Grant v Commissioner of Police

1. These proceedings were commenced by an Application filed on 8 July 2024. With the leave of the Commission an Amended Application was filed on 7 August 2024. The Amended Application alleged numerous other instances of victimisation, in additional to the Findings. On 26 August 2024 the Respondent filed a Notice of Motion seeking to have the Amended Application dismissed, both summarily, and because large parts were alleged to be out of time. On 1 October 2024, prior to the hearing of the Notice of Motion, the Applicant's solicitors filed a Notice of Ceasing to Act. When the Motion was heard, the Applicant was unrepresented, and he has continued to be unrepresented.
2. On 10 January 2025 I struck out the Amended Application, but granted the Applicant leave to file a further amended application seeking relief only in respect of the Findings (and the consequential recording and reporting of them), being a possible detriment within the meaning of s 210 which had occurred within 21 days of the commencement of proceedings, as required by s 213(3): Grant v Commissioner of Police [2025] NSWIRComm 1000; 337 IR 419.
3. The Applicant filed a Further Amended Application (FAA) on 10 February 2025.
4. The FAA, consistent with the grant of leave, asserted that the Findings and the recording and reporting of them, constituted victimisation arising from:

(1) complaints the Applicant made about the fact that his duties were significantly altered and increased without sufficient consultation and without a change to his classification (Changing Duties Complaints), which is said to have enlivened s 210(1)(f) of the IR Act: FAA [7], [25];

(2) the provision by the Applicant to his manager, Mr Paul Drexler, with a copy of award provisions relating to the taking of leave and requesting they be complied with (Award Compliance Request), which is said to have enlivened s 210(1)(f) of the IR Act: FAA [10(a)], [27];

(3) complaints the Applicant made on 19 February 2024, in the meeting with Mr Drexler about directions to perform work outside the scope of his substantive role being unlawful (February Duties Complaints), which is said to have enlivened s 210(1)(f) of the IR Act: FAA [17(b)(ii)], [27];

(4) complaints the Applicant made about workplace matters that he considered were unsafe or posed a risk to his health, which is said to have enlivened s 210(1)(j) of the IR Act: FAA [28], namely:

(a) between June 2023 and February 2024, he made various unparticularised complaints about a range of matters (2023 Complaints): FAA [11A];

(b) on 5 February 2024, in a request for leave from work, he complained about a toxic work environment with a bullying and targeting culture from management (First February Work Health and Safety Complaint): FAA [13];

(c) on 19 February 2024, he sent an email to Chief Inspector Rodney Ormes asserting he had been targeted and bullied, and that a job description given to him in his meeting with Mr Drexler earlier that day was "against HR legislation" (First 19 February Email Complaints): FAA [17A];

(d) on 19 February 2024, he sent an email to Chief Inspector Ormes and Mr Drexler, asserting his employment conditions had been "breached" and complaining that he had been bullied, targeted, threatened and discriminated against (Second 19 February Email Complaints): FAA [17B];

(e) on 19 February 2024, he sent an email to Chief Inspector Ormes asserting a failure to comply with "HR legislation" and claiming victimisation (Third 19 February Email Complaints): FAA [17C]; and

(5) the section 210 Complaint, which is said to have enlivened s 210(1)(f) of the IR Act: FAA [19], [13].

1. In his Outline of Submissions filed on 17 March 2025 (AS) the Applicant asserted that, in addition to the imposition of the Findings and the recording and reporting of them, he had also been victimised by reason of the "an ongoing course of conduct" which included the making of the allegations in the Allegations Letter and the imposition of the Findings. That the making of the allegations had itself constituted an act of victimisation had been part of the Applicant's original claim that was out of time and had been struck out: Grant v Commissioner of Police at [89], [121], [138]. Similarly, at [4.7] - [4.9] of the AS the Applicant referred to alleged earlier acts of victimisation that had been struck out. In his Outline of Submissions in Response to Respondent's Evidence filed on 11 April 2025 (ARS), the Applicant asserted that the failure of the Respondent to "scrutinise the actions of senior NSW Police Force personnel involved in the meeting held on 19 February 2024, where the Applicant was presented with a falsified role description document and pressured to accept vast changes to his employment" was also "a form of detriment as contemplated under s 210 of the Industrial Relations Act 1996 (NSW)". He also asserted that the conduct of Mr Drexler and Mr Austin, "specially, the presentation of false documents, coercive demands, and failure to support the Applicant" constituted "a detriment under the IRC framework and contributes to a toxic and unlawful employment environment." These are not claims made in the FAA.
2. The only claim before the Commission is the claim that the Respondent victimised the Applicant by making the Findings and the recording and reporting of them and consequently that is the only claim I have determined.

1. On 3 July 2025, after the hearing of this matter on 30 April 2025, ss 210 and 213 were amended pursuant to the Industrial Relations and Other Legislation Amendment (Workplace Protections) Act 2025.
2. Prior to 3 July 2025 those sections read as follows:

210 Freedom from victimisation

(1) An employer or industrial organisation must not victimise an employee or prospective employee because the person -

(a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or

(b) does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or

(c) refuses to engage in industrial action, or

(d) exercises functions conferred under this Act, or

(e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or

(f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or

(g) participates, or proposes to participate, in proceedings relating to an industrial matter, or

(h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or

(i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or

(ia) informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety National Law (NSW), or

(ib) reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator (within the meaning of the Transport Administration Act 1988) or a person employed in the Transport Service, or

(ic) informs any person or body of, or gives evidence in relation to, a breach or alleged breach of the Dangerous Goods (Road and Rail Transport) Act 2008 or the regulations under that Act (or a provision of a law of another State or Territory that corresponds to that Act or those regulations), or

(j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011, or

(k) assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995.

(2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action.

...

213 Enforcement

(1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part.

(2) The Commission may, in particular, for that purpose do any one or more of the following -

(a) order the reinstatement or re-employment of an employee,

(b) order the employer to promote or otherwise advance an employee in his or her employment,

(c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone,

(d) order the employer to employ a prospective employee,

(e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat,

(f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity,

(g) make consequential orders (including orders concerning continuity of service).

(3) An application for an order under this section must be made within 21 days after the contravention concerned.

(4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to -

(a) the reason for, and the length of, the delay in making the application, and

(b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and

(c) the conduct in relation to which the order is sought.

