acts alone or in association with any other person.

25 There was no dispute that the allegation could not qualify under any of the prerequisites required under sub-paragraphs (a)-(f) or (h) of s 104(1). Accordingly, in the context of the victimisation allegation, the Applicant bears the burden of proving that:

1. The Applicant engaged in conduct set out in sub-paragraph (g) of s 104(1);
2. The Respondent has subjected, or threatened to subject, him to a 'detriment';

1. The Respondent did this 'because' the Applicant alleged that the Respondent has contravened a provision of Part 4 or because the Applicant believes that the Respondent has done or intends to contravene any such provision; and

1. The Applicant's conduct was a substantial reason for the treatment.

26 The Applicant also relies upon alleged employment entitlements which he says arise from the following:

1. VicPol Enterprise Bargaining Agreement 2015 (VicPol EBA 2015);
2. VicPol Manual Policy Rules (VPMP) (Performance and Professional Management);

1. VicPol Manual Guidelines (VPMG) (Performance Development and Assessment System);

1. VP Act; and
2. Section 15 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter).

Employment and Employee Entitlements[4]

27 The terms and conditions of the Applicant's employment are contained in the VicPol EBA which, at the time of the alleged discrimination, were contained in the VicPol EBA 2015.[5] This EBA has since been replaced by the VicPol Enterprise Agreement 2019, which was approved by the Fair Work Commission on 20 March 2020.

28 The Applicant relies upon the EBA as binding on the Chief Commissioner of VicPol who is, for the purpose of the Fair Work Act 2009, the employer of police officers appointed under Part 3, Division 5 (excluding Commanders) of the VP Act.

29 The Applicant also recognises that, being a sworn member of VicPol, he is also bound by the VP Act.

30 The Applicant refers to and relies upon the following statements appearing in the VicPol EBA 2015:[6]

Victoria Police and the Police Federation Australia are committed to a healthy and productive workplace. This commitment includes:

1. Creating a diverse workforce and an environment that recognises values and utilises the contributions of people representing that diversity. Diversity in this context includes gender, age, language, ethnicity, cultural background, sexual orientation, religious belief, carer responsibilities and disabilities;
2. Providing a safe, flexible and respectful workplace which is free of unlawful discrimination, sexual harassment, racial and religious vilification and victimisation;

1. Reducing the frequency and impact of both physical and mental workplace injuries;

1. Providing a workplace that is free of bullying, through the development and implementation of policies established for the prevention and elimination of bullying; and
2. Recognising the right of employees to freedom of association, the right to be represented and the right to be protected against unfair treatment and discrimination.

Accordingly, in fulfilling their obligations under the Agreement, Victoria Police and the PFA will make every endeavour to ensure the Agreement provisions and their operation protects and promotes these commitments.

31 The Applicant also refers to and relies upon EBA 2015 clause 161.1, under the heading Occupational Health and Safety:[7]

The employer acknowledges and supports the rights of employees to work in an environment, which is, so far as is reasonably practicable, safe and without risks to health consistent with the Occupational Health and Safety Act 2004. The parties are committed to consultation and resolution of Occupational Health and Safety (OH&S) issues.

32 In its Amended Particulars of Defence, the Respondent concedes the above provisions of the EBA 2015 but denies that they create binding obligations or employee entitlements, for the purpose of the EO Act.

33 The VicPol website contains the following description:

Victoria Police policies and procedures are published in the Victoria Police Manual (VPM). The VPM sets the behavioural, operational and administrative standards for the organisation and is divided in to Policy Rules, which provide mandatory accountabilities, and supporting Procedures and Guidelines.

34 The VPMP, Professional and Ethical Standards states:

The Professional and Ethical Standards provide the minimum standards that all employees must apply. Non-compliance with or a departure from the Professional Standards and Conduct may subject an employee to management or disciplinary action.

A conflict of interest arises if your personal interests influence, or appear to influence, the impartial performance of your duties. Conflicts of interest can damage the confidence and trust members of the public have in Victoria Police and its employees, whether they are actual, potential or perceived conflicts. Having a conflict of interest is not unethical in and of itself. However, it can become an issue if the situation is not appropriately managed.

35 The VPMP (Performance and Professional Management) provides, in part:[8]

• 1.1 Application
  • ... the following employees must participate in performance assessment via the [Professional Development and Assessment] system, including permanent, fixed term, part time and full-time employees:
    • • Police members from Probationary Constable to Chief Superintendent rank

• Performance management decisions must be made in accordance with this policy and in accordance with the principles of natural justice and procedural fairness.
• Work Unit Managers have responsibility to ensure:

• • a performance assessment is submitted annually for every employee
• • an assessment is completed regardless of whether the employee is eligible for a salary progression payment, unless the assessment is deferred in accordance with VPMG Professional Development and Assessment system ...

• Police members ... must complete their PDA prior to the assessment due date. The due date will be one month prior to the anniversary of the date of their appointment or promotion for police members below the rank of Superintendent ... Progression to the next salary progression point will only be granted upon a satisfactory performance rating, and for Senior Constables progression points 13-16 will be based on the criteria set out in sub-clause 63.9 Victoria Police Force Enterprise Agreement 2011.
• VPS employees should complete their PDA prior to the assessment due date, being the 30th of June each year. PDAs will not be considered to be overdue until on or after 1st of August of the relevant year:

• The assessment process must be conducted in accordance with VPMG Professional Development and Assessment system.

All employees have a right of grievance and review in regard to PDA entries, the denial of incremental progression and the management of underperformance process or outcome.

• Employees may submit a formal grievance if attempts to resolve the issue at the local level have been unsuccessful - refer to VPM Review of actions (grievance).
• Contact Workplace Standards, Human Resource Department for guidance regarding the grievance process.

• Police members ... may submit a formal grievance if attempts to resolve the issue at the local level have been unsuccessful. For further information refer to VPM Review of actions (grievance)
• If the police member ... remains aggrieved by the decision, he or she has a right of review to the Police Registration and Services Board (PRSB) pursuant to clause 12.1, Victoria Police Force Enterprise Agreement 2011. The application for review must be lodged with PRSB within twenty eight days of the decision being communicated to the police member ...
• VPS employees may submit a formal grievance if attempts to resolve the issue at the local level have been unsuccessful - refer to VPM Review of actions (grievance). If the matter is not settled the VPS employee may refer the dispute to Fair Work Commission to have the dispute dealt with by conciliation.

36 The Applicant also relies upon the VPMG (Performance Development and Assessment System), which in part states:[9]

• After all areas of the PDA has been completed, the assessment is to be signed off electronically by the employee and the assessor. By electronically signing the assessment the person making the signature is acknowledging the content of the assessment. If the employee has been rated as being level in any Capability and/or is being rated as unsuitable for movement to the next progression point, the review officer must also sign-off the folder.
• If the employee is unable or refuses to electronically sign off, the issue should, in the first instance, be resolved at the local level. Review officers have the authority to amend any part of the assessment provided the amendment is supported by relevant validated evidence. Amendments to the assessment with respect to evidence or feedback should be made in the form of 'clearing comments'. If the matter cannot be resolved locally, the employee should be informed of the grievance process and the manager is to make a notation in the 'Performance Discussion' field. The manager should also contact the Performance and Development Unit to arrange closure of the assessment.
• If the assessment is deferred (police ... only) electronic sign off is not required at that time and the assessment will remain open for the deferred period, see below.

• Police ... will be assessed annually to determine their suitability for progression. Where a police member ... is assessed as suitable against the capabilities contained in subclause 63.8 and subclause 68.9 Victoria Police Force Enterprise Agreement 2011 where relevant, no evidence will be required and the employee will progress to the next progression point.
• If the member has completed their PDA at the assessment due date, being 30 days prior to the actual progression date, and no evidence of unsuitability is documented within the member's PDA, the member will progress on the actual progression date without further review - as per clause 63.12 Victoria Police Force Enterprise Agreement 2011.

37 The Applicant also relies upon certain provisions of the VP Act:

conduct, in relation to a police officer ... means -

(a) an act or decision or the failure or refusal by the officer to act or make a decision in the exercise, performance or discharge, or purported exercise, performance or discharge, whether within or outside Victoria, of a power, function or duty which the officer has as, or by virtue of being, a police officer ...; or

(b) conduct which is likely to bring Victoria Police into disrepute or diminish public confidence in it; or

(c) disgraceful or improper conduct (whether in the officer's official capacity or otherwise);

misconduct, in relation to a police officer ... means -

(b) conduct which is likely to bring Victoria Police into disrepute or diminish public confidence in it; or

(c) disgraceful or improper conduct (whether in the officer's official capacity or otherwise).

(1) A complaint about the conduct of a police officer ... may be made -

Complaints made to the IBAC are investigated under Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011.

(2) A complaint about the conduct of a police officer ... -

(a) may not be made to the IBAC by a police officer ... except as set out in subsection (3); and

(3) A police officer ... must make a complaint to a police officer ... of a more senior rank to that officer, or to the IBAC, about the conduct of another police officer ... if he or she has reason to believe that the other officer is guilty of misconduct.

(6) A person may make a complaint to the IBAC even if the complaint has already been made to a police officer or ...

38 Finally, the Applicant also relies upon s 15 of the Victorian Charter which, subject to reasonable limits under s 7(2), provides that:

(1) Every person has the right to hold an opinion without interference.

(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether -

39 In my view, the Charter does not assist the Applicant regarding the criteria which must otherwise be proven for the purpose of the claims under the EO Act. I will otherwise address the above provisions below.

40 The following abbreviations will be used throughout these Reasons:

1. Victoria Police (VicPol);
2. Senior Constable (SC);

1. Senior Sergeant (SS);
2. Acting Sergeant (A/S);
3. Inspector (Insp);
4. Superintendent (S/I);
5. Officer in Charge (OIC);
6. Police Station (PS);
7. Workplace Relations Division (WRD);
8. Record of Complaints, Serious Incidents Database (ROCSID);

1. Professional Development and Assessment (PDA);

1. Enterprise Bargaining Agreement (EBA);
2. Chadstone Shopping Centre (CSC);
3. Professional Standards Command (PSC);
4. Independent Broad-based Anti-corruption Commission (IBAC);
5. Ethics and Professional Standards Officer (EPSO);
6. Victoria Police Manual Guidelines (VPMG); and
7. Police Conduct Unit (PCU).

41 The Applicant relied upon his witness statement;[10] extensive attachments to his POC;[11] additional documents;[12] and oral evidence.

42 The Respondent relied upon the following witnesses who provided written statements and gave oral evidence:

1. Insp Jacqueline Dixon;[13] and
2. Ms Belinda McPherson.[14]

43 The Applicant has been employed by VicPol since 7 July 2008 and currently holds the rank of SC. At the time of the Hearing, he had been A/S since March 2020 and had also previously served a period as an A/S from late 2015 for about 18 months.

44 In his Application to the Tribunal, the Applicant summarised his claims as follows:

In April 2016 I made a bullying complaint to Victoria Police after I was bullied and discriminated against in relation to a Professional Standards Command File. As a result of making that complaint, Victoria Police did not action my bullying complaint until 2019. As a result of making the complaint under my employment rights, I was victimised, in particular where I received a direction notice on the 18th October 2018 by my superior S/SGT DIXON. I was threatened of facing discipline charges under the Victoria Police Act unless I signed a PDA assessment that I did not wish to sign that outlined the handling of my complaints of bullying. This was in contravention to policy and procedures. I also have other documents which show 22 (approx) other police members who also had unsigned assessments with none receiving the same treatment I received. I have also been threatened verbally on multiple occasions with charges unless I signed documents. I have many dates and occurrences of the behaviour that is difficult to [sum] up in this application box. I have been pressured and put under duress to sign documents that I am entitled to not sign. The most recent events occurred on the 15th October 2019 and 24th December 2019. I wish to lodge an application under the Equal Opportunity Act in relation to employment discrimination and victimisation. The conduct has greatly affected my mental health.

45 The Applicant's POC, attached documents and oral evidence provided significant clarification for the Tribunal in the way in which the Applicant sought to place his claims within the EO Act. Accordingly, it is necessary at the outset to distinguish between:

1. First, incidents in 2012, which the Applicant relies upon only for context, to explain why he says that SS Mark Denton was biased against him and consequently had a conflict of interest when subsequently appointed to investigate an incident involving the Applicant.
2. Secondly, the Applicant's claim of discrimination in employment activity, constituted by actions and failures to act, alleged initially against SS Denton and then other senior officers, over an extended period (generally described by the Applicant as 'bullying'). It is these actions/inactions which the Applicant alleges deprived him of his employee entitlements: namely, to be advised of the entire case against him regarding an alleged duty failure; to be given the opportunity to be heard, represented and challenge the substantiated duty failure; and to have certain records corrected in his PDAs and ROCSID.

1. Thirdly, the Applicant's claim of victimisation, constituted by threats of disciplinary action and selective unfavourable treatment in employment. The Applicant alleges he was victimised because he had alleged the above discriminatory treatment.

46 During the Hearing, it also became apparent that the Applicant was alleging victimisation in a second way; namely, the Applicant alleged that when his first complaint to IBAC (a protected disclosure) was revealed to A/Insp Green, he was then threatened with disciplinary action if he did not sign off on his outstanding PDAs.[15]

47 In addition to his oral evidence and written statements, the Applicant relies upon extensive correspondence between himself and various parts of the Respondent's infrastructure, to which he was directed from time to time. I will deal with such evidence in three parts:

1. First, there is extensive correspondence relating to the Applicant's pursuit of employee entitlements, where the responses or lack thereof are more indicative of bureaucratic delay, inefficiency, and misinformation, rather than conscious or deliberate discriminatory conduct. I will refer to this evidence in summary form as it shows the significant difficulties experienced by the Applicant in getting any meaningful responses to his enquiries and concerns over a protracted period of time;
2. Secondly, there is evidence of correspondence and meetings which demonstrate a direct denial of, or refusal to acknowledge, the Applicant's employee entitlements by senior police officers. I refer to some of this evidence in more detail below and I find that this conduct, on behalf of the Respondent, constitutes direct discrimination of the Applicant because of his attribute of employment activity; and

1. Thirdly, I will deal with the evidence relating specifically to the Applicant's allegation of victimisation, which arises in the context of the Applicant's PDAs and his refusal to 'sign off' these documents.

48 Finally, it is appropriate to clarify the way in which the Applicant has used the term 'bullying'. He refers to two occasions when he made 'formal' bullying complaints: by letter dated 26 April 2016 and by letter dated 17 August 2018. I am satisfied that the Applicant's use of the term 'bullying', in these and other correspondence, falls within the definition of 'employment activity'. It is apparent from an examination of this correspondence that the Applicant is consistently enquiring and raising concerns about and seeking to be afforded his employee entitlements, as described above.

49 The Applicant relies upon the incidents described below only for the purpose of indicating that SS Denton had a demonstrable conflict of interest in subsequently investigating a complaint concerning the Applicant. These incidents do not form part of his Application before the Tribunal.

50 In March 2012, the Applicant was a Probationary Constable at Malvern PS, where SS Denton was the officer in charge.

51 On 12 March 2012, the Applicant was advised by A/S Craig Paige, his correspondence Sgt at the time, that his correspondence was on track and that he would be a confirmed Constable at the end of that month. This was also reflected in his PDA.

52 On 19 March 2012, SS Denton put an entry in the Applicant's PDA stating, to the effect, that his correspondence and effort was not up to standard and that he would not be confirmed, when next due on 1 April 2012. This was the first time that the Applicant had heard of any issues.

53 The Applicant enlisted the assistance of the Police Association, the matter was referred to S/I David Clayton of the VicPol Academy and consequently, SS Denton's decision was overruled. The Applicant was confirmed as originally scheduled on 1 April 2012.

54 The Applicant gave evidence that SS Denton then behaved as follows:

1. A few days after his confirmation, the Applicant was called into SS Denton's office and, with nobody else present, SS Denton pointed to the Applicant's First Constable epaulettes and said 'Those epaulettes are a bit fresh shame you don't fucking deserve them'; and
2. Other Sergeants told the Applicant that SS Denton had instructed them to make unwarranted PDA entries against the Applicant, which other Constables were not getting.

55 Shortly after, SS Denton was moved to the St Kilda PS, whilst the Applicant remained at the Malvern PS.

56 When the Applicant raised the concerns which are now the subject of the discrimination claim, much of the Respondent's correspondence focused upon the Applicant's complaint of conflict of interest. The Applicant claims that the Respondent failed or refused to address his substantive request and concerns regarding the Respondent's alleged failure to accord the Applicant his employee entitlements.

57 The incident at the Chadstone Shopping Centre (CSC) is set out in detail below as it comprises the entire knowledge of the Applicant in what subsequently formed the basis of a duty failure finding against him.

58 Late afternoon on 27 February 2015, the Applicant and a colleague, SC Brad Phillips, were working in the Malvern Police divisional van and conducted a routine foot patrol at CSC. After being called away to respond to an emergency call, they returned to the CSC and conducted a further foot patrol. They checked in with the centre security guard, Mr Ceser Tapia, who was also on patrol within the CSC. Two events then occurred:

1. Mr Tapia advised that he was looking for a missing 3-year-old boy along with other CSC security guards. Police had not been notified or called, however, as the officers were present, they assisted in attempting to locate the child. After a short period of time, they were advised the child had been located and police were not required. Before departing, both officers continued to speak to Mr Tapia, who was well known to them professionally; and
2. Mr Tapia informed them that CSC Security had received a call from the Supre retail store that a male was acting suspiciously near the entrance to the store. The call was received via the CSC Security's internal communication. Police were not called or notified by the Supre store. Mr Tapia advised them that police were not required, however, as both officers were already present, they accompanied Mr Tapia to the Supre store.

59 On arrival at the Supre store, the manager asked why police were in attendance as they had not been called. When questioned directly by SC Phillips, whether the male had exposed himself or was sexually inappropriate, all staff present indicated that this was not the case. Both officers were then called away to a priority 1 gas leak. At the time, neither the Applicant nor SC Phillips made notes of their attendance at the Supre store or having questioned Supre staff.

60 Neither the Applicant nor SC Phillips made any notes of their attendance at the Supre store by reason that, in the circumstances as described, they understood that:

1. No investigation was required as there was no incident reported;
2. All witnesses on the day stated that there was no sexually inappropriate behaviour by the male who had been reported as acting suspiciously; and

1. No offences were disclosed or reported to the Applicant or SC Phillips or to police.

IBAC Complaint Generated by Chadstone Incident[17]

61 On 27 February 2015, a Supre staff member from the CSC (the CSC complainant) observed a male masturbating when security had been called. She subsequently observed the police in the Supre store but did not come forward to say she had witnessed anything.

62 In May 2015, approximately three months later, the CSC complainant contacted police to access a record number as she wanted to lodge a WorkCover claim. When told there was no record of the incident, she contacted PSC. A female PSC staff member was rude to her and she subsequently lodged a complaint with IBAC about the discourteous conduct of the PSC officer and a complaint that the matter was not properly investigated.

63 On 7 May 2015, IBAC referred both complaints filed by the CSC complainant to the Chief Commissioner of VicPol for investigation.

64 On 6 July 2015, the PSC generated a complaint file and, on 23 July 2015, the file was assigned to SS Denton for investigation and recommendation.

65 On 4 September 2015, SS Andrew Gardner (then OIC Malvern PS) informed the Applicant that a complaint had been made against him and that the investigator was SS Denton. SS Gardner also advised the Applicant to send an email (to SS Denton) detailing the circumstances of his involvement, which he did the same day. The Applicant received no reply to his email.

66 On 16 September 2015, the Applicant was copied into an email addressed to SC Phillips, who had already advised SS Denton (regarding the CSC incident) that there were no notes, as no offences had been disclosed.

67 The Applicant gave evidence that the advice which he and his partner had provided to SS Denton was to the following effect:

1. To their knowledge, no witness had reported any inappropriate conduct whilst they were in attendance at the Supre store;
2. Staff interviewed by SC Phillips said that they did not observe any such conduct;

1. The police had not been called to the Supre store;

1. The Applicant and his partner were conducting a walk through the CSC and were speaking to the CSC security guard, who was known to them;
2. The CSC security guard was called to attend the Supre store and the Applicant and his partner accompanied him, without being invited, just because they were present;
3. At no stage did the CSC complainant speak to police on 27 February 2015; and
4. No one had made any report to police about any incident or suspicious behaviour either on that day or at any time prior to the CSC complainant contacting police months later.

68 Neither the Applicant nor his partner were interviewed by SS Denton or anyone else about the matter.

69 The Applicant understands that, in relation to the Supre incident, apart from the CSC complainant, no other party was spoken to, including: the store manager; other staff members present; and the CSC security guard, who was present with the Applicant and SC Phillips and could have corroborated their account.

70 On 5 October 2015, SS Denton submitted a file report with a finding of substantiated duty failure and recommended workplace guidance.

71 On 6 October 2015, the finding and recommendation were endorsed by Insp Beer, Local Area Commander.

72 On 8 October 2015, the finding and recommendation were endorsed by S/I Lardner, Divisional Commander.

73 SS Denton's investigation of a failure to investigate a reported offence resulted in a finding of the SDFD, comprising a failure to investigate a wilful and obscene exposure, with an entry recorded on the ROCSID.

74 The entry on the ROCSID, under Allegation Details, includes the following particulars:[18]

Subject Allegation of Duty Failure (Fail to Investigate a Reported Offence) at Chadstone on 27/02/2015

75 On 15 January 2016, SS Gardner advised the Applicant that the complaint file had been substantiated. The Applicant requested, but was denied access, to see the investigation file.

76 On 20 January 2016, the Applicant asked the Police Association for assistance but was asked to provide documentation. At this stage, he had not received any documentation or formal notification of any decision.

77 On 1 February 2016, the substantiated outcome was first recorded on the Applicant's PDA report by SS Gardner, following the meeting with the Applicant on 15 January 2016.[19]

78 The Applicant confirmed under cross-examination that when he was first advised by Sgt Gardner, on 16 January 2016, that the CSC complaint had been substantiated and he subsequently observed the PDA entry made on 1 February 2016, he understood from his discussions with Sgt Gardner that the finding related only to a failure to take notes, which he accepted, although the PDA entry was otherwise not consistent with the account which he and SC Phillips had given. I note that the Respondent did not call any evidence to the contrary.

79 On 8 February 2016, on the advice of the Police Association, the Applicant made a freedom of information request to obtain documentation to assist with a review. On 18 March 2016, this request was denied by VicPol, by reference to the IBAC legislation.

80 VicPol's refusal to release documentation was subsequently challenged by the Applicant before the Tribunal.[20] The question before the Tribunal was whether the documents come within the Freedom of Information Act 1982 (FOI Act) or were outside the scope of the FOI Act because of the operation of s 194 of the Independent Broad-based Anti-corruption Commission Act 2011 (the IBAC Act).

81 In that instance, the Tribunal found that the investigation fell under the IBAC Act, the FOI Act did not apply to the documents in dispute and accordingly the Tribunal did not have jurisdiction under the FOI Act.[21]

82 The above decision was subsequently brought into question by the decision in Marke v Victoria Police FOI Division.[22]

83 The Applicant subsequently made two complaints to IBAC which were both referred to the Chief Commissioner of VicPol for investigation. Ultimately, IBAC accepted the recommendations of VicPol, following their internal investigation, but it is quite clear that in each case, there was no investigation performed by IBAC under the IBAC Act.

84 Marke's case is relevant to the circumstances of the IBAC referrals in this case and I will be making further reference below.

85 I acknowledge that the Applicant sought to rely upon his IBAC complaints as part of his Application to the Tribunal. However, I will be making only brief further reference to them for the following reasons:

1. The complaints are designated protected disclosures by IBAC, which limits the extent to which the Tribunal may refer to correspondence; and
2. I have concluded that these complaints are not essential to prove the Applicant's claims.

86 By March 2016, the Applicant had still not been given any formal notification of the SDFD and had not been given any information about the basis or nature of such SDFD. This circumstance motivated his first complaint to IBAC.

87 In the meantime, he was advised to seek access to his personal file. However, on 29 March 2016, he was told by HR Payroll that there were no complaints or reference to the CSC incident on his file.

88 On 11 April 2016, the Applicant contacted PSC, detailing his concerns about the way this matter had been handled, the poor investigation conducted and the failure to be notified in writing as required under the VPMG.

89 The Applicant was advised to direct issues to local management;[24] and was then told that formal notification of the finding was required, which he had still not received.[25]

90 The Applicant decided to make a formal bullying complaint in relation to SS Denton.[26] By email dated 20 April 2016, to 'Workplace Admin Standards-CSG-MGR', the Applicant stated, in part:

I wish to make a formal complaint in regards to bullying behaviour conducted by Senior Sergeant Mark DENTON of the St Kilda Police Station.

Approximately 4 years ago in early 2012 DENTON was the OIC of the Malvern Police Station where I was a PCET [Probationary Constable Extended Training]. I am currently an Acting Sergeant still at the Malvern Police Station.

Approximately 2 weeks prior to confirmation, I was unfairly targeted by DENTON trying to delay my confirmation, even with a PDA entry a week prior stating I was progressing well and would be confirmed.

In September 2015, I was notified of a complaint file made against myself and Senior Constable Brad PHILLIPS ... The file was originally made to IBAC who referred it to PSC and was ultimately given to 'Independent' S/SGT DENTON to investigate.

DENTON should never have investigated this file due to the conflict of interest and of no surprise to myself marked the file substantiated.

DENTON as required under complaint investigation should have addressed this issue in the VP1426 and removed himself from this investigation.

DENTON also failed under 13.3 of the VPMG to officially notify either myself or S/C PHILLIPS in writing of his decision even though it has been officially put onto both our PDA files.

The only negative PDA entries I have received in 6 years with VICPOL are all directly related to him.

I have contacted PSC in relation to the complaint and find the response of 'speak with local management' unsatisfactory.

The investigation conducted was poor. We have never been asked for statements, other police witnesses haven't been spoken [to] nor other key independent witnesses.

Management have been poor in trying to gain access to documents to assist in appeals with the association and IBAC, and refused them under FOI.

This is not only starting to affect my work performance but also my personal life. It is not only time consuming but stressful.

At a time when I have been getting upgrading and seeking professional development DENTON'S bullying behaviour has clearly affected this.

91 The Applicant asserts that this compliant remained active within VicPol until 24 December 2019, for which he relies upon an email from Ms Bridgette Santucci dated 8 May 2019, which states:[27]

I also refer to your bullying complaint lodged in April 2016. Please be advised that WRD is in the process of assessing this for you.

92 The Applicant (and SC Phillips) first became aware of the SDFD and ROCSID entry in May 2016, by coincidence, when the Applicant was before a panel for promotion and was asked about the ROCSID entry.

93 On 23 May 2016, the Applicant received an undated notification letter from Insp Narelle Beer, marked confidential, which was in his incoming correspondence file, or email box, at the Malvern PS. This was the first official notification of the SDFD, confirmed on 6 October 2015 (nearly eight months earlier) and over four months after SS Gardner advised the Applicant that the complaint file had been substantiated.

94 In part, Insp Beer's letter advised:[28]

The allegation is that you did not speak to the female [CSC complainant] who observed the behaviour and that the matter was not recorded or investigated.

The investigation can conclude that no notes were taken of the incident alleged by [the CSC complainant]. The fact that no notes were taken or no entry on the EPDR conflicts with the verbal account provided by the complainant, her work colleague and the security incident register.

95 On the same day, the Applicant sent an email to Insp Beer querying issues with the letter but did not receive a reply.

96 During May to July 2016, the Applicant continued to make enquiries, as directed, to various parts of the Respondent, but either received no reply or was advised to refer his complaint elsewhere.[29]

97 At this point, the Applicant and SC Phillip approached Sgt Mark Maloney for assistance and advice. Sgt Maloney asked them to compile a complex report with documents. Sgt Maloney then conducted an independent review and prepared a report dated 6 August 2016, addressed to Insp Doug Cowlishaw, EPSO Southern Metro Region. In the report, Sgt Maloney details why he formed an opinion which goes against both SS Denton and Insp Beer. In particular, Sgt Maloney identifies a number of factual errors in Insp Beer's notification and the ROCSID entries. Sgt Maloney notes that no reports had been included on LEAP (Law Enforcement Assistance Program) regarding any complaint or reported offences. In part, he concludes in his report:[30]

I have spoken with both members regarding the 'issue' of not taking notes and in hindsight they can see best practice would have been taking notes which only would have had the names of staff and that no offence was disclosed. However, the sanctions that have been imposed far outweigh that of best practice regarding taking notes when the members were actually 'attending' in good faith and no offence was disclosed.

It is my opinion without having reviewed the entire Complaint File which has not been provided, that the sanctions imposed are excessive and damaging to the reputation and career prospects for both members.

98 The Applicant did not receive any response to the report filed by Sgt Maloney.

99 The Applicant then communicated his concerns to S/I Graham Kent[31] who advised that the matter had been referred to S/I Phillip Green and S/I Tony de Ridder at PSC for further review.[32]

100 During August and September 2016, there was further internal correspondence between the Applicant and the Respondent and the Respondent and IBAC which probably constitute protected disclosures and therefore will not be described any further.[33] However, no further information was provided to the Applicant, and he was still denied a hearing.

101 On 10 October 2016, the Applicant emailed S/I de Ridder raising a number of questions; and again, expressed concern that neither he nor SC Phillips had ever been afforded procedural fairness, in particular they had not been offered a right of reply or the opportunity to make a sworn statement.[34]

102 On 11 October 2016, Sgt Radlow responded to the Applicant as follows:[35]

[S/I] de Ridder has provided a written response to your complaint lodged with IBAC. He and PSC will not acknowledge any further correspondence in relation to this matter.

103 On 15 December 2016, A/Assistant Commissioner Kent responded to complaints from the Applicant and SC Phillips via the TPA and noted:[36]

The investigation and outcome has been reviewed by senior managers regionally and at PSC as well as by IBAC with all concluding that the investigation and findings were sound and that previous dealings between the investigator and Senior Constable Gilmore did not influence the investigation. We also note that as a result of the substantiated finding there was no discipline action taken against either member but instead the identified deficiency was restored through development. The workplace guidance provided was appropriate in the circumstances. We are satisfied that the determination is correct and will remain recorded as substantiated. There will be no further investigation.

104 The correspondence appearing in the Applicant's WRD file was summarised in the witness statement of Ms Belinda McPherson.

105 It is appropriate at this point to deal with the evidence of Ms McPherson who is the Director Recruitment Deployment & Workplace Relations. She has been employed by the Respondent since 5 April 2020. In her witness statement she states:

8. I have not met the Applicant in this proceeding Senior Constable Ryan Gilmore and I have had no personal involvement in managing the issues he has raised with WRD as these predate my employment.

9. For the purposes of preparing this statement I have reviewed a copy of the WRD file relating to Senior Constable Gilmore. Except where otherwise stated, this statement is based on what I have read in Senior Constable Gilmore's WRD file.

106 The Applicant briefly cross-examined Ms McPherson only for the purpose of confirming that she had never met or spoken to him and had no dealings with or personal knowledge of the matters giving rise to his claims before the Tribunal.

107 Counsel for the Respondent submitted that the authenticity of the documents exhibited to Ms McPherson's statement have not been challenged and do provide a comprehensive account of the actions which the Respondent took and provide a response to the complaints made by the Applicant.

108 In my view, it is erroneous for Counsel to suggest that the authenticity of the documents should be accepted because they were not challenged. The Applicant correctly confirmed that Ms McPherson had nothing to do with the documents or the matters to which they related. She was in no position to attest to whether the contents of the documents were accurate or as to whether the file was complete. Ms McPherson merely confirmed that she compiled a list of the documents by referring to the Applicant's WRD file.

109 Except for Insp Dixon, no other author to any of the documents listed by Ms McPherson was called to give evidence.

110 To the extent relevant to the Applicant's case, I will refer to the correspondence listed by Ms McPherson below.

111 Ms McPherson described Workplace Harm in her Statement as follows:[37]

Victoria Police's OneLink is a workplace harm unit that triages and centrally case manages complaints relating to workplace harm (including by making referrals both internally and externally) and provides confidential, impartial, person-centred support to employees impacted by workplace harm.