210 Freedom from victimisation

(1) An employer or industrial organisation must not victimise an employee or prospective employee because the person -

(a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or

(b) does not belong to an industrial organisation of employees or holds a certificate of conscientious objection to becoming a member of an industrial organisation of employees, or

(c) engages or proposes to engage in industrial organising activities, or

(d) refuses to engage in industrial action or another industrial organising activity, or

(e) participates or proposes to participate in proceedings relating to an industrial matter, or

(f) exercises or proposes to exercise functions conferred under this Act, or

(g) has a role or responsibility under industrial relations legislation or an industrial instrument, or

(h) engages in or proposes to engage in a public or political activity, unless it interferes with the performance of the employee's duties, or

(i) is entitled to a benefit or claims a benefit to which the person is entitled under industrial relations legislation or an industrial instrument, or

(j) is entitled to a benefit or claims a benefit -

(A) the Workers Compensation Act 1987,

(B) the Workplace Injury Management and Workers Compensation Act 1998, or

(ii) in relation to other entitlements for a workplace injury, or

(k) has a characteristic protected from discrimination under the Anti-Discrimination Act 1977, or

(l) makes a complaint or inquiry -

(i) about the person's employment, or

(ii) to a public authority about the person's employer, including about matters other than about the person's employment, or

(m) makes a complaint about a workplace matter that the person considers is not safe or a risk to health or exercises functions under the Work Health and Safety Act 2011, Part 5, or

(n) informs a person of an alleged breach by an employer of industrial relations legislation or of an industrial instrument, or

(o) informs a person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or

(p) informs a person of or gives evidence in relation to a notifiable occurrence within the meaning of the Rail Safety National Law (NSW), or

(q) informs a person of or gives evidence in relation to a breach or alleged breach of the Dangerous Goods (Road and Rail Transport) Act 2008 or the regulations under that Act, or a provision of a law of another State or Territory that corresponds to that Act or those regulations, or

(r) reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator, within the meaning of the Transport Administration Act 1988, or a person employed in the Transport Service, or

(s) assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995.

(2) The matters referred to in subsection (1)(m)-(s) do not limit the kind of complaint or inquiry referred to in subsection (1)(l).

(3) Subsection (1)(j) does not apply to matters concerning the dismissal of an employee to which the Workers Compensation Act 1987, Part 8 applies.

...

213 Enforcement

(1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part.

(2) The Commission may, in particular, for that purpose do any one or more of the following -

(a) order the reinstatement or re-employment of an employee,

(b) order the employer to promote or otherwise advance an employee in his or her employment,

(c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone,

(d) order the employer to employ a prospective employee,

(e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat,

(f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity,

(g) make consequential orders (including orders concerning continuity of service).

(3) An application for an order under this section must be made within 21 days after the contravention concerned.

(4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to -

(a) the reason for, and the length of, the delay in making the application, and

(b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and

(c) the conduct in relation to which the order is sought.

(5) In proceedings under this section to enforce the provisions of section 210 -

(a) it is presumed that an employee or prospective employee who suffers a detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in section 210 alleged by the applicant to be the cause of the detrimental action, and

(b) the presumption is rebutted if the employer or industrial organisation satisfies the Commission that, objectively, the alleged matter was not a substantial and operative cause of the detrimental action, and

(c) for paragraph (b), the Commission may have regard to conscious and unconscious factors for the alleged matter when determining if the alleged matter was not a substantial and operative cause of the detrimental action.

1. In summary, the amendments proscribe additional matters for which an employee or prospective employee must not be victimised by an employer or industrial organisation; and alter the nature of the reverse onus of proof for employers or industrial organisations that are alleged to have engaged in victimisation. The amendments take effect from 3 July 2025; however they do not apply to the present proceeding for the following reasons.
2. First, the following transitional provision applies with respect to the amendment to the reverse onus of proof:

Onus of proof for victimisation

For proceedings under section 213 in relation to section 210 that commenced before the commencement of the amending Act, Schedule 1[16] -

(a) section 210(2) as in force immediately before the commencement continues to apply, and

(b) section 213(5) does not apply.[2]

1. Consequently, in the present proceeding, the reverse onus of proof provided for in s 210(2) of the IR Act immediately before 3 July 2025 continues to apply, rather than the revised reverse onus of proof provided for in s 213(5).
2. Section 210(2) prior to 3 July 2025, sets up a rebuttable presumption that if an employee has suffered a detriment as a result of action by the employer or industrial organisation, it will have been suffered due to one of the prohibited reasons set out in s 210(1). However, it has been held that it is incumbent upon the employee to first identify and establish the existence of a protected matter in s 210(1) and allege that the detriment was suffered because of the protected matter referred to in s 210(1), before the onus will shift to the employer to prove that the protected matter was not a substantial and operative cause of the detrimental action: Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 at [43] (Wright J, P, Walton J, VP, and Ritchie C), cited with approval in Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064 at [62] (Chief Commissioner Constant), [84]; and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (obo Saraceno) v Commissioner of Police [2024] NSWIRComm 1001 (Saraceno) at [30] - [31] (McDonald C), upheld on appeal in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Commissioner of Police, New South Wales Police Force [2024] NSWIRComm 1062 at [39] - [40] (Senior Commissioner Constant, Webster and Muir CC) and on judicial review in PSA v Commissioner of Police [2025] NSWSC 624 (McHugh JA).
3. In PSA v Commissioner of Police Mc Hugh JA suggested, at [44], that:

"... it may not strictly be necessary for the applicant to "establish" the existence of a protected matter before the presumption is engaged; it is at least arguably sufficient that "a matter referred to in subsection (1) ... is alleged by the applicant to be the cause of the detrimental action.""

1. His Honour did not have to decide whether it was incumbent on an applicant to "establish" the existence of a protected matter before the presumption is engaged and therefore the view of at least two Full Benches remains the correct approach. In any event, the Respondent in the present case concedes that the Award Compliance Request, the First February Work Health and Safety Complaint and each of the First, Second and Third February Email Complaints were established, and enlivened s 210(1)(j) of the IR Act and that the Section 210 Complaint was established, and enlivened s 210(f) of the IR Act.
2. The second reason why the amendments to ss 210 and 213 do not affect this proceeding is because the amendments are not expressed to operate retrospectively. It is a longstanding presumption that legislation does not have a retrospective operation if not expressed to have such an operation: Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267 per Dixon CJ; [1957] HCA 7; Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188 at 194 per Fullagar J; [1960] HCA 80. While from 3 July 2025, s 210 specifies more protected matters, those matters were not protected prior to 3 July 2025. Consequently, if an employee suffered a detriment as a result of action taken by the employer prior to 3 July 2025, the substantial and operative cause of which was because of a new protected matter referred to in s 210(1), regardless of when that new protected matter arose, the employee will not be entitled to relief. However, if the existence of the new protected matter arose prior to 3 July 2025, but the detrimental actions of the employer, that is, the act of victimisation occurred after 3 July 2025, the employee would, prima facie, be entitled to relief.
3. In the present case the Applicant alleges he suffered a detriment, in the form of the Findings and the associated recording and reporting of them, prior to 3 July 2025, by reason of the protected matters proscribed in s 210(1)(f) (now embodied in s 210(1)(n)) and s 210(1)(j) (now embodied in s 210(1)(m). The Applicant's rights under ss 210 and 213 (if any) and conversely the Respondent's liability under those provisions (if any), vested or accrued prior to 3 July 2025, such that they are unaffected by the amendments to the IR Act: Maxwell v Murphy. This is confirmed by s 30 of the Interpretation Act 1987.