112 On 21 June 2017, the Applicant emailed OL/WH seeking to escalate his review of the investigation conducted by SS Denton. In response, A/SS Andrew Gates, PCU, stated that the matter had been reviewed by the Applicant's EPSO and signed off by his divisional S/I, as well as being reviewed independently by IBAC, who found that all relevant evidence was obtained by SS Denton and that his findings were reasonable. A/SS Gates further stated that the PCU would not be taking further action in relation to the matter.[38]

113 The Applicant gave evidence to the effect that at no stage was he provided with any details of the nature of any review, or the nature or source of any evidence relied upon in the making of the SDFD. This evidence is confirmed by the contents of the correspondence described in or annexed to Ms McPherson's statement.

114 During 2018 and 2019, the Applicant engaged in continuing correspondence which sought to revive and pursue his bullying complaint.[39]

115 On 17 August 2018, the Applicant emailed OL/WH lodging a further bullying complaint against SS Denton, which raised the same issues regarding the CSC incident and SS Denton's SDFD.[40]

116 Thereafter, from August to late December 2018, the Applicant exchanged emails with multiple personnel within OL/WH,[41] in which he was variously advised that his requests were being dealt with or referred to other parts of the Respondent or were in the process of being reviewed. At the same time the Applicant was increasingly referring to what is now the subject of the victimisation claim before the Tribunal. Accordingly, in some correspondence, these issues now appear to overlap.

117 By 2019, the bullying complaint appears to have been handled by WRD with the following chain of correspondence.[42]

118 On 3 January 2019, Ms Santucci emailed the Applicant stating that the following outcomes were being proposed:[43]

1. Amendment to the wording in your 2015 - 2016 PDA to remove any reference to Wilful and Obscene Exposure report.

2. Amendment to the following two PDA's (2016 - 2017 and 2017 - 2018), to remove any reference to the matter.

3. A meeting with Inspector Jane Welsh, Discipline Advisory Unit, PSC to discuss general matters in relation to ROCSID process/entries.

119 The Applicant rejected each proposal, detailing his reasons.[44] Under cross-examination the Applicant said that the PDA entries:

1. Did not comply with the policy of what could be included in a PDA; and
2. The proposal did not address his bullying complaint, namely the employee entitlements which he had consistently been seeking and a correction to the ROCSID entry.

120 On 21 January 2019, the Applicant emailed several members of the WRD, stating that he would not be attending work indefinitely, commencing immediately, until the matter had been dealt with 'appropriately and realistically'. The email further states:[45]

I first raised a formal bullying complaint in 2016 to Workplace Harm ... and nothing has ever happened ... 3 years down the track and we continue to go around in circles, not to mention the whole matter is over a 4 year period. I'm a pretty resilient person however there is only so much one can take.

Its affecting everything personally and professionally and I can't think properly whilst this continues to get covered up.

I can feel my work performance and in particular my correspondence suffering.

This has all become too much whilst my bullying complaint gets passed around like a frisbee.

During your 'stakeholder' meeting, I've become aware all parties unanimously agreed that myself and SC PHILLIPS did nothing wrong in that the 'complainant' did not approach us and tell us what had allegedly occurred, so I'm at a loss as to why this is continuing.

After speaking with Bridget SANTUCCI today who now informs me the matter is with Michelle SPENCER of HR business unit (????) who wants to catch up and discuss my 'concerns'. Everyone knows whats happened. Theres enough documentation proving the same.

Not to mention the other components of receiving a written direction in relation to proposed discipline action have since further compounded the [enormous] stress I am under.

Everyone is now aware nothing happened and has an obligation to correct a wrong and address the bullying complaints that I've made to everyone over a significant period.

121 The following entry appears in the Applicant's complaint file:[46]

The investigation, findings and recommendations by Senior Sergeant Denton were reasonable and extremely fair to both [GILMORE] and PHILLIPS. The notes taken by the Chadstone Security Guard [name omitted] are compelling that an alleged reported offence was not investigated by the attending police members, [GILMORE] and PHILLIPS.

I am of the opinion that DENTON should have recommended an Admonishment in his recommendations however, his decision not to take discipline action and recommend development of the members is supported. If the members still refuse to take the recommended Workplace Guidance, I recommend that each receive an Admonishment from the Southern Metro Division 1 Superintendent.

122 I note that the contents of the above notation were not provided to the Applicant and appears to be the only document which makes any reference to 'notes taken by the Chadstone Security Guard'. No evidence was given by any representative of the Respondent in this regard.

123 During January to April 2019, there is continuing correspondence between the Applicant and Ms Michelle Spencer, HR Business Partner of the WRD,[47] wherein the Applicant expressed frustration at the delays and continued to be assured that his bullying complaint was 'still being investigated' and 'to be patient with me for a little while longer'.[48]

124 By email dated 29 March 2019, Ms Spencer provided a summary of her review of the Applicant's file to Ms Elizabeth Murphy in which she states in part:[49]

Ultimately, PHILLIPS & GILMORE are seeking to have PDA and ROCSID entries revised to accurately reflect the incident on 27/2/15, based on their accounts. Both acknowledge they did not take notes after speaking with the Supre staff due to being called away to the priority 1 matter, and that workplace guidance was an appropriate outcome when this came to light some three months after they attended the store. The PDAs have however been used in a punitive way, outside policy, specifically referring to the PSC investigation and the outcome of that investigation.

125 On 11 April 2019, the Applicant sought legal advice and Mr Mark Skermer of MST Lawyers sent a letter to the Chief Commissioner of VicPol on behalf of the Applicant, stating his position in relation to the incident at CSC, the SDFD, and the 2016 bullying complaint. The letter set out the request of the Applicant as follows:[50]

1. That [VicPol] review the file and expunge the finding of duty failure against my client on the ROCSID file;

2. That a copy of the amended ROCSID file be provided to my client;

3. That [VicPol] consider a sum of compensation to my client for anxiety and emotional turmoil my client has encountered during the course of the last four years; and

4. That my client advance to a confirmed Sergeant at the Malvern Police Station.

126 Following his solicitor's letter, the Applicant received a series of emails which cast doubt upon what role, if any, the WRD continued to perform in response to the Applicant's concerns and requests. Ms Spencer first advised as follows:[51]

I have previously provided you with support and advice in the matter you have reported to me. I have made inquiries on your behalf, and progressed the matter as far as I believe I can at this stage. I have today become aware that you have sought independent legal advice in regard to your complaint, and that you have brought it to the attention of the Office of the Chief Commissioner of Police as well as the Minister. I consider your matter now outside my remit and will have no further involvement in this matter.

127 In response, the Applicant asked whether his bullying complaint was still active,[52] and Ms Spencer replied as follows:[53]

You will recall late last year [2018] your OneLink complaint was reviewed by Workplace Relations Division. WRD found the information provided by you was not sufficient to substantiate allegations of bullying.

[The Applicant denies receiving any notification from WRD.]

I acknowledge your right to seek independent legal advice, however that is a personal matter for you. My involvement in your complaint has ended.

128 The Applicant then complained about Ms Spencer's handling of his bullying complaint asserting that such complaint had deliberately been unsubstantiated after receiving correspondence from his solicitor and that VicPol had deliberately tried to predate the closure of the bullying complaint prior to receipt of the solicitor's letter.[54]

129 The Applicant submits that the Respondent's response to his original bullying complaint effectively denied him his right to representation.

130 On 26 April 2019, Ms Begbie advised the Applicant that:[55]

1. His bullying complaint was being determined and actioned by WRD, and that he would receive advice from them in relation to the matter within the timeframe set out in the letter from MST Lawyers; and
2. The information provided by Ms Spencer, that the bullying complaint had been closed, was not correct.

131 On 6 May 2019, the Applicant emailed Ms Begbie, requesting an update to his bullying complaint:[56]

You continue to affect my health and safety in The workplace every day (and the previous 4 years) you drag this on and continue to play games with me.

... [I] feel I'm ... being bullied by your department due to deliberate inaction.

132 Ms Begbie responded on 7 May 2019 stating that the WRD was working through the matter and would be in touch. She also confirmed to the effect that Ms Spencer had given the information regarding the closure of the bullying complaint based on a misunderstanding.[57]

133 On 20 May 2019, Ms Carryl Fenner, Director, WRD, Human Resources Department, responded to the Applicant's solicitor's letter of 11 April 2019, stating that VicPol:[58]

1. Had reviewed the circumstances in relation to the Chadstone incident and the ROCSID entry, and determined that the ROCSID entry was appropriate;
2. Would not amend the ROCSID entry;

1. Was unable to agree to the request to advance the Applicant to Sergeant.

1. The EPSO/IBAC matter had been closed on 11 October 2016;
2. The Applicant's dissatisfaction with the ROCSID entry had been reviewed by IBAC, and it had been reconfirmed on 21 June 2017 that the matter was considered finalised;

1. The allegations in relation to SS Denton were considered finalised. S/I de Ridder had confirmed this on 29 September 2016 when he stated that he was satisfied that the matters the Applicant had raised did not identify any issues in relation to any actual conflict of interest during the investigation; and that VicPol did not intend to undertake a further investigation; and

1. Action had been taken to formally address the Applicant's complaint in relation to Ms Spencer, and accordingly that matter was considered closed.

135 Finally, Ms Fenner stated that the offers made to the Applicant on 3 January 2019, in relation to his PDAs, were still available to the Applicant.

136 On 17 June 2019, the Applicant,[59] in summary, raised the following concerns in response:

1. On 27 February 2015:
   1. At the CSC, he never met or spoke to the Supre complainant;
   2. There was never a triple zero call made to police;
   3. He was never made aware of any alleged wilful and obscene exposure; and
   4. He could not have failed to investigate or report an alleged offence of which he was never made aware;
2. There are no factual circumstances which support a substantiated duty failure;

1. There are acknowledged inconsistencies and discrepancies in the file investigation;

1. He always acknowledged that he never made notes; and he accepted workplace guidance in relation to this;
2. The Respondent breached protected disclosure in relation to his IBAC complaint;
3. His conflict of interest concerns regarding SS Denton have never been properly considered in terms of the VPM;
4. His bullying complaint encompassed his denial of procedural fairness and employee entitlements in relation to both the initial CSC investigation and his treatment in regard to the outstanding PDAs;
5. The official notification letter of substantiated duty failure (undated) was only received after he had complained to PSC;
6. The Respondent's PDA proposals did not address the ROCSID entry; and
7. The Respondent has continued to deny him a meeting to discuss the handling of his complaint file.

137 At this point, the Applicant says he failed to show for work as a result of mental stress. The Respondent appears to have acknowledged welfare concerns for the Applicant when A/Insp Jacqueline Dixon emailed Mr Rose, copying in the Applicant, stating that:[60]

The length of time that this has taken to resolve or progress is having an impact on Ryan.

138 A/Insp Dixon further advised that a newly formed welfare management plan had been developed to support the Applicant whereby she would seek an update from Mr Rose every two weeks, copying in the Applicant.

139 On 31 July 2019, Mr Rose emailed A/Insp Dixon, copying in the Applicant, providing the following update in response to A/Insp Dixon's request:[61]

• Workplace Relations Division (WRD) intend to meet with PSC to discuss concerns raised by both Ryan Gilmore and Brad Philips;
• WRD has provided a brief of information to PSC for pre-reading prior to our intended discussion;
• It [is] WRD's intention for the liaison with PSC to occur prior to meeting with both Ryan Gilmore and Brad Phillips.

140 On 4 August 2019, the Applicant emailed Ms Fenner:[62]

1. Querying why she did not 'sit us down with PSC and yourselves';
2. Seeking an update regarding the PSC meeting 'last week';

1. Querying why his bullying complaint, which did not relate to the PSC, kept getting put aside; and

1. Querying why he was apparently the only officer with outstanding PDAs to receive a discipline notice and be forced to sign off his PDA.

141 On 9 August 2019, Ms Fenner sent a letter to the Applicant which, in summary:[63]

1. Acknowledged his various emails to different people within WRD dealing with a number of matters, all relating back to his original bullying complaint of April 2016 as well as his proposed complaint regarding WRD;
2. Confirmed that any allegation of bullying is taken seriously;

1. WRD would be making an assessment of all his correspondence following which he will be contacted;

1. Noted that, in regard to his original complaint of April 2016:

Victoria Police has previously provided a written response to you, on more than one occasion.

1. Confirmed that, over the next three weeks, Mr Rose of WRD was intending to meet with PSC, following which he would schedule a meeting with the Applicant and SC Phillips;
2. Advised that a final assessment would then be undertaken and determination made on the next steps, and formal correspondence would then be sent to the Applicant;
3. Advised that no further updates would be provided in the meantime; and
4. Requested that the Applicant wait for the above steps.

142 There followed a series of emails in which the Applicant continues to seek a response to his outstanding concerns and requests and also refers to his victimisation claim, addressed further below.

143 On 2 September 2019, the Applicant emailed Ms Fenner and others (including Mr Taylor) requesting an acknowledgement of his victimisation claim; and an update following her previous letter as more than three weeks had passed without any contact or meetings arranged.[64]

144 In response, Mr Taylor, Portfolio Manager WRD, advised:[65]

the way you continue to communicate is inappropriate and I would ask that it does not continue.

As stipulated in the original correspondence sent to you, all of the actions were intended to occur during the course of the next three weeks and I now have an update for you. All of the information you provided has been allocated to a new Review Officer within PSC with a recommendation made from Workplace Relations that the new Review Officer makes contact with yourself and Brad Phillips during the course of their review.

This will ensure an independent and fair assessment of the information you provided and will adequately address the concerns you have raised. No further correspondence will be sent to you from WRD during this process and contact will only be made when we have an update to provide you.

145 The Applicant replied to Mr Taylor's email clarifying that he had been previously promised weekly updates, then fortnightly updates, then a timetable (outlined in Ms Fenner's email), none of which was complied with by WRD and still no response was received in relation to his victimisation complaint.[66]

146 On 7 October 2019, the Applicant emailed A/Insp Dixon, again seeking an update as he had heard nothing from WRD. A/SS John Hicks (in place of A/Insp Dixon) sent an email to Mr Rose requesting an update as '[n]o one has heard anything for a number of weeks.'[67]

147 On 14 October 2019, Mr Rose sent an email in response, copying in the Applicant, stating that a review had been undertaken by PSC and an update provided to WRD who will now review the information. Mr Ryan concluded with 'I anticipate the next action will be to schedule time with Ryan to discuss.'[68]

148 No time was ever scheduled for such discussion.

149 On 18 October 2019, in reference to Ms Fenner's letter dated 20 May 2019, the Applicant emailed Ms Fenner advising that he now had possession of his latest ROCSID report dated 15 October 2019 which now appeared to reflect inconsistencies (referring to his PDAs):[69]

On the 31/5/16 there was no management actions, yet on the latest copy apparently there now is, that was allegedly put on the 18th of January 2016.?

I direct your attention to the attached file where the dates and entries are yet again conflicting.

Ms FENNER writes Victoria Police remain that ROCSID won't be amended however Victoria Police are willing to remove any reference to wilful and obscene exposure (namely because it never happened).

This contradicts the narrative that sits on the ROCSID and has since the 18th January 2016 in the attached files.

As I have continually mentioned, WRD need to look into the definition of 'Substantiated' and the allegation of 'failed to investigate a REPORTED OFFENCE'.

150 It is not apparent whether Ms Fenner replied to the above email.

151 On 22 October 2019, the Applicant emailed OL/WH stating his further complaint of victimisation and bullying in relation to being threatened with an admonishment if he did not sign his PDAs (dealt with further below). The Applicant again confirmed that he has been participating in his PDAs and the VPMP does not state that he has to sign his PDAs.[70]

152 Over October/November 2019, the Applicant sent several emails to Mr Rose, some with additional questions regarding the signing of his PDAs, requesting an update.[71]

1. Mr Rose emailed the Applicant advising that:
   1. His previous manager, Mr Taylor, had left VicPol, and Ms Natasha Ilievski would be taking over;
   2. The Applicant's queries regarding the PDAs were outside the remit of WRD, and that WRD was endeavouring to find which area was most appropriate to deal with his concerns; and
   3. He would provide a further update by the end of next week.
2. The Applicant sent two emails, expressing his exasperation at the continued delays, where his file had now been handled by Ms Santucci, Ms Spencer, Mr Taylor, Mr Rose and now been taken over by Ms Ilievski. The promised meeting had still not been arranged; and he requested that the matter be referred to WorkSafe Victoria; and

1. Ms Ilievski emailed the Applicant stating that she would discuss the matter with Mr Rose and advised that while he was welcome to do so himself, she was unable to refer a matter to WorkSafe Victoria on his behalf.