1. I remarked at [3] above that a dispute about the nature of the Applicant's role within the Police Force gave rise to the events that have led to this proceeding. That is because it was that dispute that was being discussed at the meeting of 19 February 2024, along with certain of the Applicant's employment conditions, during which the Applicant engaged in conduct which Superintendent Driver found to constitute misconduct. However, as I stated in my decision striking out the Amended Application (at [9]), "even if [the Applicant's] claim is successful, no relief can be granted by the Commission in this proceeding which would resolve his underlying complaint regarding his role description".
2. Despite this caution, it was clear from the Applicant's oral submissions, his evidence and his cross examination of Superintendent Driver, that he considered that:

"The key issues for determination are whether my substantive role was materially changed to my detriment without lawful basis, whether the investigation conducted by Assistant Commissioner Driver was procedurally unfair and incomplete and whether there was a failure to investigate serious allegations of misconduct by senior officers while unfairly making findings against me."[3]

1. Whether the Respondent materially changed the Applicant's substantive role "without lawful basis" is not a matter that arises for consideration at all in this proceeding. The other two matters identified by the Applicant as key issues for determination only arise to the extent that, if established, they may indicate that a substantial and operative cause of the Respondent, via her delegate Superintendent Driver, taking detrimental action against the Applicant, namely the making of the Findings and the recording and reporting of them, was because of a matter referred to in s 210(1), rather than a genuine and conscientious view held by the Respondent's delegate that the Applicant had in fact engaged in misconduct. As is explained in the following paragraph, whether the investigation or inquiry into the Applicant's conduct was unfair or even, whether the Findings themselves were unfair or indeed, wrong, is not the focus of my inquiry. What I have to do is conduct a factual inquiry into the substantial and operative reasons for the making of the Findings and determine whether those substantial and operative reasons were the matters referred to in s 210(1), specifically the matters referred to in s 210(1)(f) and (j).
2. I outlined the principled approach to determining a victimisation claim (in respect of claims commenced prior to 3 July 2025) in Saraceno at [28] - [51]. My remarks at [32], [41], [43], [44], [45], [49] and [50] are worth repeating:

"32. I consider that the summary provided by Wigney J in Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046; 69 AILR 102-860 at [297] - [303] in respect of the approach the Court will take when determining whether there has been a contravention of s 340 of the Fair Work Act 2009 (Cth) (FWA) (which prevents the taking of 'adverse action' against an employee for a prohibited reason and is similar to s 210 of the IR Act) to be a very helpful guide as to the principled approach to be taken when determining whether there has a been a contravention of s 210. Like s 210(2), s 361 of the FWA, creates a statutory presumption where it is alleged that a person has taken adverse action against another person for a prohibited reason, to the effect that it will be presumed that the action was taken for that reason, unless the person proves otherwise. His Honour set out the key principles for determining whether there has been a contravention of s 340, by reference to the decisions of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 and C_onstruction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd_ [2014] HCA 41; 253 CLR 243:

297. First, the question is one of fact: Barclay at [41], [45], [101]; BHP at [7].

298. Second, the question is why the adverse action was taken: Barclay at [5], [44]. The focus of the inquiry is the reason or reasons of the relevant decision-maker: Barclay at [101], [127], [140], [146]; BHP Coal at [7], [19], [85]. More particularly, the question is whether the alleged prohibited reason was a "substantial and operative" reason for taking the adverse action: Barclay at [56]-[59], [104], [127]; or an operative or immediate reason: Barclay at [140].

299. Third, the test does not involve any objective element: Barclay at [107], [121], [129]; BHP Coal at [9]. To speak of objectively obtained reasons risks the substitution by the court of its view, rather than making a finding of fact as to the true reasons of the decision-maker: Barclay at [121]; BHP Coal at [9].

300. Fourth, the inquiry is not concerned with mere causation, in the sense that it is not sufficient that there is factual or temporal connection between the relevant protected workplace rights and the adverse action: BHP Coal at [18]-[20]. Any such connection, however, may necessitate some consideration as to the true motivation or reasons of the decision-maker: BHP Coal at [22].

301. Fifth, the question must be answered having regard to all of the relevant facts and circumstances and the inferences available from them: Barclay at [45], [127]; BHP Coal at [7].

302. Sixth, direct testimony from the decision-maker as to why the adverse action was taken is capable of discharging the burden imposed by s 361: Barclay at [45], [71]; BHP Coal at [38]. However, declarations that the action was taken for an innocent reason may not discharge the onus if contrary inferences are available on the facts: Barclay at [54], [79], [141]. The reliability and weight to be given to such evidence must be assessed having regard to the overall facts and circumstances: Barclay at [127].

303. Seventh, it is not necessary for the decision-maker to establish that the reason for the adverse action was entirely disassociated from the relevant protected workplace right: Barclay at [62].

...

41. The third principle [identified by Wigney J in Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2)] is that the test for determining whether adverse or detrimental action was taken for a prohibited reason "does not involve any objective element" and that to "speak of objectively obtained reasons risks the substitution by the court of its view, rather than making a finding of fact as to the true reasons of the decision-maker." In other words, even if there are facts which 'objectively' indicate that the employee has been victimised, victimisation will not be established if those objective facts did not found the actual reason why detrimental action was taken against the complainant. The High Court in Barclay expressly rejected an approach whereby a Court is to make its own assessment, by examining objectively ascertainable facts, as to what it considers was the 'real reason' for the person's conduct, and determines the case on that basis, regardless of the uncontroverted evidence of what the person who caused the detrimental action actually thought.

...

43. In other words, the role of the Commission in an application made pursuant to s 213 of the IR Act is to ascertain the reasoning actually employed by the relevant decision maker, regardless whether that reasoning be right or wrong, and to then assess whether the reason was a prohibited reason as proscribed in s 210. Thus, in Police Association of New South Wales (obo Tomlinson) v Commissioner of Police [2023] NSWIRComm 1053, Commissioner Sloan at [79] explained (albeit in the context of assessing the prospects of success of an application to bring a s 213 claim out of time):

"Snr Cst Tomlinson may well have reasons to feel aggrieved at the finding of misconduct in respect of the Overtime Claim. The Investigation Report set out the grounds on which Snr Cst Tomlinson should be regarded as having had a meal break or to having "abandoned" his entitlement to such a break. Those parts of the Investigation Report give rise to concern, although I make no determination that they are necessarily wrong. However, it is not sufficient in proceedings under s 213 to assert that an erroneous decision was made. The Association was required to demonstrate that there was a prima facie case that Snr Cst Tomlinson was victimised because he claimed a benefit to which he was entitled under the award. It did not do so."

44. That is not to say however, that in all cases the correctness of the reasoning will be irrelevant. The sixth principle identified by his Honour Justice Wigney is that direct testimony from the decision-maker as to why the adverse action was taken is capable of discharging the reverse onus, "[h]owever, declarations that the action was taken for an innocent reason may not discharge the onus if contrary inferences are available on the facts." The observations of French CJ and Crennan J in Barclay at [45] are particularly helpful in understanding the correct approach:

"This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. [See, eg, General Motors-Holden's Pty Ltd v Bowling (1976) 136 CLR 676 (note) ...] Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker [See, eg, Pearce v WD Peacock & Co Ltd [1917] HCA 28; (1917) 23 CLR 199 at 208 per Isaacs J; at 211 per Higgins J.] or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. [See, eg, Harrison v P & T Tube Mills Pty Ltd [2009] FCAFC 102; (2009) 188 IR 270 at 276 [31]- [33].]"

45. It is conceivable that evidence might be led to which so seriously undermines the correctness or the soundness of the decision-maker's belief that the Commission could be entitled to conclude that the belief was not, in fact, genuinely held. However, whether the Commission would be entitled to reach such a conclusion will depend on an assessment of all the evidence in a given case, including the decision-maker's response when confronted with the contrary evidence.

...

49. The authorities make it clear that it is important to draw a distinction between a circumstance where the person performing the detrimental action acts on advice or information given by another, without bringing to bear their own independent judgment to the task; and a circumstance where the person performing the detrimental action acts on advice or information given by another but conducts their own assessment and forms their own independent view, of the information and advice. In the first circumstance, the state of mind of the person providing the advice or information will be relevant and must not include a prohibited reason, as any prohibited reason will be regarded as having infected the ultimate decision even if the ultimate decision marker was unaware of it; in the second circumstance, the state of mind of the 'informer' will usually not be relevant, as the information or advice given to the decision maker did not materially affect the ultimate decision, although each case will turn on its own facts.

50. The above discussion highlights the importance of first establishing that the employee has suffered a detriment as alleged and then, who was responsible "for performing the act constituting the [detrimental action]". Once that is established, an inquiry can then made into the actuating reasons of the person or persons responsible for the action. If only one person was responsible for performing the act constituting the detrimental action, it will nevertheless be important to establish whether their decision to take the detrimental action was materially affected by the input of others and if so, the motivations of those others. If there were multiple decision makers, each of their motivations must be examined. ..."

1. In the present matter, if the Applicant meets the threshold for the onus to shift to the Respondent, what the Respondent must establish, on the balance of probabilities, is that the protected attributes possessed by the Applicant (some of which the Respondent admits the Applicant had), played no substantial or operative part in her delegates' decisions to take detrimental action again the Applicant.
2. While the Respondent conceded the existence of six protected matters, she says (for reasons I will discuss later):

(1) the Changing Duties Complaints are not established and do not enliven s 210(1)(f);

(2) the February Duties Complaints are not established do not enliven s 210(1)(f); and

(3) the 2023 Complaints are not established and do not enliven s 210(1)(j).

1. In the Respondent's Outline of Submissions filed on 4 April 2025 (RS) at [14], the Respondent accurately identified the following questions for determination in the proceedings (which I have adjusted slightly):

(1) Do the Findings (and corollary matters, including the decision to take no further action and the recording of the Findings on IAPro and the reporting of them to the LECC) amount to a detriment within the meaning of s 210(2) of the IR Act?

(2) Do any or all of the Changing Duties Complaints, February Duties Complaints or 2023 Complaints enliven either s 210(1)(f) or (1)(j) of the IR Act?

(3) Has the Respondent met her onus of establishing that none of the proscribed factors conceded by her, or otherwise found to exist, were a substantial and operative cause of the Respondent making the Findings?

1. The Respondent submitted that the first question should be answered in the negative, in which case, the Commission need not analyse the matter further but would dismiss the Application. However, for the reasons I will develop below I consider the first question should be answered in the affirmative.
2. The Respondent submitted, in the alternative, that, regardless of the Commission's conclusion as to the second question above, the Commission will be satisfied that there was no proscribed factor bearing on the Respondent's decision to make the Findings. For the reasons set out below I agree with this submission.

1. As pleaded in paragraph [22] of the FAA and as conceded by the Respondent[4], the alleged detrimental conduct encompass not only the Findings, that is, the substantiation of the allegations as set out in the Allegations Letter and the finding of misconduct, but also that the finding of misconduct was recorded (on AIPro) and that the LECC had been notified, the second two actions being mandated by legislation following a finding of misconduct. No other sanction was imposed.
2. To assist with context, it is helpful if I set out the allegations as made in the Allegations Letter:

"Allegation

It is alleged that you behaved unreasonably and unprofessionally towards your Director, Mr Paul Drexler.

Allegation details:

On 19 February 2024 during a scheduled face to face meeting at Technology Command, where your roles and responsibilities, working hours and Working from Home (WFH) entitlements were to be discussed, you engaged in unreasonable and unprofessional behaviour towards Paul Drexler. Specifically:

• You approached the meeting in an argumentative, agitated and threatening state;

• You confronted Paul Drexler in an aggressive way, shifting the tone of your voice to increase aggression, changing your posture while leaning toward Paul Drexler and yelling;

• You constantly interrupted discussions and suggested that comments made by Paul Drexler were 'lies' or 'bullshit';

• Despite several requests to allow others to speak, you continued to raise your voice and talk over the top of others;

• You referred to Paul Drexler as ' incompetent', threatening to 'take this further' and inferred that the police were conspiring against you to have you perform duties that you claimed are 'illegal';

• You refused to listen to a direction given to you by Paul Drexler, claiming multiple times that the duties that you were being asked to perform were 'lies ' or 'illegal ';

• You claim that NSW Police Force had ignored numerous emails and other correspondence you had provided to them in relation to your refusal to perform duties requested of you by Paul Drexler;

• You inferred the Commander, Technology Command had ignored your claim that you were being bullied and harassed;

• You continued to use inappropriate language and ignored repeated request to wait until others finish talking;

• When Chief Inspector Toby Austin requested you lower your tone and adopt respectful conduct you became even more agitated and aggressive."

1. The allegations were based upon accounts of the meeting provided in the emails sent by Mr Drexler and Chief Inspector Austin on 19 February 2024 to Mr Ormes; a further email sent by Mr Drexler to Mr Ormes dated 21 February 2025 in response to inquiries made by the AOCU about the meeting; and an unsigned statement provided to the AOCU by Mr Michael Gulliver, who had been asked by the Applicant to join the meeting as a support person, partway into the meeting. Mr Gulliver's account lends some support to the accounts provided by Mr Drexler and Chief Inspector Austin, although the tone of his account gives a general impression that the Applicant's conduct had not been as aggressive and threatening as conveyed by Mr Drexler and Chief Inspector Austin and indicated that Mr Drexler and/or Chief Inspector Austin had also raised their voices and argued with Mr Grant. In particular, Mr Gulliver's account includes the following:

"When I arrived at the meeting, the meeting had already been underway for some time, I am unsure of how long it had been in progress before my arrival. Upon arrival I could sense that there was already some frustration and disagreement between both parties.

...

At some stage during this discussion Mr Grant did raise his voice in frustration at the situation. Mr Grant is a loud person in general.

The discussion was going in circles and not getting any closer to a resolution. I believe Mr Grant advised Mr Austin and Mr Drexler that he would be getting legal advice surrounding his situation. Either Mr Drexler or Mr Austin responded and said you can do whatever you like Leighton. If that's the direction you want to take, then you can.

When voices were raises, I interjected to try and resolve the situation and just tried to reword the situation and said something to the effect of "Listen Gentlemen, This discussion is going nowhere at the moment, I think what Mr Grant is trying to say is he feels like he is being held to ransom with his working conditions and will only get them back if he signs over that he agrees with what he is being presented."

...

There was then some discussions around Mr Grants conduct, I don't remember the exact topic, when Mr Grant disagreed and raised his voice and said something to the effect of "you can go to any other department in the building (PHQ) and people are swearing and other things and no one says a word" I believe there was some offensive language (swearing) used here by Mr Grant to describe what goes on in other departments. The language was not directed at anyone in particular, it was being used to explain what happens in other departments within the NSW Police Force."

1. The only direct evidence the Applicant gave about the 19 February meeting was paragraph [21] of his statement of 1 October 2024:

"On 19 February 2024, I attended the meeting, I said words to the effect of:

"The proposed change to my role are against HR legislation."