1. Ms Ilievski emailed the Applicant stating that she was working on the background of the matter and would get back to him by the end of the week; and
2. The Applicant emailed Ms Ilievski, stating that his complaints and questions have been ignored for nearly five years and requested that he be stood down on full pay until the matter is resolved.

155 On 2 December 2019, Ms Ilievski emailed the Applicant to reschedule a planned meeting. The Applicant had changed his rosters specially for the meeting and expressed his frustration and stress at the continuing delay and again requested that he be stood down with pay.[74]

156 On 16 December 2019, Ms Ilievski emailed the Applicant advising that she was trying to clarify why the matter had been referred to WRD; was awaiting confirmation from OL/WH; and had contacted his local management team. She was also not clear about the victimisation complaint and requested the actual complaint.[75]

157 On 17 December 2019, the Applicant emailed Ms Ilievski setting out his concerns regarding the delays and stating that he was on leave from 23 December to 18 January 2020 and did not intend to return from that time unless the matter was resolved.[76]

158 On 24 December 2019, Ms Sue Baker, Acting Director, WRD sent a letter to the Applicant and after referring to correspondence with Ms Fenner, and the letter to the Applicant's solicitors dated 20 May 2019, replied as follows:[77]

1. In relation to the ROCSID entry, VicPol had confirmed that the entry was reviewed and determined as appropriate and would not be amended. Accordingly, VicPol considered that the matter was closed, and no further action would take place;
2. In relation to the IBAC matter, IBAC had stated on 11 October 2016 that they had decided not to review the matter and no further action would be taken. Accordingly, VicPol considered that the matter was closed, and no further action would take place;

1. In relation to the bullying complaint against SS Denton, S/I de Ridder had confirmed on 29 September 2016 that he was satisfied that the matters raised did not identify any issues in relation to any actual conflict of interest during the investigation. Accordingly, VicPol considered that the matter was closed, and no further action would take place; and

1. In relation to the complaint in relation to Ms Spencer, VicPol confirmed that WRD assessed the complaint and appropriate action had been taken to address the matter. Accordingly, VicPol considered that the matter was closed, and no further action would take place.

159 In relation to his PDAs, Ms Baker confirmed that the following offer remained available, namely:[78]

1. Making an amendment to the wording of the 2015/2016 PDA, to remove any reference to Wilful and Obscene Exposure;

2. Making an amendment to the two (2) PDAs (2016/2017 and 2017 /2018), to remove any reference to the incident; and

3. A meeting with a member from the Disciplinary Advisory Unit in order to explain the use of the ROCSID system, the difference between discipline charges, admonishment notices and workplace guidance/ PDA entries.

160 Finally, Ms Baker refers to the additional material provided to WRD which was provided to PSC. The review identified that the material was identical to the issues outlined previously. Accordingly, VicPol considered that the matter was closed, and no further action would take place.

161 Under cross-examination, the Applicant confirmed that the above letter was served on him on Christmas Eve by Acting S/I Jo Stafford and Insp Dixon. He subsequently emailed Ms Stafford, pointing out that the letter failed to address his complaints of bullying (that is, failure to accord him his employee entitlements) and victimisation. He did not receive a reply.

162 The Applicant confirmed that the PDA is a performance assessment tool used by VicPol which operates over a 12-month cycle, typically from February to February.

163 Entries could be made by the relevant police officer as well as their supervisor.

164 A PDA would generally, but not always, relate to the period over which it operated. Sometimes there are entries outside the 12-month period.

165 The PDA is linked to progression and can have a financial consequence to the receipt of the next financial increment.

166 The Applicant confirmed that the 'sign off' of a PDA occurs when the relevant police officer logs into the system and effectively enters an electronic signature by way of acceptance. This step is part of the trigger for the financial benefit which flows, in terms of entitlements such as pay increments. The Applicant did not receive a financial progression during the period he refused to sign off his PDAs.

167 The Applicant confirmed that he had signed off all previous PDAs including his PDA for the period 1 April 2014 to 28 February 2015.[79]

168 On 15 September 2018, the Applicant was advised he had to sign his PDA folders by Insp Jo Stafford and SS Dixon. The Applicant expressed verbally that he was not required to sign them, only participate in the process, which had been occurring.

169 The Applicant referred to an email dated 15 October 2018, from Ms Christina Sautia, Divisional Management Support, which lists 13 other police members who had outstanding PDAs. However, the Applicant believes that he was the only officer from this list to receive a written direction with disciplinary action threatened, unless he signed his PDAs.[80]

170 The Applicant also referred to an email exchange in which he had specifically asked SS Rob Allen of the Performance & Development Unit (PDU) whether an employee must sign off a PDA under the PDA Policy. In response, after quoting an extract from the Policy which addresses the circumstance where an employee is unable or refuses to electronically sign off (a PDA), SS Allen advised:[81]

There must be reasons behind a refusal - which has recourse via the grievance process. If that has not resolved, then a direction will be made to close the PDA. It can be done with or without sign off.

171 In the PDA for the period 1 March 2015 to 29 February 2016, the following notation appears, which was entered by SS Gardner:[82]

On 15/1/16, I met with Ryan to discuss the finding that on 27th of February, Ryan failed to take notes concerning a job that they came across while patrolling Chadstone Shopping Centre. The incident involved a Wilful and Obscene Exposure report and both Ryan and the other member he was working with, attended at the location and spoke to staff at Supre Store and security members. Their initial investigations indicated that no offence had occurred and that the male had been acting suspiciously, but they failed to adequately record the details and a witness later came forward alleging an offence and that the members had failed to attend to the matter adequately. In part, the incident occurred due to the fact that after looking for the suspect person, [the] members were tasked off to a gas leak and did not return to the store to gather details. A subsequent investigation found that the complaint was substantiated and that workplace guidance was required. We discussed the organisational requirement that all persons spoken to and all investigations undertaken should be recorded in notes and accurate records kept. As a result of our discussion:

• Ryan has demonstrated an understanding of the expectations that he is more methodical in recording details of those spoken to and accurate records are kept. No further development needs have been identified.

172 The Applicant confirmed that the incident to which the notation referred occurred on 27 February 2015, so any reference to it should have been recorded in the previous (year's) PDA. The Applicant asserts that the notation is wrong in terms of what is alleged to have happened on the day and there has never been an offer to correct this record. He agreed that there are no other adverse comments in this PDA or in the subsequent PDAs.

173 In the PDA for the period 1 March 2016 to 28 February 2017, the Applicant included the following notation:[83]

PDA remains outstanding from the 28th February 2017 due to a continued grievance related to PSC file C2-1/61/2015.

The issue in question relates to a disciplinary sanction that sits on my personal file (ROCSID) as a substantiated duty failure and classified as misconduct. There is clear evidence that;

The complainant never approached or spoke with Police

There is a previous conflict of interest with the investigator.

The investigation was not conducted in accordance with policy including the integrity management guide and Victoria Police Manual. There has been a denial of procedural fairness and natural justice

The PDA entry relating to my colleague on the day in question, has recently been changed to clarify the finding relates to note taking only and workplace guidance has now been replaced as a learning development.

The 'Substantiated' finding of duty failure, failure to investigate a reported offence is not stipulated in this entry. The ROCSID entry is defamatory and not a reflection of tangible evidence.

The repercussions and fallout from this flawed investigation have been significant not only career wise but personally.

I'm willing to move on from this and sign off this PDA once the issues in question are addressed by a relevant person and the correct ROCSID finding is amended.

The changed PDA entry of my colleague for these events is as follows;

On 18/1/16, I met with Brad to discuss the finding that on 27/02/15, Brad failed to take notes concerning a suspicious loiter they came across whilst patrolling Chadstone Shopping Centre. It involved a male who was standing outside the Supre store staring inside which made the staff uncomfortable and as a result the manager contacted security to have the male moved on. Brad and the other member he was working with became aware of this as they were with security at the time and offered security assistance as no call was made to police by the manager or any other person. Along with security, Brad and the other member attended the location and spoke to staff who advised the male had left only minutes before the police arrived. Police spoke with all known staff at the store and their investigation, which included patrolling the centre for the male and having CCTV reviewed indicating that no offence had occurred. Due to members leaving the store quickly to search for the male they failed to adequately record the details of the staff they spoke to. This occurred in part due to the fact that while looking for the male members were tasked off to a priority one event and were unable to return to the store to gather details. Several months later a Supre staff member came forward alleging she had witnessed an offence and that the members had failed to attend to the matter adequately. This staff member also stated that she observed police attend the store but never approached or advised either police member or security of the offence that she allegedly witnessed. A subsequent investigation found that a learning development was required. We discussed the organisational requirement that all persons spoken to and all investigations undertaken should be recorded in notes and accurate records kept. As a result of our discussion:

• Brad has acknowledged and demonstrated an understanding of the expectations that he is methodical in recording details of those spoken to and accurate records are kept. No further development needs have been identified.

This would clarify my grievance related to the finding of duty failure - failure to investigate a reported offence.

174 The next entry (apparently made by Insp Dixon) says in part:[84]

I met with Ryan and Sgt Shane GINTERS (current PDA assessor) to discuss trying to progress this PDA. I explained that as I was leaving I needed to discuss this and see if the situation had changed. I understood that there may be matters going on in the background that I was not fully aware of and with this in mind I wanted to know his position. I stated that I didn't need to know details but there were some things I needed to know. Was it the case that we could move toward resolving the PDA or with the other issues going on, would he prefer that the matter remained as outstanding? Ryan replied that he would prefer it to leave it as is. I did reiterate that by not resolving the matter, there may be some financial impact on him. I wasn't aware of which increment he was on but I felt that this may be stopping him from progressing onto the next level. He said that he understood this but that didn't change his decision. We discussed the possibility of archiving this PDA until the matter was resolved but on having the discussion it was probably not an option due to the circumstances. In any case he preferred for it to remain active on the system and visible. We discussed the fact that the next PDA was now due on the 28th and that Shane needed to finalise that one. I asked if he would be signing off on that or whether it would remain because my limited understanding was that it couldn't be finalised without this one. Ryan indicated that the current one would remain until resolution of the other matters.

175 The final entry in this PDA reads:[85]

24/07/2018 - Performance discussion held with S/C GILMORE, Sgt GINTERS and S/SGT DIXON as part of mid year station PDA discussions held with all members. Current PDA cycle (2018) discussion to be recorded in appropriate PDA.

Discussed unresolved issue of this 2016 PDA not being signed off. S/SGT DIXON new to role of OIC Malvern, and has had no previous involvement in this unresolved issue. This issue remains unresolved, and other issues surrounding this reason are actively being pursued by S/C GILMORE through the appropriate pathways. Unable to resolve this issue in the PDA discussion.

Consultation has later been made by S/SGT DIXON with PDU in relation to resolving incomplete PDA cycles.

The following information has been obtained, and is readily available in the VPM's. In the first instance of a disputed entry, the onus is on the member S/C GILMORE to utilise the internal review process for grievance as outlined in the VPM's. This process was not followed with accuracy in the first instance, and the grievance timeframes are now exhausted & lapsed.

S/C GILMORE has been shown the VPM's, for future instances whereby he would like to challenge a PDA entry.

VPM policy indicates that a member not signing off of a PDA is in breach of policy. S/C GILMORE was advised of this in PDA conversation and that it is a disciplinary offence. Despite this breach, a decision not to pursue disciplinary action has been exercised by S/SGT DIXON. Consideration given to member welfare and length of time since issue raised. Request made by S/SGT DIXON to sign off on PDA by PDU in the absence of member. I acknowledge the issues raised by the member, & accept that he is not satisfied with previous comments and entry made in 2016. I therefore request that the PDU sign off on this PDA and complete the cycle.

176 Under cross-examination, in relation to the above entries, the Applicant said:

1. In February 2016, he did not have access to the ROCSID. Subsequently, he discovered that the SDFD was a failure to investigate an offence, which he had always maintained had never been reported. Once he became aware of the true nature of the finding, he attempted to lodge a grievance. He made enquiries with the PDU and was told that a grievance must be made within 28 days of the event to which it relates. In this case, the relevant entry in his PDA was made in the following year and he had not been advised of the SDFD until many months after the decision was made. When he tried to lodge a grievance, he was told he was out of time, as it had not been lodged within 28 days, even though it was impossible to comply in the circumstances;
2. The entries which he placed into his PDAs fall within his obligation 'to participate in performance assessment via the PDA system' including those concerns that were not to the liking of his employees.[86]

1. The reference to 'VPM policy indicates that a member not signing off of a PDA is in breach of policy' is not correct. The Policy says that, by signing off, a member is accepting that everything is true and correct; and

1. The PDA can be completed by PDU with or without it being signed off by the member.

177 Shortly prior to the Applicant receiving the Directions letter referred to below, he made the following entries in his 2018/2019 PDA, which succinctly summarise his outstanding concerns:[87]

On the 12th September 2018, I met with the OIC of Malvern Police and the Stonnington LAC regarding potential disciplinary action relating to my outstanding PDA assessments.

I quote the PDA policy that Vicpol employees must abide by;

• Employees must participate in performance assessment via the PDA system, including permanent, fixed term, part time and full time employees:

The definition of 'participate' according to the Oxford Dictionary is 'Be involved; take part'

I believe it is quite evident I have been participating in the PDA process, however management are alleging this is not the case because I have not signed off on several increments for reasons I have previously discussed with them at length. I refer to my 2018 PDA entries which show I have been performing above standard, as is evident by the feedback provided by members of the public. I'm also within the top percentage amongst members at Malvern in terms of the number of briefs I have completed after subsequent effective investigations.

I would regard this as 'participation' despite not having 'signed off' on several folders. The PDA program is in my view, a two way street, not a tool to be used by the employer to manipulate complex circumstances. As the matter in question has affected me personally for close to 4 years, but it has not become a performance issue and the contentious issue is that it did not begin with one either.

Of somewhat particular significance the policy also states;

Performance management decisions must be made in accordance with this Policy and in accordance with the principles of natural justice and procedural fairness.

The issue in question relates to a disciplinary sanction that sits on my personal file (ROCSID) as a substantiated duty failure of failing to investigate a reported offence and this is classified as misconduct. There is clear evidence that;

• • The complainant never called police to report an issue (refer to CAD data).
• • The complainant never approached, spoke or made herself known to Police even after sighting them. I have never met or spoken with this person and her identity only became apparent after being disclosed to me by VicPol.
• • The complainant never provided a statement to the complaint investigator.
• • There is a previous conflict of interest with said investigator relating to a previous dispute whereby management action that the investigator had initiated was overruled by a third party of higher rank, as it was deemed not justified. A personal conflict arose due to the third party involvement which made it impossible for this investigator to remain objective in the circumstances.

This is not aligned with the principles of natural justice nor procedural fairness.

I quote a paragraph from a signed statement declared by Senior Sergeant Andrew GARDNER ...

'On the 5th November 2015, I was handed a professional standards command (PSC) file relating to the investigation. This was given to me by S/SGT DENTON with an explanation about the actions that needed to occur. I had a conversation with S/SGT DENTON where he explained that the investigation had revealed neither member had been aware of the complaint for the wilful and obscene as the complainant had not spoken to them.'

I apparently cannot lodge a grievance to the PDA as it relates to a PSC file. The PDA entry from 2015 is non-compliant with policy and guidelines relating to PDA entries.

The investigation was not conducted in accordance with policy including the integrity management guide and Victoria Police Manual.

The PDA entry relating to my colleague on the day in question, has been changed to clarify the finding relates to note taking only and that workplace guidance has now been replaced as a learning development.

The 'Substantiated' finding of duty failure, failure to investigate a reported offence, is not stipulated in this entry. The ROCSID entry is defamatory and not a reflection of tangible evidence.

The repercussions and fallout from this flawed investigation have been significant, not only career wise but personally. The methods adopted by select management forms part of the continued bullying, utilising internal Victoria Police processes which are being carried out deliberately, unjustly and not according to facts.