AND

"The duties are illegal""

1. Some additional, albeit also hearsay evidence, was led as to what occurred during the 19 February meeting in the form of the MB Response. The MB Response included the following:

"(a) Our client denies "approaching the meeting in an argumentative, agitated and threatening state" and/or engaging with Mr Drexler in a way that was "aggressive". Our client was significantly distressed and stressed before and during the 19 February Meeting, including for the reasons set out at paragraph 15 above [essentially, earlier complaints made to Mr Drexler].

(b) Our client was not offered the opportunity to have a support person in the meeting, and stopped the meeting early to request and obtain a support person, in an attempt to ensure the meeting progressed in a professional manner.

(c) Our client made repeated complaints about the statements made by Mr Drexler in the 19 February Meeting, included statements he considered to be misleading or incorrect. Our client is entitled to make complaints and inquiries about his employment, and doing so does not constitute unreasonable and unprofessional conduct.

(d) Our client did not use inappropriate language in a manner that was directed at Mr Drexler or Mr Austin, and notes that the use of swearing is a commonplace and accepted part of the culture in NSW Police." (Emphasis in original.)

1. As the MB Response implies, the Applicant does not dispute that he swore during the meeting but says that the did not direct his swearing at Mr Drexler or Chief Inspector Austin. As previously noted, the Applicant conceded in the MB Response that he was "distressed and stressed" before and during the meeting.
2. The Findings of Superintendent Driver were recorded in an 'issues paper', also referred to as a 'Godfrey Report' which had been prepared by Ms Louise Gillett, Case Manager within the AOCU. I discuss this document further below. For present purposes I note that the end of the document contained the following paragraph written by Superintendent Driver, under which was his signature, name and position and the date of 14 June 2025:

"I have read this report and all related material, particularly the employee statement in response to the allegation details, prepared by Maurice Blackburn Lawyers. I am satisfied the employee has behaved unprofessionally, notwithstanding the circumstances he references in his response, and I have decided to proceed, without further inquiry, with this matter. I make a finding of misconduct by the relevant employee. Taking into account all of the circumstances- the finding of misconduct is sufficient to finalise this matter.

The relevant employee, through their legal representative, and the respective director are to be made aware of my decision.

This matter is not to be recorded on the relevant employees (sic) personnel file."

1. Superintendent Driver then sent a letter to the Applicant, care of his solicitors, that relevantly read as follows:

"Dear Mr Leighton (sic),

I refer to previous correspondence, dated 13 March 2024, in relation to this misconduct matter and the allegation that you engaged in unreasonable and unprofessional behaviour.

I have received and carefully considered your solicitor's 24 April 2024 response and note the issues raised in that correspondence. I am satisfied that your conduct, in part, during the meeting was contrary to the standards of the NSW Police Force and I make a finding of misconduct by you. Taking into account all of the circumstances the finding of misconduct is sufficient to finalise this matter and no other action will be taken.

This administrative employee misconduct matter has, in accordance with legislative requirements, been reported to the NSW Law Enforcement Conduct Commission, the NSW Government agency with the responsibility to oversee the investigation and handling of NSW Police Force misconduct matters.

This matter is recorded on the NSW Police Force Misconduct Matters Information System (IAPro), reference AOM2024/0035, and will not be recorded on your personnel file.

I now consider this matter finalised, should you wish to discuss the procedural aspect of this matter or seek additional information please contact Case Manager, Louise Gillett (02) 9355 8457. Welfare and other support will be provided by your Command."

1. Superintendent Driver gave the following evidence with respect to the recording of the finding on IAPro and the reporting of the finding to LECC:

"The misconduct finding, as with any finding of misconduct made against any police officer or administrative employee of the NSWPF, was to be recorded on the NSW Police Force Misconduct Matters Information System (IAPro), as required by section 129 of the Police Act 1990 (NSW). PSC is also obliged to notify the Law Enforcement Conduct Commission (LECC) of the outcome of the investigation under section 137 of the Police Act 1990 (NSW), and I understand such a notification was made. LECC otherwise have access to the IAPro system to audit complaint matters as the oversight body responsible for complaints about employees of the NSWPF.

I am not aware of LECC raising any issue in relation to the finding of misconduct against Mr Grant or the action that I decided to take in response to that finding. In my experience, it is rare for LECC to get involved in complaint matters involving administrative employees, and it is equally rare for LECC to become involved in any matter involving relatively low-level unprofessionalism that arises between employees of the NSWPF."

1. Section 129 of the Police Act provides:

129 Registration of misconduct matters

(1) The following must be registered in the misconduct matters information system -

(a) all police complaints, administrative employee complaints and agency complaints about the NSW Police Force received by the Commissioner and the LECC,

(b) such information about misconduct information as is required to be registered in the system by misconduct matters management guidelines.

(2) Despite subsection (1), the LECC may direct that information about a misconduct matter or a specified class of misconduct matters -

(a) is not to be entered in the misconduct matters information system, or

(b) is to be removed from the misconduct matters information system, or

(c) is to be entered or re-entered in the misconduct matters information system.

(2A) Despite subsection (1), information about a misconduct matter (or part of a misconduct matter) received by the LECC or of which it becomes aware that is not referred to the Commissioner is not required to be registered in the misconduct matters information system unless the LECC directs that a misconduct matter received by the LECC be entered in the system.

(3) The LECC Chief Commissioner, and such other officers of the LECC as are authorised in that regard by the Chief Commissioner, are to have unrestricted access to all information in the misconduct matters information system.

(4) The LECC Chief Commissioner may place a caveat on particular information registered in the system and, in that event, access to that information by other agencies and other persons is to be restricted in accordance with the terms of the caveat.

1. The "misconduct matters information system" is established under reg 56 of the Police Regulation 2015. Reg 56 provides:

56 Establishment of misconduct matters information system

(1) A misconduct matters information system is to be established.

(2) The system is to be operated and maintained by the Commissioner.

(3) The Commissioner must allow the LECC to have access to the system for the purpose of enabling unrestricted access to all information in the system as provided for in section 129 (3) of the Act.

(4) The Commissioner must provide the LECC with such information as that body or person may request with respect to the design of the system and the procedures in accordance with which the system is operated and maintained.

(5) Despite subclauses (3) and (4), the Commissioner is not to allow unauthorised access to information the subject of a caveat under section 129 (4) of the Act.

(6) The following information about misconduct matters is to be registered in the system -

(a) the information required by section 129 of the Act to be registered in the system,

(b) such additional information as is required to be registered in the system by the terms of a protocol or memorandum of understanding referred to in section 128 (2) of the Act,

(c) such other information as the Commissioner may from time to time direct to be registered in the system.

(7) The complaints information system kept prior to 1 September 2008 (including the complaints information system kept under Part 8A of the Act prior to 8 March 1999) is taken to form part of the misconduct matters information system established under this clause.

1. Section 137 of the Police Act provides:

137 Information to be sent to complainant (if any) and LECC

(1) As soon as practicable after the investigation of any misconduct matter by the Commissioner has been concluded and a report of the investigation finalised, the Commissioner must -

(a) if the investigation followed a complaint -

(i) if practicable, consult with the complainant before making a decision concerning any action to be taken as a result of the misconduct matter, and

(ii) provide the complainant with advice as to any action already taken, and as to the Commissioner's decision concerning any action to be taken, as a result of the complaint, and

(i) a copy of the finalised report, and

(ii) advice as to any action already taken, and as to the Commissioner's decision concerning any action to be taken, with respect to the misconduct matter, and

(iii) if the investigation followed a complaint, advice as to whether or not the complainant is satisfied with the action taken, or to be taken, as a result of the complaint.