The deliberate and continued tactic to threaten me with discipline offences for taking a 'STAND' and attempting to protect my reputation and character is blatantly evident in the file. The select few utilising this method have a personal influence and motivation for wanting this matter to just disappear is just part of the bullying I have encountered for an extended period of time.

I'm willing to move on from this and sign off this PDA once the issues in question are addressed by a relevant person and the correct ROCSID finding is amended to a just finding that other members of Victoria Police would receive in accordance with the PSC classifications and findings stipulated in the integrity management guide.

I acknowledge on the 31st August 2017, Victoria Police first agreed to remove the wilful and obscene report from my PDA.

This non-existent offence was referenced on my PDA for 594 days, when it should not have been placed there in the first place.

This was an error of detriment to myself for that period of time in relation to the PDA. There is no doubt the reference of wilful and obscene exposure was driven as a result of information contained in the ROCSID file also to my detriment.

In relation to the subsequent PDAS, I placed my own entries explaining my belief of bullying and handling of the matter in its entirety.

I have a reasonably sound knowledge of general policy and processes in regards to PDA and ROCSID entries. I have declined a meeting to discuss 'general process'.

I've attempted on multiple occasions for a meeting not on general processes but rather on the matter relating to this particular complaint file as a whole, including Victoria Police being transparent on sitting down with the actual complaint file and discussing the major flaws and inconsistencies which has been declined by Victoria Police.

As outlined there are significant issues with this matter as a whole with indisputable evidence conflicting to the reasoning Victoria Police continue to provide.

There are significant issues and behaviours that I believe has been deliberate and there is significant evidence presented in this correspondence to present suspicions that do not align with Victoria Police Policy in accordance with the integrity management guide, discipline investigation guide or more broadly the Victoria Police Manual in relation to complaint investigations.

I also make note of not receiving the official notification letter, early in the onset in which I only received after making a complaint to Professional Standards Command, prior to exact knowledge of the finding and purely through suspicions that something was amiss.

The notification arrived undated and some 230 days after the complaint had been finalised and in context shows a pattern of behaviour into the matter that appears underhanded.

I'm prepared to resolve this matter as outlined in the requests from the correspondence dated 11th April 2019.

Workplace Relations are not being told the full story by Professional Standards Command who are heavily involved in the initial complaint and cannot remain impartial in the information being provided.

178 Insp Dixon was the Respondent's only witness who attested to her direct dealings with the Applicant.

179 Insp Dixon's evidence is relevant to the Applicant's allegation of victimisation. Accordingly, I have set out certain extracts from the oral evidence and witness statement, in some detail.

180 On 25 June 2018, Insp Dixon (then SS) commenced at the Malvern PS where the Applicant was one of the SCs reporting directly to Sgt Ginters.

181 Insp Dixon gave evidence that one of her first duties at the Malvern PS was to make sure that, as the new PDA assessor, all reports were reassigned to her and that the PDAs were up to date. For that purpose, she followed up Sgt Ginters regarding the Applicant's two outstanding PDAs. The Applicant indicated that he was not going to sign off because of an entry regarding a complaint that had been investigated previously. The Applicant disagreed with the findings of that complaint and the consequent notation on his PDA.

182 Insp Dixon had herself assigned as the direct PDA assessor for the Applicant and then explored options as to how best to resolve the outstanding PDAs.

183 In relation to the PDA process, Insp Dixon explained that it was imperative for her to have PDAs signed off because:

1. The PDA is an important management tool, so that if there are any outstanding issues they need to be addressed within the relevant cycle;
2. If not signed off within the relevant cycle, then it may delay salary progression and other entitlements; and

1. It was a priority of the Southern Metro Command that all PDA issues be resolved.

184 In her Statement, Insp Dixon outlined her knowledge and concerns:[88]

1. The Applicant told her that:
   1. He had been bullied by SS Denton in the past;
   2. SS Denton was responsible for the CSC investigation and the SDFD;
   3. He did not have current concerns dealing with SS Denton; and
   4. The entry in the ROCSID file was unjust as it did not reflect what happened;
2. Insp Dixon distinguished between the ROCSID entries (which were not her concern) and the separate PDA system;

1. There was one entry in the 2015/2016 PDA which referred to the CSC incident, but otherwise there were no matters adverse to the Applicant in the outstanding PDAs or any matters which required the Applicant to do anything;

1. There was no reason why the Applicant should not sign off the PDAs and by not doing so would not assist his utilising the grievance process, through WRD, to rectify the ROCSID entry;
2. Insp Dixon was concerned that the outstanding PDAs adversely impacted the Applicant in two ways:
   1. On his mental health, as he told her that outside work he spent 95% of the time thinking about these matters; and
   2. Financially, as annual pay increments were tied to completion of the PDAs.

185 Insp Dixon sought advice from Ms Alisa Flavel, at the PDU, regarding how to resolve the outstanding PDAs and was told that:[89]

1. Where, as in this case, a member had not escalated a dispute in relation to a specific PDA entry, and there was nothing detrimental on the PDA, she was able to request that the PDU sign off on the PDA manually;
2. After reviewing the 2015/2016 PDA entry of concern, Ms Flavel further advised that the relevant entry was policy compliant, save for the fact that it did not include what the Applicant's response to the issue was; and

1. The Applicant had 28 days after a PDA entry to submit a grievance, that is, not from the date of the event, so he had missed that opportunity. Even had he submitted the grievance at the time, the manager can amend an entry to ensure that it is policy compliant, so it would not automatically have been removed.

186 Considering the above, Insp Dixon formed the view that:

1. Even if the Applicant had raised a grievance, the PDA entry would not have been removed;
2. The underlying issue was the ROCSID finding and not the PDA entry; and

1. The Applicant was effectively using the PDA system to get leverage in respect of his attempt to get a change to the ROCSID entry.

187 On 24 July 2018, Insp Dixon met with Sgt Ginters and the Applicant, which is recorded in the Applicant's PDA extracted above. Insp Dixon indicated to the Applicant that:

1. She had no performance concerns with him, his performance indicators were excellent, he was consistently a high achiever and he did not require performance management;
2. She had to resolve the outstanding PDA issue; and

1. Considering advice from the PDU, she would be requesting that they manually sign off the outstanding 2015/2016 PDA, in accordance with the VPM, as there were no performance issues that needed to be managed. This in fact happened.

188 Once the outstanding 2015/2016 PDA had been signed off and closed, Insp Dixon understood that there were no further adverse PDA entries in question on the subsequent two PDAs and therefore there should be no reason why the Applicant would not be prepared to sign off. However, he continued to refuse to do so. Insp Dixon also understood, from Sgt Ginters, that the Applicant was not happy that the 2015/2016 PDA had been arranged to be signed off.

189 I interrupt the chronology at this point to make the following observations:

1. Insp Dixon clearly understood and accepted that a PDA could be manually signed off by the PDU upon request, where there were no outstanding issues, without the relevant officer formally digitally signing off;
2. The remaining two outstanding PDAs had no outstanding issues and could have been manually signed off in the same way;

1. Insp Dixon did not adopt the same procedure to dispose of the remaining two PDAs apparently because: she understood that the Applicant was not happy with the manual sign off; and she believed that the Applicant had no basis to resist signing off himself;

1. The following chain of events, for reasons explored further below, had the opposite effect: predictably, the Applicant continued to refuse to sign off, in the honest belief that he was entitled to do so; and the consequent threat of disciplinary action and a mandatory direction had a disastrous impact upon his mental health.

190 Insp Dixon formed the view that the Applicant's continued refusal to sign off the remaining PDAs, as instructed, amounted to a failure on his part to participate in the PDA system.

191 Insp Dixon was aware she had to follow a process whereby the matter had to be escalated to the WRD for resolution. She sought advice from Insp Stafford who in turn contacted S/I Green.

192 S/I Green was responsible at the time for compiling a monthly report of outstanding PDAs, which could include a long list of members for a variety of reasons, such as recreation or maternity leave. She said that the Applicant was not treated any differently to other members for whom she was responsible.

193 I note at this point that the Respondent did not adduce any evidence of any other police officer having ever received a similar Directions letter subsequently issued to the Applicant.

194 On 18 October 2018, at 12:32pm, Ms Lyndel Ross emailed SS Dixon indicating that VicPol were able to issue a lawful direction to the Applicant to sign his outstanding PDAs:[90]

Following our earlier discussion in relation to member Senior Constable Ryan Gilmore, Workplace Relations is able to provide the below advice to local management:

Your course of action to provide Senior Constable GILMORE with a lawful direction to sign off his PDA is fair and reasonable to the member refusing to do so 'on principle' and after multiple conversations with management requesting him to do so due to the PDAs not identifying any areas of controversy or concern.

Local management is able to provide Senior Constable GILMORE with the lawful direction to sign off his PDA within a reasonable timeframe. Failure to comply with this direction from management may result in an admonishment.

If Senior Constable GILMORE does not comply with the direction and an admonishment is issued, then a breach of discipline process would commence with local management referring the incident to PSC under a Form 918 (Complaint/Incident form against the member).

195 The Applicant asserts that such direction contravenes the above Policy which states:[91]

By electronically signing the assessment the person making the signature is acknowledging the content of the assessment.

196 Insp Dixon then described the following sequence of events, which all took place on 18 October 2018:[92]

1. She was in receipt of advice from Ms Ross (from WRD) (extracted above);
2. Acting on such advice, in the presence of Insp Stafford, Insp Dixon verbally directed the Applicant to sign his PDA; he refused;

1. A draft letter was provided to her by Insp Stafford who in turn had been given the draft by S/I Green; and

1. A signed letter dated 18 October 2018 was served by Insp Dixon on the Applicant requesting a written response in relation to his failure to comply with a lawful direction, under s 171 of the VP Act, to sign his outstanding PDAs (the Directions letter).[93]

197 In summary, the Directions letter provided that:

1. SS Dixon was given responsibility for investigating an alleged breach of discipline under s 125 of the VP Act;
2. The Applicant had failed to comply with the Chief Commissioner of VicPol's instructions under s 61 of the VP Act, which includes the VPMP;

1. The VPMP includes a direction at paragraph 1.3 that 'all police members ... must complete their PDA prior to the assessment due date';

1. The Applicant had failed to complete PDA system appraisals and failed to comply with a lawful direction to complete outstanding assessments;
2. The Applicant had PDA appraisal reports outstanding for the periods ending 28 February 2017 and 2018;
3. On 18 October 2018, SS Dixon had directed the Applicant to complete all outstanding PDA reports;

This direction is a binding lawful instruction. Failure to comply with a lawful instruction may constitute a breach of discipline under section 125.(1)(i) Victoria Police Act 2013.[94]

1. SS Dixon directed the Applicant, under s 171 of the VP Act, to provide a written response to questions contained in the Directions letter, exercising delegated power from the Chief Commissioner of VicPol;
2. Any response may 'be used as part of a disciplinary proceeding or Victoria Police personnel management function'.

198 In oral evidence, Insp Dixon stated that the Directions letter did not itself say that the Applicant was subject to a disciplinary charge at that stage, rather it directed the Applicant to provide a written explanation. Insp Dixon acknowledged the letter (drafted by A/Insp Green) was probably not worded as she would have preferred but it was her decision to serve the letter.

199 On 24 October 2018, the Applicant provided his detailed written response to the Directions letter.[95] At the same time, he emailed OL/WH,[96] referring to such response, and said:

Can I use this statement as my template to start the ball rolling with assistance from Onelink, as this is getting worse before it gets better.

200 I again interrupt the chronology to make the following observations:

1. Although Insp Dixon may not have been previously aware of all the content contained in the Applicant's response, there is nothing in that response that the Applicant had not communicated multiple times to multiple personnel in multiple parts or divisions of VicPol in his endeavour to be afforded his employee entitlements;
2. The Applicant expressly states to the effect that he does not hold then SS Dixon or Insp Stafford responsible for the threatened disciplinary action;[97] and

1. The Applicant clearly sets out in a reasoned manner what he has always been seeking, namely an opportunity to be heard and to know the case which is being put against him. He also points out that he is not refusing to sign off the PDAs as a matter of principle. As related in the Applicant's response to the Directions letter:[98]

The PDA programme is a system designed to address performance and issues. there are major issues here.

I'm not just signing it off 'on principle' as what is being told to Lynel Ross at Workplace Relations.

The major issues here need to be addressed and instead SD1 management are using the PDA system to manipulate complex circumstances.

I would like to be afforded the same basic [principles] of natural justice and procedural fairness that every other member of Victoria Police would receive in accordance with the PSC classifications, policy and findings stipulated in the integrity management guide which have not been followed to date.

This has destroyed my career and reputation and I consider my career to be effectively over with Victoria Police as a result of Senior Sergeant DENTON'S behaviour. This has taken a significant toll of having to try and prove the truth of what actually occurred which is proven by objective facts. If I had any doubt whatsoever I would have walked away almost four years ago.

1. In the end, in my view, Insp Dixon implemented a creative 'work around' to put an end to the PDA impasse. I will return to this matter below.

201 Insp Dixon accepted the Applicant's response, taking the view that:[99]

[66.] ... the reason why he was not signing off on the current outstanding PDAs was because of entries on the previous (closed) PDA entries and his dissatisfaction with the previously mentioned PSC findings and ROCSID recordings. I accepted his response, and made a decision to leave the PDA entries open until such time that workplace relations were able to come to an outcome or finding on the underlying issues causing him to not sign his PDA.

202 It took another five months for the Applicant to receive a response to his letter.

203 By letter date 28 March 2019, Insp Dixon advised the Applicant as follows:[100]

I write to you providing an outcome to the directions letter you received from me dated 18/10/2018, in which you were directed to complete all outstanding PDA reports. The letter stated that failure to comply with this lawful instruction may constitute a breach of discipline under Section 125(1)(i) Victoria Police Act 2013.

I acknowledge your reply dated 24/10/2018 in response to that letter. I wish to advise you that at this time there will be no disciplinary action with respect to the outstanding PDA reports which you were directed by me to complete.

In this decision I have considered the reasoning you supplied for your non compliance with the direction given by me.

In your reply you stated that you would like to be afforded the same basic principles of natural justice and procedural fairness that every other member of Victoria Police would receive in accordance to PSC Classifications, policy and findings stipulated in the integrity management guide. Respecting this, the PSC matter in question that you raise has been forwarded to the Southern Metro HR Business Partner, Michelle SPENCER, for review to ensure that procedural fairness has been applied to you.

I acknowledge that until such time as the PSC matter has been reviewed, your preference is for the PDA's to remain outstanding. In the meantime, we await the outcome and reply from Michelle SPENCER SMR HR Business Partner.

204 On 8 May 2020, or nearly 14 months later, Insp Dixon attended a meeting with the Applicant and SS Sonya Clark, the incoming SS at Malvern PS. Insp Dixon had initiated this meeting after receiving a global email from VicPol advising that PDAs would no longer be a requirement for Constables and Senior Constables.[101]

205 The relevant part of the 2019 Enterprise Agreement provides:[102]

Employees of Sergeant or above rank ... will be assessed annually to determine the employee's suitability for progression. Suitab[ility] for progression will be assessed against the agreed policing capability for the employee's progression level. At the commencement of each assessment cycle employees will agree with their assigned assessor up to 2 performance objectives to be achieved during the year. In order to be eligible for progression employees are required to achieve the agreed performance objectives which will include measures of excellence and skill acquisition commensurate with their level of responsibility.

206 Insp Dixon explained to the Applicant at the 8 May 2020 meeting that she now had to manually close off the outstanding PDAs by reason of the new 2019 Enterprise Agreement. Insp Dixon said that the Applicant did not mind this, because he was not the one signing them off. This then triggered incremental entitlements, and consequently the Applicant received back pay for the last three years.[103]

1. Did not think that the entries made by the Applicant in his PDAs or his refusal to sign off had any impact on his status or progression within the organisation;
2. Considered that the Applicant did provide a clear response to the Directions letter and requested PDU to suspend the PDAs, but because a refusal to sign off on a PDA was a disciplinary breach she sought advice from WRD. After receipt of advice, a decision was made not to take any disciplinary action for not signing off on the PDA;

1. Was also aware of a proposed amendment to the EBA which would dispense with the PDAs altogether;

1. Told the Applicant informally of the decision and followed this up with a letter dated 28 March 2019, that no disciplinary action would be taken in respect of the outstanding PDA. Accordingly, the Applicant was advised five months after the Directions letter. She admitted that 'timeliness of resolution is not a strength of VicPol', but in her current role is now aware of the barriers to progression;[104] and
2. Knew nothing about a complaint made by the Applicant to IBAC. She had sought advice from her supervisor and she could not see any link between any IBAC complaint and the Directions letter which was issued.

1. She confirmed to the effect that she was unaware of any matter concerning S/I Green and IBAC;[105]
2. In relation to the 5-month delay before an outcome was advised to the Applicant, she said that she was merely following process;

1. She referred to a meeting at Dandenong PS attended by herself, the Applicant, Insp Stafford and Ms Spencer where the Directions letter and options to resolve the PDA issue were discussed. Ms Spencer, WRD, was attending to the PSC complaint and the bullying complaint and her role was to try to resolve the PDA. Options considered were whether to make amendments or keep the PDAs open; the Applicant preferred to keep them open;

1. Having read his response (to the Directions letter) and understood his reasons, she decided not to take any disciplinary action and allow the Applicant to pursue other avenues;
2. She clarified that the Directions letter was seeking a written response under s 171 of the VP Act; it was not directing him to sign off. She had the authority to issue such a letter; and
3. The offence would be a failure to comply with a lawful direction. The Applicant did comply, namely he did provide a written response as directed and therefor did not commit a breach of discipline by failing to comply with a lawful order.

209 Insp Dixon drew a distinction between 'completing a PDA' (as referred to in the EBA) and 'closing the padlock' which is an electronic acknowledgment or signature. She agreed that the Applicant had participated in the PDA. She could not understand why he was not satisfied with what he had written in the outstanding PDAs. The process concerning his challenge to the ROCSID was a separate issue and process. She agreed that she did have a different pathway to follow through the PDU but was concerned that he was unhappy about her using that mechanism previously.

210 The delay was outside her control but she was otherwise directly involved in supporting him in the workplace and to help with strategies to deal with any mental health concerns which he might raise.

211 The Applicant referred to the VPMG which deals with completing a PDA. In part, the Guidelines say:[106]

If the employee is unable or refuses to electronically sign off, the issue should, in the first instance, be resolved at the local level.

212 Insp Dixon said that this is precisely what she endeavoured to do in speaking to the Applicant and contacting the PDU to arrange closure of the PDA.

213 When it came to the more recent outstanding PDAs, Insp Dixon said that there were no comments which were required to be cleared. The Applicant was also suitable for progression. Clause 65.17 of the VicPol EBA 2015 says:

If the employee has completed their Performance Development Assessment at the assessment due date, being 30 days prior to their actual progression date, and no evidence of unsuitability has been documented and brought to the employee's attention, the employee will progress on their actual progression date without further review.

214 As indicated above, the Applicant has made his victimisation claim in two ways. One relies upon the alleged behaviour of S/Insp Green. The Applicant says that following an enquiry he made of S/I de Ridder, S/I Green was copied into a reply email which alerted him to the Applicant's (first) IBAC complaint, which was in breach of his protected disclosure. Shortly thereafter, S/I Green had drafted a 4-page letter in what become the Directions letter served upon the Applicant by then SS Dixon.

215 The Applicant alleges that such Directions letter fell outside of S/I Green's delegation,[107] which resided with the Director of WRD. The Applicant connects the disclosure of the IBAC complaint to the threat of disciplinary action and says that the Direction was motivated in response to his IBAC complaint.

216 In addition, the Applicant referred to a meeting with S/I Green in which the Applicant was threatened with a charge of stalking if he continued to pursue the matter and seek copies of WorkCover documents.[108]

217 I will deal briefly with this aspect of the Applicant's victimisation claim below.

1. The Applicant engaged in employment activity;
2. Such employment activity was in regard to his employment entitlements;

1. The Respondent treated or proposed to treat the Applicant unfavourably because of his attribute of employment activity;

1. The attribute was at least a substantial reason for the treatment; and
2. The Applicant suffered a detriment as a consequence.

219 The Respondent denies that the Applicant was discriminated against and says that none of the above criteria are satisfied.

220 The starting point is the investigation conducted by SS Denton, following the referral by IBAC to the Chief Commissioner of VicPol, of the complaint lodged by the CSC complainant. Whilst the Applicant provided a written account of the CSC incident to SS Denton (as advised by SS Gardner), he did not thereafter receive:

1. An acknowledgment, by SS Denton or anyone else, of his written account;
2. Advice as to what other evidence was being considered by SS Denton;

1. An opportunity to be heard or be represented prior to a finding and recommendation being made;

1. A notification of the finding and confirmed SDFD, relating to a failure to investigate a reported offence, namely a wilful and obscene exposure; or
2. A notification that the SDFD was recoded in his ROCSID on 6 October 2015.

221 I am comfortably satisfied that the evidence supports a finding that the Applicant engaged in employment activity under both paragraphs (a) and (b) of that definition.

222 The EO Act is protective legislation. The objectives set out under s 3 of the EO Act implicitly guide the Tribunal to an expansive interpretation of the Act's protective provisions. It is inappropriate and unhelpful to focus on the language which an employee uses. For instance, it is not necessary for an employee to explicitly refer to the expression 'employee entitlements'. The application of the definition of 'employment activity' must be directed at the purpose and intent of an employee's request or communication.

223 In my view, an examination of the Applicant's evidence and written communications, detailed above and summarised below, gives a compelling account of his attempts to access what he understood to be his basic rights under the terms and condition of his employment.

224 The Applicant's initial requests, where he was still largely 'in the dark' regarding the nature and content of the SDFD, fall within paragraph (a) of the definition of employment activity.

225 Thereafter, the Applicant made multiple oral and written requests over a prolonged period, as detailed above, requesting and/or expressing concern that he had not been, is not being or will not be given certain employment entitlements as described below. These communications fall within paragraph (b) of the definition of employment activity.

226 I also find that such employment activity extends to the complaints made to IBAC, which related to the same alleged refusal or failure on behalf of the Respondent to afford him such entitlements.

227 I note that Counsel for the Respondent submitted that a complaint to IBAC cannot constitute 'employment activity' as defined because it is not a direct request or communication with his employer. I reject this interpretation as artificial and without achieving a meaningful distinction. The subject matter of both complaints to IBAC had already been raised directly with the Respondent. Furthermore, s 167 of the VP Act[109] expressly provides to the effect that a complaint may be made about the conduct of a police officer to another police officer or to IBAC. Provided, however, that where a police officer has reason to believe that another officer is guilty of misconduct, then a complaint must be made to a more senior police officer or IBAC.

228 Accordingly, in my view, the complaints which the Applicant made to IBAC, which were referred to VicPol for investigation, do constitute employment activity. However, my findings regarding discrimination do not rely upon the Applicant's complaints to IBAC.

229 Counsel for the Respondent referred the Tribunal to the Explanatory Memorandum (EM) for the Equal Opportunity Amendment Bill 2007, which first introduced the new attribute of 'employment activity' and a new definition of 'employee entitlements' into the Equal Opportunity Act 1995. In relation to 'employee entitlements', the EM states:

A request for information does not extend to questions unrelated to or outside of an employee's existing employment entitlements. A request for information would include questions about the source of the employee's employment entitlements, what the entitlements are and whether the employee has been, is being, or will be given those entitlements. For example -

• what is my rate of pay?
• how many holidays have I accrued?
• do I have an entitlement to paid maternity leave?
• have I been paid for those extra hours I worked?
• will I be able to take my annual leave next month?

A request for information can be made verbally or in writing but the request must be reasonable. This means that the nature of the information sought about the employment entitlements should be reasonable and that the request should be made in a reasonable manner and at a reasonable time. For example, a request will not be reasonable if the employee asks the employer for confidential or unduly complicated information that the employer cannot readily access.

In relation to an employee, employment entitlements are defined as the employee's rights and entitlements under an agreement, industrial instrument or legislation that applies to the employee.

In particular, the definition covers rights and entitlements under -

• a contract of service, which includes a workplace agreement, employment agreement or award within the meaning of the Commonwealth Workplace Relations Act 1996;
• a contract for services;
• a Victorian Act (for example the Long Service Leave Act 1992) or an enactment (which is defined in section 4(1) of the Equal Opportunity Act 1995 to mean a subordinate instrument, such as regulations);
• a law of the Commonwealth, which includes employment entitlements that arise under the Workplace Relations Act 1996 such as the Australian Fair Pay and Conditions Standard.

230 Counsel submitted to the effect that the kinds of examples given in the EM, as to 'employee entitlements', are of a different category to the entitlements sought to be relied upon by the Applicant.

231 In my view, the EM does not limit the ambit of employee entitlements by giving a few simple examples. Furthermore, there is no suggestion in the EM that the entitlements are limited to a particular category or matters such as rates of pay, leave or hours of work. Employee entitlements are defined in terms of the various sources which give rise to an employee's rights, entitlements and duties.

232 The Applicant has referred to several provisions in different statutes as well as the relevant VicPol EBA 2015 and Rules and Guidelines applicable to his terms of employment. In essence, he submits that these provisions impute terms and conditions into his employment with the Respondent which, in the circumstances of his complaints, entitled him to seek information as to the conduct of the investigation made into his performance, make a complaint in relation to the outcome of the investigation, and be afforded a fair hearing. In particular, he says he was entitled to be informed of and have an opportunity to respond to the evidence relied upon by the Respondent to support the SDFD.

233 First, the Applicant relies upon the VicPol EBA 2015 extracted above. Counsel for the Respondent purported to dismiss these provisions on the basis that they represented mere statements of commitment and intent rather than binding obligations. In my view, there is no compelling reason to read these provisions down in such a manner where there are readily identifiable practices and procedures available to give effect to the intended protections. Accordingly, the EBA refers to the Respondent:

1. Providing a respectful workplace free or discrimination and victimisation;
2. Reducing the frequency and impact of mental workplace injuries;

1. Providing a workplace that is free of bullying, through the development and implementation of policies established for the prevention and elimination of bullying; and

1. Recognising the right of employees to the right to be represented and the right to be protected against unfair treatment and discrimination.

All of these express commitments are consistent with and will be facilitated by affording police officers generally the right to be heard, particularly when facing potentially serious accusations of a performance failure, which carries the potential for serious disciplinary action, including suspension. It is not to the point than in this instance the Applicant was ultimately subjected to minimal workplace guidance. There is no question that a matter referred by IBAC for investigation could have resulted in serious consequences for the Applicant; and one senior officer (Insp McCrory, PCU) is recorded as preferring an admonishment, suggesting that the workplace guidance was too lenient. Certainly, the Applicant was questioned about the ROCSID entry upon seeking a promotion so that, on its face, the ROCSID record, at the very least, required explanation and may potentially have impacted adversely upon a promotion opportunity.

234 In my view, the nature and potential serious consequences of a finding such as the SDFD, consistent with the explicit VicPol EBA 2015 commitments, invoked an employee entitlement to natural justice, to be appraised in detail of the case being made against the Applicant and the right to be afforded the opportunity to be heard and be represented.

235 Secondly, in my view, the VPMP contains many directions as to practices and procedures which are mandatory for a police officer and where failure to comply may result in disciplinary action.

236 For instance, the VPMP, Professional and Ethical Standards states, in part:

The Professional and Ethical Standards provide the minimum standards that all employees must apply. Non-compliance with or a departure from the Professional Standards and Conduct may subject an employee to management or disciplinary action. [emphasis added]

237 Further, the VPMP (Performance and Professional Management)[110] provides the way a police officer must participate in and complete their performance assessment; work unit managers must ensure a performance assessment is submitted annually; and:

• Performance management decisions must be made in accordance with this Policy, the principles of natural justice and procedural fairness. [emphasis added]

238 Further, the VPMP (Performance and Professional Management)[111] provides for a grievance procedure and review regarding PDA entries, the denial of incremental progression and the management of underperformance process or outcome.

239 Accordingly, the VPM clearly forms part of the terms and conditions of the Applicant's contract of employment.

240 Thirdly, as indicated above, the VP Act[112] expressly provides to the effect that a complaint may be made about the conduct of a police officer to another police officer or IBAC.

241 In my view, the definition of conduct under s 166 of the VP Act, cited above, is broad enough to afford the Applicant the entitlement to complain about the conduct of another police officer:

1. In the first instance, regarding SS Denton, where he had reason to believe that SS Denton had failed or refused, in the performance of his function or duty, to properly conduct an investigation into the Applicant's performance (originating by referral from IBAC); and
2. Subsequently, a series of senior police officers to whom the Applicant referred his complaint and concerns, whom the Applicant believed had failed or refused to conduct a review of the SDFD or otherwise afford the Applicant a fair hearing.

242 In the case of the Applicant's referrals to IBAC:

1. The first complaint outlined above, in substance, reflected his earlier complaint to the Respondent about the way the SDFD was made, which could fall under the definitions of 'misconduct' cited above; and
2. In the case of the second complaint, raised an allegation of breach of protected disclosure, which could also fall under the definition of 'misconduct' cited above.

243 Accordingly, I am comfortably satisfied that the Applicant engaged in employment activity regarding his employment entitlements.

244 I will deal briefly with the Applicant's complaint of a conflict of interest.

245 The VPMP, Professional and Ethical Standards states:

A conflict of interest arises if your personal interests influence, or appear to influence, the impartial performance of your duties. Conflicts of interest can damage the confidence and trust members of the public have in Victoria Police and its employees, whether they are actual, potential or perceived conflicts. Having a conflict of interest is not unethical in and of itself. However, it can become an issue if the situation is not appropriately managed. [emphasis added]

246 In this case, the Applicant's previous experiences with SS Denton in 2012, as described above, was a reasonable basis for him to raise the issue of a conflict of interest. That is not to say that his perceptions were objectively correct or justified but, having been raised, with the examples which he gave, he was entitled to be taken seriously and otherwise gives context to why the Applicant sought an independent review of the SDFD.

247 Accordingly, I reject the submission made by Counsel for the Respondent to the effect that the Applicant's complaint was principally about the alleged conflict of interest. The concerns raised by the Applicant were always about the SDFD and the alleged failure or refusal of the Respondent to afford the Applicant the opportunity to know the case against him and be heard, with a view to correcting his performance record.

248 Both the Applicant and Respondent referred the Tribunal to many responses from various sources within the Respondent which purported to address the alleged conflict of interest.[113] I could not find any explanation in any of those responses which substantively addressed the circumstances of alleged conflict raised by the Applicant. The response by S/I de Ridder 'that the matters [the Applicant] raised have not identified any issues in relation to any actual conflict of interest during the investigation' (emphasis added) is not consistent with the above Policy Rule. However, the essence of the Applicant's concern is that he has never been appraised of the content or extent of the investigation or the basis upon which the SDFD was made. The Respondent's responses frequently conflate the conflict of interest complaint with the substantive request by the Applicant to be afforded his employee entitlements regarding the SDFD.

When did Applicant engage in Employment Activity?

249 The first occasion when the Applicant received any information concerning an adverse decision by SS Denton, following his investigation, occurred at a meeting on 15 January 2016 with his supervisor SS Gardner. The Applicant was orally advised that the complaint file had been substantiated, but he was not given details of the nature of the finding, and he was not advised of any ROCSID entry.

250 At this point, the Applicant requested, but was denied, access to see the investigation file. I accept that this request was the first occasion when the Applicant engaged in employment activity, which reasonably fell under paragraph (a) of the definition.

251 On 20 January 2016, the Applicant said that he sought assistance from the Police Association to review SS Denton's finding. He had still not been formally notified and therefore could not provide documentation regarding the Decision, as requested by the Association. I accept that this request was the second occasion when the Applicant engaged in employment activity, which reasonably fell under paragraph (a) of the definition.

252 On 1 February 2016, SS Gardner made the entry in the Applicant's PDA extracted above.

253 As indicated under the Applicant's evidence above, the Applicant was led to believe from his conversation with SS Gardner and the PDA entry which he made that the duty failure finding related only to a failure to take notes. The Applicant accepted this and the consequent workplace guidance. In reliance upon this understanding, he did not lodge a grievance against the PDA entry at this stage. As indicated above, the Applicant would be subsequently denied the opportunity to file such grievance based on being out of time, namely more than 28 days after the entry date.[114] In my view, such a response represented a serious denial of a basic right afforded to the Applicant under the PDA system. I will return to this issue below.