(2) Subsection (1) (b) does not apply if the LECC has waived the requirement under section 106 (Discontinuance of oversight) of the Law Enforcement Conduct Commission Act 2016.

1. Pursuant to s 121 "administrative employee complaint" and "administrative employee misconduct" have the same meaning as in the Law Enforcement Conduct Commission Act 2016 (LECC Act).
2. Section 9(2) of the LECC Act defines "administrative employee misconduct" as follows:

(2) Definition - administrative employee misconduct For the purposes of this Act, administrative employee misconduct means any misconduct (by way of action or inaction) of an administrative employee -

(a) whether or not it also involves participants who are not administrative employees, and

(b) whether or not it occurs while the administrative employee is officially on duty, and

(c) whether or not it occurred before the commencement of this subsection, and

(d) whether or not it occurred outside the State or outside Australia.

1. Section 9(4) of the LECC Act provides examples of the defined terms in s 9. It provides:

(4) Examples Police misconduct, administrative employee misconduct or Crime Commission officer misconduct can involve (but is not limited to) any of the following conduct by a police officer, administrative employee or Crime Commission officer respectively -

(a) conduct of the officer or employee that constitutes a criminal offence,

(b) conduct of the officer or employee that constitutes corrupt conduct,

(c) conduct of the officer or employee that constitutes unlawful conduct (not being a criminal offence or corrupt conduct),

(d) conduct of the officer or employee that constitutes a disciplinary infringement.

1. Pursuant to s 14 of the LECC Act "misconduct matters management guidelines" may be issued by the Law Enforcement Conduct Commission. No such guidelines were tendered as evidence in the present proceeding.
2. For completeness, s12 of the LECC Act relevantly defines a "complaint" as follows:

complaint means an allegation that any conduct -

(a) ...

(b) ...

(c) of an administrative employee (whether or not named or identified) - is (or could be) conduct that falls within the description of administrative employee misconduct or officer maladministration (an administrative employee complaint), or

...

1. While the parties did not refer to the Government Sector Employment (NSW Police Force) Rules 2017 in their submissions, I note that r 47 of those Rules (which is identical to r 41 of the Government Sector Employment (General) Rules 2014) provides:

47 Records relating to misconduct

(1) If an allegation of misconduct by an administrative employee is made under this Part, the Commissioner is to keep a written record of the proceedings and action taken in respect of the allegation.

(2) Any personnel file kept by the Commissioner on such an employee is to include information about any finding of misconduct by the employee that is, in the opinion of the Commissioner, in the public interest to be included. In forming that opinion, the Commissioner is to have regard to the nature and seriousness of the misconduct and the need to minimise any unnecessary or prejudicial information being kept on a person's file.

1. Pursuant to reg 47(2) the Commissioner has a discretion in respect of what is recorded on the employee's "personnel file" in respect of the misconduct, hence Superintendent Driver's decision in this case not to record the Findings in the Applicant's "personnel file". However, in circumstances where the Respondent was statutorily obliged to record the Findings on IAPro, which can be accessed by the LECC Chief Commissioner, other authorised officers of the LECC and it seems, other agencies (s 129(3) and (4)); and to report the Findings to the LECC, the absence of a record on the Applicant's "personnel file" does not mean that the Findings cannot be uncovered in the future. I note that pursuant to s 129(2) of the Police Act the LECC can direct that information about a misconduct matter is not to be entered into the misconduct matters information system, but there is no evidence that that has occurred in this case.
2. The Applicant contends that the Findings and the associated recording of them on IAPro and the reporting of them to the LECC, constitute a detriment because they inflicted upon him an injury, hardship, loss or other disadvantage, as referred to in Davis v Amalgamated Television Pty Limited (1998) IR 354 at 380 - 381 (Cahill J, VP, Hill and Maidment JJ, Redman C):

"In our opinion, it is consistent with the objectives of the section and the statutory changes in 1996, that the word ''victimise'' in s 210 should be construed on a basis which corresponds with the meanings of the word ''victim'' where last appearing in the definition of that word [in the Dictionary], namely, ''one who suffers some injury, hardship or loss, is badly treated or taken advantage of or the like''. The word ''victimise'' is defined, inter alia, as ''to make a victim of; to cause to suffer discomfort, inconvenience, etc''; and where used in s 210 should therefore be interpreted as ''cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment''. So far as a prospective employee is concerned the word ''victimise'' must be construed in the context of the word ''prospective''. In this respect s 213(2)(d) comprehends the remedy of an order requiring the employer to employ the ''prospective'' employee, so that ''victimise'' must also encompass, at the lowest, a refusal to employ. Furthermore, s 213(2)(e) comprehends the remedy of an order requiring the employer not to carry out a ''threat'' to victimise an employee and for that to have any application and effect ''victimise'' must be taken to comprise conduct involving threats to victimise by the employer. However, it is unnecessary in this case to decide the full ambit of the word ''victimise''."

1. The Applicant gave evidence of the impact of the Findings in his statement dated 1 October 2024:

"34. I understand that in these proceedings my employer is arguing that making misconduct findings against me, is not detrimental. This is not the case. The making of the misconduct findings against me, has a significant impact on my health and wellbeing, and confidence in the workplace.

35. During the meeting on [19 February] I was simply trying to raise my concerns about the failure of my employer to adhere to the laws in respect of my duties.

36. The imposition of the findings of misconduct has made me feel like I cannot raise any further complaints about the way I am being treated I the workplace or I might lose my job. This is really stressful and demoralising for me and has made me feel like there is no hope of ever being treated fairly in the workplace again.

37. I have experienced waking up in the night, as a result of extreme feelings of stress and worry as a result of the way I have been treated.

38. I also feel constantly scared that if there are any other confrontations in the workplace, I will not be able to defend myself without being accused of misconduct.

39. As a result of the making of the findings of misconduct against me, my professional reputation has been damaged. The findings letter expressly stated that "NSW Law Enforcement Conduct Commission, the NSW Government agency with the responsibility to oversee the investigation and handling of NSW Police Force misconduct matters" and "This matter is recorded on the NSW Police Force Misconduct Matters Information System (IAPro), reference AOM2024/0035".

40. This means that there will always be a record of the fact that misconduct findings have been made, which will impact my career and future opportunities. If I apply for another job, and am asked whether misconduct findings have been made against me, I will have to answer by saying 'yes".

41. I have had a very long and successful career with the NSW Police Force. It is simply devastating to have had a finding of misconduct made against me, particularly in these circumstances. I have never had a finding of misconduct made against me in the past."

1. The Respondent repeated the submissions she had made in her Outline of Submissions on Notice of Motion (RSNM) seeking summary dismissal of the Applicant's claim, to the effect that the Findings do not constitute a detriment within the meaning of s 210. In particular, she submitted:

"...the Findings must be considered in the relevant legislative context. s 69(4) of the GSE Act sets out the action an employer may take in respect of an employee who has engaged in misconduct, in the form of disciplinary action. It suffices to observe that the mere recording of a sustained finding of misconduct is not a disciplinary sanction found in that provision. Indeed, the fact that no sanction was imposed is made obvious by the fact that, if there was to be any such sanction, the Applicant would first need to have been notified of the proposed sanction and given an opportunity to respond to it [by reason of the GSE Rules].