254 At this point, the Applicant had still received no formal advice as to the nature and content of the SDFD. On 8 February 2016, acting on the advice of the Police Association, the Applicant made an FOI request to obtain documentation to assist with a review, which was denied on 18 March 2018 by reference to the IBAC Act. I accept that this request was the third occasion when the Applicant engaged in employment activity, which reasonably fell under paragraph (a) of the definition.

255 As indicated above, the Applicant was subsequently unsuccessful before the Tribunal regarding his FOI request.

256 In Marke's case, which was not brought to the attention of the Tribunal in this case, her Honour Quigley J had occasion to consider an equivalent application and argument based on the application of the IBAC Act. In summary, her Honour made the following findings:[115]

6 ... I find that on a proper interpretation of s 194 of the IBAC Act, the documents in the possession of Victoria Police, being documents which arise from, and are related to, Victoria Police's investigation under the [VP Act], are not documents which arise from, or are related to, an investigation conducted under the IBAC Act. Consequently, the documents are not exempt from disclosure under the FOI Act by reason of s 194(1)(b) of the IBAC Act.

7 I have concluded that s 194(1)(b) exempts documents from the FOI Act that disclose information which relates to an investigation actually conducted by the IBAC under the provisions of the IBAC Act.

8 This interpretation of s 194(1)(b) of the IBAC Act is clear from a plain reading of the legislation; is supported by its statutory context, purpose and history; and, to the extent necessary, is the interpretation which is the most compatible with the right to freedom of expression in s 15 of the [Charter].

9 In my view, the more expansive interpretation of s 194 put forward by counsel for Victoria Police, which would operate to restrict access to the documents sought, would be inconsistent with the purposes of both the IBAC Act and the FOI Act.

257 In her Honour's Reasons, she elaborated further:[116]

[98] As a consequence of my review of the IBAC Act as a whole, I have concluded that there is a difference between an investigation conducted by the IBAC in accordance with the IBAC Act and an investigation conducted by Victoria Police under the VP Act where IBAC maintains an oversight role.

[99] When s 194(1)(b) is read in the context of the processes and powers of the IBAC Act, including the IBAC's police oversight role, I cannot but conclude that there is a clear distinction between documents which relate to an investigation conducted by the IBAC itself and other bodies who investigate a complaint.

258 In relation to the Applicant's prior FOI case before the Tribunal, Quigley J noted:[117]

[148] I was referred to the decision of Gilmore v Victoria Police FOI Division (Gilmore), which was determined under the same version of the IBAC Act that applies in this case.

[149] I note that the Tribunal in Gilmore was not apparently referred to the extrinsic documentation to which I was referred, and the Tribunal, whilst complimentary about the submissions received, was not in the same fortunate position as I have been to have experienced counsel fully arguing the matter.

259 Having regard to the decision in Marke's case, it is likely that the Applicant's previous FOI application would now be decided differently.

260 By 18 March 2016, the only information concerning the SDFD made available to the Applicant was the entry made in his PDA by SS Gardner, which was inconsistent with his account of events and knowledge of the facts.

261 On 24 March 2016, the Applicant lodged his first IBAC complaint. I accept that this complaint was the fourth occasion when the Applicant engaged in employment activity, which reasonably fell under paragraph (b) of the definition.

262 At this point the Applicant, acting on advice variously given by different parts of the Respondent's organisation, proceeded to make the following requests. I accept that, by each of these requests, the Applicant was engaging in employment activity under paragraph (b) of the definition:

1. He was told to seek access to his personal file only to be told by HR Payroll, on 29 March 2016, that his file contained no reference to complaints or the CSC incident;
2. On 11 April 2016, he detailed his concerns to PSC, which he was then advised to direct to local management;

1. On 13 April 2016, the Applicant raised the same concerns with Insp Zulian, who in turn communicated with the Applicant's Superintendent and LAC and otherwise confirmed that he should receive formal notification (which he had still not received);

1. On 20 April 2016, he lodged a formal bullying complaint with the Respondent through Workplace Admin Standards;
2. On 17 August 2018, he lodged a further bullying complaint with the Respondent through OL/WH;
3. On 23 August and 3 September 2018, the Applicant lodged a second complaint with IBAC alleging a breach of his protected disclosure under the 2016 IBAC complaint;
4. On 17 June 2019, the Applicant emailed multiple personnel, who had been involved in his complaints and enquiries, again summarising his outstanding requests and concerns; and
5. On 4 August 2019, the Applicant emailed Ms Fenner again raising concerns, including why no meeting had been arranged with him and SC Phillips.

263 On 23 May 2016, the Applicant received official notification of the SDFD by an undated letter, over 7 ½ months after the Decision had been made.

264 At the same time, during May to July 2016, the Applicant was advised to refer his 'bullying' complaint to OL/WH; and was then advised to refer the matter to EPSO, which he did on 29 July 2016.

265 By August 2016, the Applicant and SC Phillips sought the assistance of Sgt Maloney, who conducted an independent review. Sgt Maloney provided a report critical of the notification given by Insp Beer and the ROCSID entry and also confirming that no reports had been included on LEAP regarding any complaint or reported offences. These concerns do not appear to have been addressed at any stage.

266 In the meantime, the above correspondence indicates that in August and September 2016, the Applicant's complaint to IBAC, which had been referred to VicPol, had been reviewed by A/Insp Mulholland whose advice to IBAC resulted in IBAC advising that no further action would be undertaken; and the matter was considered closed.[118]

267 The decision made and communicated by VicPol to IBAC, on its face, purports to deal with an investigation and review of the SDFD. IBAC adopted the recommendation made by the Respondent. At no stage did it conduct any further investigation of the issues. This is a perfectly normal and usual response; IBAC having delegated the investigation to VicPol. However, the decision, by way of review by VicPol upon referral from IBAC and the subsequent adoption of that decision by IBAC, is then communicated to the Applicant as a complete answer to the concerns which he has raised.

268 In his email to S/I de Ridder dated 10 October 2016, the Applicant raised a number of questions and again expressed concern that neither he nor SC Phillips had ever been afforded procedural fairness, in particular they had not been offered a right of reply or the opportunity to make a sworn statement.[119]

269 Whenever the Applicant persisted in raising the same concerns or additional related concerns, he was either advised:

1. To refer the matter to another part of the organisation;[120]
2. That the matter was still being considered;[121]

1. That the matter had been referred to another senior officer or branch;[122]

1. That a meeting would be arranged to consult with him;[123] or
2. That his complaint had been previously examined and dealt with.[124]

270 In my view, at no stage was there an open and transparent review of the SDFD; there is no transparency as to what has in fact occurred, who was consulted and what evidence was considered and reviewed. Certainly, the Applicant was never involved in the process: he was never advised of the evidence relied upon in the making of the Decision; and never given an opportunity to be heard in relation to any evidence of which he had previously not been aware.

Was the Applicant treated or proposed to be treated unfavourably because of his attribute of employment activity; and was the Applicant's attribute of employment activity at least a substantial reason for the treatment?

271 In the circumstances, these two factors are closely associated and can be considered together.

272 'Unfavourable' is not defined in the EO Act. Accordingly, it is appropriate to use its ordinary meaning as defined in the Macquarie Dictionary: 'not favourable; not propitious; disadvantageous; adverse'.[125] The question therefore is whether the Respondent behaved or proposed to behave in a manner which was not merely trivial but can be fairly described as adverse or disadvantageous toward the Applicant, because of the attribute of employment activity.

273 I must be satisfied that there was no equally or more probable explanation for the Respondent's conduct. The Respondent's Counsel submits that there can be no criticism of such conduct particularly in the context of a large organisation. The Applicant did get a response to his complaints from various parts of the Respondent that were simply doing what they were employed to do. I reject these submissions. The Respondent does not say that it did afford the entitlements that the Applicant claimed, rather it says to the effect that:

1. there were no such entitlements;
2. the Respondent was entitled to make the SDFD in the manner in which it was made; and

1. the Applicant was not entitled to seek more explanation or 'go behind' that Decision.

274 In my view, the Applicant was clearly treated unfavourably because of his employment activity. He asserts that he communicated to his employer, both orally and in writing, a concern that he had not been, or would not be given an employment entitlement, and thereafter he was subjected to a number of detriments. The Applicant engaged in the employment activity for the purpose of ascertaining and then seeking to have afforded to him his employee entitlements. It follows that the attribute was at the very least a substantial reason for the unfavourable treatment.

275 In making the above findings I am not, as seemed to be suggested by the Respondent's Counsel, making any comment or finding upon the substance or accuracy of the SDFD. This matter was never before the Tribunal and in any event, as indicated above, the evidence relied upon by SS Denton and subsequently by other parts of the Respondent who purported to conduct a review was not before the Tribunal.

Did the Applicant suffer a detriment as a consequence?

276 'Detriment' is defined non-exhaustively to include humiliation and denigration. It will also include any similar harmful effect on the Applicant, such as hurt feelings; adverse effects on enjoyment of his employment; financial loss or disadvantage; loss of career prospects; and diminution to his professional reputation.

277 In my view, the detriments suffered by the Applicant must be assessed through the prism of his performance record and career prospects. There is compelling evidence of the Applicant's excellent record in the police force. His PDAs are replete with high praise; and his own entries also indicate a determined focus upon professional development, the pursuit of additional responsibility and promotion.

278 Once the Applicant was appraised of the nature and extent of the SDFD, he apprehended that:

1. He was the victim of an unjustified finding, not supported by the facts known to him;
2. His official record now bore a permanent, unprecedented, and potentially serious 'black mark' against his performance and judgement; and

279 In my view, all the above apprehensions of the Applicant were reasonable, in the context of the evidence presented before the Tribunal. It was, therefore, hardly surprising that such a determined and conscientious officer, with an otherwise impeccable performance record, would pursue his employment entitlements to clear his name.

280 I am satisfied that the Applicant suffered a range of detriments as follows:

1. First, and principally, the Applicant suffered adverse impact upon his mental health over a prolonged period. Although the Applicant did not rely upon an expert report of a relevant health professional as to his mental state, I am satisfied that he gave compelling and credible evidence in this regard, which was also consistent with the comments he made in many communications with the Respondent; and consistent with concerns expressed by Insp Dixon in her correspondence and acknowledged in oral evidence. I also note that, at one stage, the Applicant was distressed enough to take leave, with the expressed prospect of not returning to work;
2. Secondly, the Applicant suffered humiliation by what he perceived to be a wrongful accusation and SDFD and that such humiliation was aggravated by the Respondent's apparent failure or refusal to afford him his employee entitlements, as identified above; and

1. Thirdly, the Applicant has suffered a likely adverse impact upon his career prospects.

281 I note that the Respondent's Counsel submitted to the effect that the Applicant's career prospects were not adversely impacted, suggesting that the sanction given to the Applicant, of workplace guidance, was relatively minor. However:

1. The Applicant was asked to explain the ROCSID entry, when applying for a promotion in 2016, even before he knew of such entry or been formally advised of the SDFD;
2. The report of Sgt Maloney, cited above, concluded:

the sanctions that have been imposed far outweigh that of best practise regarding taking notes when the members were actually 'attending' in good faith and no offence was disclosed.

It is my opinion without having reviewed the entire Complaint File which has not been provided, that the sanctions imposed are excessive and damaging to the reputation and career prospects for both members.

1. The Respondent did not produce any evidence of the likely or usual promotional progression of an officer with a record and commendations comparable to the Applicant;

1. I note the outstanding reference provided by then SS Dixon in 2020,[126] in support of the Applicant's application for a position of Sgt (then A/Sgt). At the date of the Hearing the Applicant was still an A/Sgt; and
2. The Applicant noted in his PDA, extracted above, that he was not considered for promotion whilst his PDAs remained outstanding.

282 The Applicant has alleged that he was victimised by the threat of disciplinary action because of either or both of two actions taken by him.

283 First, it is alleged that the Applicant was victimised by way of threatened disciplinary action when the privacy of his protected documents (namely his first IBAC complaint) was revealed to S/I Green, who in turn drafted (without apparent delegation to do so) a direction which was ultimately served by then SS Dixon on the Applicant.

284 I will deal with this aspect of the alleged victimisation briefly. Whatever may have been S/I Green's ulterior intentions/motives, if any, there is no credible evidence to connect his knowledge of the Applicant's IBAC complaint with the draft contents of the Directions letter. Insp Dixon has taken full responsibility for such Directions letter, as described in her evidence, and she was not aware of any complaint made by the Applicant to IBAC.

285 Although, in my view, the procedure to which the Applicant was subjected regarding his PDAs constituted another aspect of victimisation (addressed below), I am satisfied that Insp Dixon was not in any way motivated by malice or any ulterior motive to victimise the Applicant for other complaints he was pursuing. Indeed, on the documents before the Tribunal, only Insp Dixon and Sgt Maloney clearly attempted to take care of the Applicant's professional interests.

286 Secondly, I will deal with the circumstance of the outstanding PDAs, in which the Respondent effectively placed the Applicant.

287 As indicated above, I accept that the VPM clearly imposed rights and obligations upon police officers, as part of their contract of employment, regarding the system of PDAs. The Applicant was consistent and transparent in documenting his concern with the entry made in his PDA on 15 January 2016. He believed that he could not in good faith digitally sign off on a PDA which he had reason to believe contained factual errors and was also inconsistent with the ROCSID record. Whilst the Respondent, at one stage, offered to make amendments to this entry, this still left the (inconsistent) ROCSID entry, which was the main source of grievance and potential harm for the Applicant.

288 The series of events which ultimately led to the Directions letter, in my view, reflect an extension of the failure or refusal of the Respondent to afford the Applicant his employee entitlements. The Respondent has sought to separate these matters, but they are inextricably intertwined. As a result, the Applicant was subjected to threatened disciplinary action and consequential detriment which were unnecessary and avoidable.

289 Shortly prior to the Applicant receiving the Directions letter, he made the entries extracted above from his 2018/2019 PDA, which succinctly summarised his outstanding concerns.[127]

290 In making the following observations, I do not intend any criticism of Insp Dixon's conduct:

1. The Applicant was denied the opportunity to exercise the grievance procedure regarding the PDA entry dated 15 January 2016, ostensibly because he was out of time to do so;
2. The Applicant had always participated in the PDA system. Indeed, there was never any criticism raised against the Applicant, either regarding the entries which he made or his performance, which was uniformly praised, or his response to the workplace guidance, which flowed from the SDFD. In short, there was nothing for the Applicant to complete in the content of any outstanding PDA or in any action he was required to perform or undertake arising from any entry made by his supervisor in the PDAs;

1. The Applicant expressed from the outset his genuine belief that:
   1. The VPM did not require an officer's sign off (by way of acceptance by an electronic signature) for the PDA to be completed; and
   2. He could not sign off PDAs which contained inaccuracies as to his professional performance or, if amended as suggested, contained inconsistencies with the ROCSID record;

1. SS Allen had confirmed to the Applicant to the effect that, in certain circumstances, the PDA can be closed 'with or without sign off';
2. Insp Dixon had, on advice from the PDU, requested that the 2015/2016 PDA be manually signed off and she acknowledged that this procedure could have been adopted for the remaining outstanding PDAs;
3. The Directions letter indicated, in part, that the Applicant:
   1. Was alleged to have failed to comply with s 171 of the VP Act by failing to comply with a lawful instruction (namely to sign off his PDA);
   2. Was alleged to have breached discipline under s 125 of the VP Act;
   3. Must respond to provide a written response to questions; and
   4. Any response may be used as part of a formal disciplinary proceeding.
4. Having responded to the Directions letter on 24 October 2018, within the time prescribed, the Applicant was not notified of the outcome until 28 March 2019, or five months later, when he was advised to the effect that no disciplinary action would be taken and that:

the PSC matter in question that you raise has been forwarded to the Southern Metro HR Business Partner, Michelle Spencer, for review to ensure that procedural fairness has been applied to you.