In making the Findings, there was no adverse consequence for the Applicant whatsoever. In the circumstances, the Findings do not give rise to injury, hardship or loss, or otherwise involve the employee being treated harshly, unfairly or to their disadvantage. It is not a detriment within the meaning of s 210 of the IR Act. ..."[5]

1. In the RS the Respondent submitted (with footnotes omitted):

"In short, the Applicant's evidence as to his subjective views and beliefs about the impact of the misconduct finding upon him do not assist him in discharging his onus of establishing that he was, in fact, subject to a detriment. In the Respondent's submission, the question of whether a person has suffered a 'detriment', within the accepted meaning set out in the authorities, must be determined objectively. It cannot be assessed against an applicant's 'say so', because the very fact that an applicant has commenced proceedings demonstrates that they feel as though they have suffered hardship, injury or loss. Whether they have, in fact, suffered such hardship, injury or loss must be determined through an objective lens.

In this matter, there is no evidence of any objective hardship, injury or loss suffered by the Applicant as a result of making or recording the Findings or notifying LECC of the decision the Respondent made."[6]

1. In oral submissions the Respondent submitted that I would have regard to:

(1) the fact that the Applicant led no medical evidence to say that he has suffered from any kind of health issue arising from the Findings;

(2) the Applicant's evidence in cross examination that he remained confident regarding his work performance and his ability to advocate for himself in the workplace, as demonstrated by the fact that he has made further complaints since the Findings and has conducted these proceedings;

(3) the Applicant's evidence in cross examination that his sleeplessness, stress and worry had commenced in mid-2023, that is, before the Findings, arising from the dispute over his role description and his "perceived discrimination and the victimisation"; and

(4) the absence of any evidence that the Applicant's reputation has been damaged or that the recording of the Findings on IAPro or at the LECC has had or will have, any impact on his career.

1. In response to the Applicant's evidence that he would be obliged to inform a future employer of the finding of misconduct made against him, if asked, the Respondent submitted:

"That's so, but also, he will be able to explain what those misconduct findings were, the context in which they arose, the fact that there was no disciplinary action that was taken in respect of it, so he will be able to provide that contextualised explanation. And to the extent that he otherwise says well, that is something that is going to prevent a future employer from employing me, Mr Grant very fairly accepted in his cross-examination that that was also unknown, I think was the word that he used. And plainly enough, that's so, because having not actually applied for a role, he doesn't know, in fact, firstly whether he will even be asked the question, have you engaged in misconduct, but even if he was, whether or not a positive answer to that question, particularly providing that answer with the context to which I have referred, would in fact, result in him being turned down from a particular job opportunity. So at the moment, it is largely speculative."[7]

1. As Davis and other authorities make clear, detriment for the purposes of establishing victimisation within the meaning of the IR Act has no fixed meaning. A broad interpretation is warranted given that s 210 is a protective provision, as noted by Full Bench in Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218; 156 IR 323 and Newall C in Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance [2017] NSWIRComm 1036 at [20].
2. As Newall C in Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance observed at [19], the finding as a matter of fact that a detriment has occurred is a serious finding as it gives rise (if a protected attribute is also established) to a presumption that the Act has been breached. It is a finding to be made at the civil standard of proof, but mindful of "the cautionary words of Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2 ... in assessing the evidence, a view that is reinforced by the provisions of s.140 of the Evidence Act 1995."
3. Newall C also held, at [34], that whether something is a detriment must be measured objectively. I accept the Respondent's submission that while an Applicant may personally feel that they have suffered hardship, injury or loss, whether they have, in fact, suffered such hardship, injury or loss must be "determined through an objective lens." Expressed another way, the hardship, injury or loss suffered by an Applicant must be something which a reasonable person would consider to be a detriment: see Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41], in the context of victimisation under the Anti-Discrimination Act 1977 arising from race discrimination complaints.
4. The Applicant gave evidence that he felt "devastated" by the finding of misconduct, however the Respondent submitted that:

"... [such feeling] doesn't rise to the objective level of amounting to an injury, a hardship, or a loss, in the context of his employment. That would be to elevate Mr Grant's personal feelings about that particular finding to an objective level of hardship, injury, or loss, that does not exist, in our respectful submission, where that finding is not accompanied by any kind of disciplinary action or indeed, any recording of it on his personnel, albeit, it was recorded in those two other locations to which we've referred because of the forces of statute."

1. However, determining whether an Applicant has in fact suffered a detriment "through an objective lens" does not involve disregarding the Applicant's feelings entirely, as plainly enough, if an Applicant does not actually experience some kind of hardship, injury, loss or something of that kind, there can be no detriment. Thus, in Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance, Newall C rejected the submission that a transfer of the applicant in that case from one ambulance station to another not far away while an investigation into the Applicant's conduct was carried out, constituted a detriment due to "stress, alienation etc", in circumstances where the Applicant gave no evidence that he was suffering "stress" or "alienation" by reason of the transfer.
2. It is also important when assessing the alleged detriment "through an objective lens" that one does not take into account matters that do not properly bear on that assessment, in particular the reasons for the imposition of the alleged detriment. It seems to me that Newall C impermissibly did this in Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance at [39] and [40] when he found held that a statement made by an Executive Director to the applicant in correspondence that the applicant had engaged in conduct "below the standard expected of an Intensive Care paramedic", being "a statement entirely justified on the findings of [an] independent investigation" could not constitute a detriment because it was "factually correct and entirely deserved". With respect to the Commissioner, he was wrong when he stated, at [40], that:

"The Act cannot be read to provide that no disciplinary or investigative process [which he earlier explained includes a disciplinary sanction] at all can be carried out in relation to an employee who falls within any of the sub-categories set out in s.210(1) without that being of itself a detriment and triggering the rebuttable presumption in s.210(2). Such a reading would be absurd."

1. On the contrary, a disciplinary sanction and perhaps, depending on all the circumstances, the disciplinary process itself, is more than capable, objectively, of being a detriment such that the rebuttable presumption is triggered. As discussed above, the "correctness" of that decision may bear upon (although is not determinative of) whether the presumption is rebutted, but it does not bear upon whether the employer's action or inaction (as the case may be), constitutes a detriment.
2. In Narda Tapia v Lagoon Seafood Restaurant [2003] NSWIRComm 341 Glynn J considered, at [294], that the orders that the Commission may make, as set out in s 213(2) were relevant "as to what is envisaged in s 210 as constituting victimisation of an employee." As she noted:

"294 ... The orders go to remedy specific mischiefs:

(a) termination of employment;

(b) denial of promotion;

(c) non-payment of remuneration or financial benefits;

(d) refusal to employ;

(e) specific threats to victimise;

(f) activity taken or not taken by an industrial organisation;

(g) consequential orders to ensure the efficacy of orders made under pars (a) to (f).

295 Paragraphs (a) to (e) relate to particular incidents of employment, and to actions of victimisation that might either be positive eg termination of employment or negative eg refusal to promote."