291 Whilst this was effectively the end of the issue of outstanding PDAs, for the Applicant, as indicated above, it was not until May 2020 that they were manually signed off and his accrued financial increments given to him.

292 The refusal of the Respondent to deal with the Applicant's grievance regarding the PDA entry of 15 January 2016, when he first attempted to raise the grievance (albeit technically out of time because he had been deprived of relevant information) is inexplicable having regard to the timing and circumstances described above, which were beyond the Applicant's control.

293 The Applicant was clearly a conscientious, hardworking, and highly accomplished officer, for whom a continued unblemished record and reputation was extremely important. The Applicant was certainly relentless in his pursuit to be afforded the hearing and independent review, which he believed were available to him under his employee entitlements. In doing so, he sought and then followed the advice of senior officers and other senior personnel within many parts of the Respondent's administrative structure. When he refused to personally 'sign off' outstanding PDAs for a reason consistent with the concerns he had been raising since April 2016, he was subjected to the threat of disciplinary action, which was then eventually abandoned after he again explained his position. Indeed, there was no information contained in his written response dated 24 October 2018 which had not been previously provided on multiple occasions.

294 I am comfortably satisfied that the Applicant was victimised by the Respondent under s 104(1)(g) of the EO Act, in the context of his refusal to sign off his PDAs, because he had alleged discrimination, as described above, and that the alleged discrimination was a substantial reason for such victimisation.

295 Consequently, the Applicant suffered the following detriments:

1. The indignity and stress of threatened disciplinary action;
2. In relation to the Directions letter issued by then Sgt Dixon, the stress of having to wait over five months before being advised that he would not be facing disciplinary action; and

1. A delay in receiving the normal annual financial increments due to him, because of the delay in his PDAs being finalised.

296 The Tribunal, having found that the Respondent contravened Parts 4 and 7 of the EO Act, may make an order for compensation under s 125(a)(ii) to compensate the Applicant for loss, damage or injury suffered in consequence of the contravention.

297 An appropriate measure of compensation is one that is proportionate to the contravention and that promotes the objectives of the legislation in protecting individuals from discrimination on the grounds of the protected attribute. I am mindful that the measure of compensation should not be so low as to trivialise the contraventions, nor so high as to be disproportionate to the nature of the contraventions.

298 I may also approach the assessment of damages by attempting to compare the position in which the Applicant might have been expected to be if the discriminatory conduct and victimisation had not occurred, with the position in which he was placed due to the conduct of the Respondent.

299 The nature of the damages which the Tribunal has the power to award are entirely compensatory. The purpose of an award of damages under the EO Act is to attempt to measure, in monetary terms, the loss, damage and injury that has been suffered by the Applicant in consequence of the acts of discrimination and victimisation.

300 As indicated above, the evidence discloses that the Applicant has suffered significant hurt, humiliation and psychological stress, over a prolonged period, as a result of the Respondent's contraventions as well as the apprehension that his impeccable employment record has been unfairly damaged with the possible adverse impact upon his career prospects.

301 By way of example, he expressed his distress in emails to several members of WRD on 21 January 2019, extracted above, as follows:

It's affecting everything personally and professionally and I can't think properly whilst this continues to get covered up.

I can feel my work performance and in particular my correspondence suffering.

302 The Applicant also expressed that:[128]

This has destroyed my career and reputation and I consider my career to be effectively over with Victoria Police as a result of Senior Sergeant Denton's behaviour. This has taken a significant toll of having to try and prove the truth of what actually occurred which is proven by objective facts. If I had any doubt whatsoever I would have walked away almost four years ago.

303 The damages awarded under the EO Act have given rise to a very wide range, consistent with the factual differences. Accordingly, in this case I have given particular weight to the period over which the Applicant was denied his entitlements; the exacerbating circumstance of victimisation; the severe psychological impact upon the Applicant, which apparently caused him to seriously consider abandoning his career altogether; the delay to the normal financial increments; and the delay in being considered for promotion, at least while his PDAs were outstanding.

304 In my view, a fair amount to compensate the Applicant for his prolonged humiliation, stress, frustration and professional disappointment is the sum of $35,000.00.

305 Special damages are calculated by reference to the economic loss suffered by an applicant as a consequence of the unlawful conduct. In the employment context, special damages usually focus on lost wages (both past and future), as well as other employment benefits, where applicable.

306 Special damages can also cover other non-employment related financial loss, including past and future medical and like expenses related to physical or psychological injury consequent upon the contravening conduct.

307 In this case, the Applicant has not quantified or claimed any special damages, although he did suffer the opportunity cost of delayed payment of incremental annual payments.

308 The damages which may be awarded under s 125 of the EO Act may include a component for aggravated damages. Such an award, if appropriate, is not intended to represent punitive damages but are a part of compensatory damages, in the same way, at common law, that damages are 'awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like.'[129] There is no question that aggravated damages may be a component of the compensation awarded under the EO Act, having regard to the conduct of the contravening party.[130]

309 In my view, there are aggravating features to the Respondent's conduct which warrant an additional award under this head. The incident which gave rise to the Applicant's claims before the Tribunal was relatively simple and confined. The Applicant explained his account, in some detail, at the earliest opportunity and remained consistent throughout multiple accounts requested over the years. He also followed the advice of every senior officer and administrator and over the years and was repeatedly led to believe that his concerns were being addressed or reviewed. He became enmeshed in a bureaucratic nightmare where he was effectively sent around in endless circles. Yet at no stage was he offered the basic entitlement to be informed of the evidence relied upon to support the SDFD or the right to be heard.

310 Taking all of the above circumstances into account, in my view it is appropriate to award an additional modest sum of $5,000.00 on account of aggravated damages.

311 For the reasons given, the Tribunal finds that:

1. The Respondent contravened Part 4 of the EO Act in that it discriminated against the Applicant by treating him unfavourably because of his employment activity and subjected him to a detriment contrary to s 18(d) of the EO Act; and
2. The Respondent contravened Part 7 of the EO Act in that it victimised the Applicant by subjecting him to a detriment, because he engaged in conduct under s 104(1)(g) of the EO Act, and such conduct was a substantial reason for the victimisation.

312 The Tribunal will make orders under s 125 of the EO Act that the Respondent, pay to the Applicant an amount to compensate the Applicant for loss, damage and injury suffered in consequence of the Respondent's discrimination and victimisation in the sum of $40,000.00, comprising:

1. General damages for pain, suffering and emotional harm in the amount of $35,000.00; and
2. Aggravated damages, for the repeated nature of the Respondent's conduct over a prolonged period, in the amount of $5,000.00.

[1] Both the Professional Development and Assessments and Record of Complaints, Serious Incidents Database are described further below.

[2] (1938) 60 CLR 336 at 362 per Dixon J (emphasis added).

[3] Aitken & Ors v State of Victoria - Department of Education & Early Childhood Development [2012] VCAT 1547 [156] per Judge Ginnane referring to Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379; (2001) 108 FCR 1 [54] per Beaumont ACJ.

[4] POC [8]-[14]. The Respondent also makes certain admissions as to the Applicant's terms and conditions of employment in its Amended Particulars of Defence [6]-[13].

[6] POC [13]. Document 1, Tribunal Book (TB) 24. TB 272.

[10] Exhibit A, dated 7 June 2021, including attachments.

[13] Witness Statement dated 11 May 2021 including nine exhibits, TB 167-292; Exhibit 1.

[14] Witness Statement dated 11 May 2021 (McPherson Statement), TB 293-304; Exhibit 2. Director Recruitment Deployment & Workplace Relations, VicPol Ms McPherson's statement was prepared after examining the Applicant's file maintained by WRD.

[15] The Applicant referred to his POC [99]-[104].

[16] The following evidence has been compiled from the Applicant's Witness Statement; his letter dated 26 July 2016, being Exhibit BM-2 to the McPherson Statement; and the Applicant's oral evidence.

[17] The following dates and sequence of events have been drawn in part from: an email dated 6 September 2019 prepared by Insp Brendon McCrory, Conduct & Professional Standards Division PSC after review of the Applicant's file; the records identified in Ms McPherson's Statement; and the Applicant's evidence.

[18] TB 90, attached to Applicant's solicitor's letter dated 11 April 2019, addressed to Chief Commissioner of VicPol; and TB 238.

[19] Exhibit JD-3 to Insp Dixon's witness statement (Dixon Statement), PDA 1 March 2015-29 Feb 2016, TB 207.

[20] Gilmore v Victoria Police FOI Division [2018] VCAT 899 [8]-[9].

[22] [2018] VCAT 1320 (Marke's case) [98]-[99], [104]-[109], [137]-[143] and [167] per President Quigley J.

[23] Refer to the chronology of events and correspondence set out in the McPherson Statement [11]-[14].

[24] Reply from A/S Ian Radlow on 12 April 2016.

[25] POC Document 3, TB 30. Insp Zulian also indicated that he had notified the Stonnington Local Area Command (LAC) and S/I in relation to the matter.

[29] McPherson Statement [12], [15]-[17], TB 294; Exhibit BM-2. On 23 May 2016, A/SS Peter Burton advised the Applicant to refer the file to the attention of Workplace Harm; on 24 June 2016, Ms Lauren Burn, of the Organisational Standards and Behaviours Branch, advised the Applicant to contact EPSO and request a review of the investigation; on 29 July 2016, the Applicant wrote to the EPSO lodging a complaint investigation file, raising the same issues of concern.

[31] 11 August 2016, POC Document 18, TB 135 and 461 (extracted from email of Insp McCrory to Mr Luke Rose (WRD) dated 6 September 2019).

[33] Some of this correspondence was not produced but is listed with extracts in the summary given by Insp Brendon McCory in his email to Luke Rose dated 6 September 2019, TB 460-462.

[36] This letter was not produced but is listed with extracts in the summary given by Insp Brendon McCory in his email to Luke Rose dated 6 September 2019, TB 461.

[39] McPherson Statement [21]-[24]. TB 323-325.

[41] Ms Elisse Spiteri (OL/WH); Ms Julie Jardine; Ms Vanessa Clark; Ms Jo Begbie (Director, Performance and Development Human Resource Department); and Ms Santucci: McPherson Statement [21] and Exhibit BM-6.

[42] McPherson Statement [26]-[74].

[45] Exhibit BM-11, TB 343-344. On the same date, Ms Michelle Spencer HR Business Partner, Human Resources Department VicPol, commenced working on the Applicant's file: Exhibit BM-12, TB 345.

[46] TB 461; including in an email dated 6 September 2019 from Insp McCrory PCU to Luke Rose and Andrew Falconer.

[47] Exhibits BM-13, BM-14 & BM-15; Ms Spencer confirmed that 'I have been working on this file since 21 January [2019] when it was handed to me by Workplace Relations'; POC Document 10, TB 56-58, email dated 29 March 2019.

[49] POC Document 10, TB 56-58, email dated 29 March 2019.

[50] Exhibit BM-16. POC Document 14 TB 88.

[51] Email dated 12 April 2019; POC Document 15, TB 129.

[52] Email dated 15 April 2019; POC Document 16, TB 130.

[53] Exhibit BM-17; and POC Document 16, TB 130.

[54] Applicant's submissions [77] TB 19.

[55] On 17 April 2019, Ms Begbie acknowledged receipt of his complaint. Exhibit BM-19, TB 407. POC Document 17.

[59] The Applicant emailed Mr Luke Rose, Mr Mike Taylor, Ms Fenner, Ms Begbie and Ms Gabrielle Reilley attaching a response to Ms Fenner's letter; Exhibit BM-22. TB 413-420. On 10 July 2019, the Applicant sent two emails to Mr Luke Rose, Ms Brigitte Santucci and Mr Mike Taylor requesting an update on his matter.

[60] Exhibit BM-25. TB 424; email dated on 18 July 2019,

[65] Exhibit BM-29. TB 431-432; email dated 3 September 2019.

[66] Exhibit BM-29. TB 431; email dated 3 September 2019.

[71] Exhibit BM-31. TB 438-439; Exhibit BM-33. TB 443; Exhibit BM-34. TB 451.

[78] TB 458. As previously made in VicPol's response to the Applicant's lawyers dated 20 May 2019.

[80] POC Document 12, TB 67-68, email dated 29 October 2019.

[81] POC Document 11, TB 69, email dated 22 October 2019.

[82] Dixon Statement Exhibit JD-3, TB 207.

[86] POC Document 6, TB 35: Applicant's PDA entry 29 January 2017.

[87] TB 224-225, entry made by the Applicant on 14 September 2018; and TB 227, entry made by the Applicant on 15 October 2019.

[89] Ibid [53] and [55] and confirmed in oral evidence.

[92] Dixon Statement [64]-[72] and confirmed in oral evidence.

[95] Dixon Statement Exhibit JD-6, TB 239.

[96] McPherson Statement [23] and Exhibit BM-7.

[97] TB 262, refer to Applicant's comment.

[101] By reason of the approval of the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 (the 2019 Enterprise Agreement), Clause 64.13 of the 2019 Enterprise Agreement: Dixon Statement Exhibit JD-8, TB 274.

[104] The Applicant gave evidence of the stress associated with the decision 'hanging over his head' for about five months.

[105] This evidence possibly constitutes a protected disclosure.

[107] Ms Spencer's summary of the Applicant's complaint file dated 29 March 2019 also suggested such lack of delegation.

[109] Section 167(1), (2) and (3). Subsection 167(3A) provides that such complaint is not required to be made where the police officer has reason to believe that the conduct contravenes Part 4, 5 or 7 of the EO Act.

[110] Dixon Statement Exhibit JD-2: clauses 1.3, 1.4 and 1.5 (set out above).

[111] Dixon Statement Exhibit JD-2: clause 2.6 (set out above).

[112] Section 167(1), (2) and (3). Subsection 167(3A) provides that such complaint is not required to be made where the police officer has reason to believe that the conduct contravenes Part 4, 5 or 7 of the EO Act.

[113] All of these responses have been cited above.

[114] The Applicant said he was told that time ran from the date of the relevant event, not the date of entry. In either case, he was out of time.

[118] Letters dated 1 & 11 September 2016 from IBAC to S/I de Ridder PSC, referred to in the email summary of Insp McCory, TB 460-462.

[120] Email dated 30 November 2018 from Ms Spiteri.

[121] Exchange of emails with Ms Spiteri from OL/WH, Exhibit BM-6; email dated 6 December 2018 from Ms Jardine of OL/WH; emails dated 19 & 21 December 2018 from Ms Santucci; emails dated 18 & 25 February and 10 April 2019 from Ms Spencer; emails dated 26 April and 7 May 2019 from Ms Begbie; emails dated 31 October and 22 November 2019 from Mr Rose; emails dated 25 November and 16 December 2019 from Ms Ilievski.

[122] Email response of S/I Kent dated 11 August 2016, TB 135; email dated 30 November 2018 from Ms Spiteri; email dated 14 December 2018 from Ms Clark of OL/WH.

[123] Letter dated 9 August 2019 from Ms Fenner; email dated 3 September 2019 from Mr Taylor WRD; email dated 14 October 2019 from Mr Rose; email dated 2 December 2019 from Ms Ilievski.

[124] Letter dated 15 December 2016 from A/Ass Commissioner Kent, referred to in the email summary of Insp McCory, TB 461; email response of Sgt Radlow (on behalf of S/I de Ridder dated 11 October 2016, TB 136; email response of A/SS Gates dated 21 June 2017, Exhibit BM-5; email dated 15 April 2019 from Ms Spencer; letter dated 20 May 2019 from Ms Fenner WRD; Letter dated 9 August 2019 from Ms Fenner; letter dated 24 December 2019 from Ms Baker.

[127] TB 225, entry made by the Applicant on 14 September 2018; and TB 227, entry made by the Applicant on 15 October 2018.

[128] TB 267, part of the Applicant's response to the Directions letter.

[129] Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1, 8; Myer Stores Ltd v Soo [1991] VicRp 97; [1991] 2 VR 597.

[130] See Hall v Sheiban [1989] FCA 72; (1988-89) 85 ALR 503 (Full Court); De Simone v Bevacqua (1994) 7 VAR 246, 269 (McDonald J); Spencer v Dowling [1996] VSC 51, p 144-145; Coyne v P & O Ports [2000] VCAT 657 (31 March 2000), p 34-35; Ewin v Vergara (No 3) [2013] FCA 1311 [676].