1. However, s 213(2) does not limit the type of orders the Commission may make pursuant to s 213(1) to remedy victimisation: Ters v Health Secretary in respect of the South Western Sydney Local Health District [2023] NSWIRComm 1009; 323 IR 120 and consequently I do not consider that s 213(2) confines what might constitute a detriment for the purposes of s 210. Notably in that decision the majority (Sloan and Muir CC) considered, in obiter remarks (at [97]), that it was possible that an order requiring an employer to withdraw a warning letter could arguably constitute "advancement" of an employee in his or her employment and so could constitute an order as described in s 213(2)(b). While the question of whether a warning letter could constitute a detriment for the purposes of s 210, was not determined in the decision, the remarks of the majority in Ters, combined with the approach to the question employed by Glynn J, indicates that it is at least arguable that a "blemish" on an employee's record (to use the language of Sloan C during an exchange with counsel for the respondent in Ters, at [58]), which has the capacity to hold back an employee's advancement in their employment, could constitute a detriment.
2. The Respondent invited me to consider the Findings in the "relevant legislative context", which she considered was s 69(4) of the GSE Act, which refers to the actions an employer may take in the event of a finding of misconduct against an employee. However, the relevant legislative context includes more than just that subsection.
3. Section 69(1) of the GSE Act relevantly provides:

misconduct extends to the following -

(a) a contravention of this Act or an instrument made under this Act,

(b) taking action that constitutes a detrimental action offence[8],

(c) taking detrimental action against another person in circumstances where -

(i) the person taking the detrimental action suspects, believes or is aware, when taking the action, that any person has made, may have made, may make or proposes to make a disclosure about alleged misconduct by an employee of a government sector agency, and

(ii) the suspicion, belief or awareness, whether correct or incorrect, is a contributing factor to the taking of the detrimental action,

(d) a conviction or finding of guilt for a serious offence.

The subject matter of any misconduct by an employee may relate to an incident or conduct that happened while the employee was not on duty or before his or her employment.

1. "Misconduct" is not defined in the Police Act. However, as noted above, s 9(2) of the LECC Act gives examples of "administrative employee misconduct" as including conduct that constitutes a criminal offence, conduct that constitutes corrupt conduct, conduct that constitutes unlawful conduct and conduct that constitutes a disciplinary infringement.
2. Boland J specifically considered what constitutes "misconduct" under the Police Act in McDiarmid v Commissioner of Police [2012] NSWIRComm 100, a decision that has been followed in this Commission. His Honour approved the remarks of Kirby P in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200-201 and found (at [125]):

"Misconduct does not mean, "mere mistakes, errors in judgment or in the exercise of discretion..." or "unsatisfactory conduct", but rather "wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts." I would not place too much weight on the word "obstinate", however. If the misconduct was reckless or careless indifference I think the test in Pillai v Messiter (No 2) would be met."

1. The Macquarie Dictionary defines "misconduct" as follows:

"1. Improper conduct; wrong behaviour.

2. unlawful conduct by an official in regard to his or her office, or by a person in the administration of justice, such as a lawyer, witness, or juror.

3. mismange.

4. misconduct oneself, misbehave."[9]

1. By any measure, a finding made by an employer that an employee has engaged in misconduct carries with it a high level of opprobrium. It is a determination that the employee has engaged in conduct which is morally regarded as wrong, and which may also be legally wrong. Such opprobrium necessarily, and without the need for further proof, damages the reputation of the employee. I consider that a reasonable person would consider that a finding of misconduct damages the reputation of the person the subject of the finding, and that such damage would constitute a detriment within the meaning of s 210.
2. A finding of misconduct is quite different from say, a statement from a manager that an employee has failed to meet a standard expected of employees, such as was made in Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance. That is not to say that such a statement or finding could not constitute a detriment, depending on all the circumstances, but something more would usually be required to elevate day-to-day management action to a detriment under s 210.
3. I do not consider that it is necessary, as the Respondent suggested, for an applicant for relief from victimisation to demonstrate that the finding of misconduct has in fact harmed their future career prospects, before it could be said that the finding constituted a detriment for the purposes of s 210. In circumstances where an applicant has 28 days to seek relief for victimisation such a requirement would act as an insuperable barrier to obtaining relief. I consider that a finding of misconduct alone, given its implications, is sufficient to constitute a detriment for the purposes of s 210. I note that the Commissioner of Police in Saraceno conceded that being investigated for misconduct amounted to a detriment within the meaning of s 210(2) of the IR Act.[10]
4. While I consider that a finding made by any employer that an employee has engaged in misconduct, will constitute a detriment for the purposes of s 210 for the reasons just discussed, the characterisation is even clearer in respect of public servants and members of the Police Force in particular. This is because there are statutory consequences to such a finding.
5. Sub-sections 69(4) and (5) of the GSE Act provides:

(4) If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency, the person who exercises employer functions in relation to the employee may take any of the following actions -

(a) terminate the employment of the employee (without giving the employee an opportunity to resign),

(b) terminate the employment of the employee (after giving the employee an opportunity to resign),

(c) impose a fine on the employee (which may be deducted from the remuneration payable to the employee),

(d) reduce the remuneration payable to the employee,

(e) reduce the classification or grade of the employee,

(f) assign the employee to a different role,

(g) caution or reprimand the employee.

(5) Proceedings and actions under this section may be taken or continued despite the employee resigning or otherwise ceasing to be an employee of the agency concerned. Any such action may be expressed to be a termination of employment even if the person has ceased to be an employee.

1. The Respondent submitted that the fact that none of the sanctions permitted by s 69(4) were implemented means that the Applicant suffered no detriment. However, the finding of misconduct acts as a precondition to the imposition of sanctions; it results in the possibility of certain prescribed consequences. As such, it places the employee in a vulnerable and less favourable position than they occupied prior to such a finding. As such it must constitute detrimental action.
2. This is all the more so for members of the Police Force due the mandatory requirement for a finding of misconduct to be recorded on AIPro and reported to the LECC. Once a finding of misconduct is made, and absent a direction from the LECC that it not be recorded in IAPro, the finding is, metaphorically, written in stone against the name of the offending employee.
3. If I am wrong, and some evidence of the Applicant suffering hardship, injury or loss is required, in addition to the finding of misconduct, I consider that there is such evidence in this case. The Applicant gave evidence that it was "devastating" to have had a finding of misconduct made against him, particularly in circumstances where he had had a long and successful career in the Police Force and had never had a finding of misconduct made against him in the past. I consider that the Findings have inflicted upon the Applicant a moral injury, in that they contradict his beliefs, values and sense of self. This injury has manifested in various ways including:

(1) adversely affecting the Applicant's general confidence in the workplace and making him fearful that he will not be able to defend himself without being accused of misconduct. In this regard I consider that the ability to overcome that fear, as the Applicant appears to have done to some extent, does not mean that the fear does not exist;

(2) contributing to the Applicant feeling stressed and worried about what he perceives to be discriminatory treatment (along with the dispute about the nature of his substantive role and other related matters); and

(3) making him concerned, by reason of the statutory obligation to report the misconduct finding to LECC and record the misconduct finding on IAPro, that his professional reputation has been damaged and could harm his future career.

1. The Findings, the recording of them on IAPro and the reporting of them to the LECC amount to a detriment within the meaning of s 210(2) of the IR Act. Further, although the recording of the Findings on IAPro and the reporting of them to the LECC was mandated by legislation I consider that these elements of the detrimental action were suffered by the Applicant "as a result of the action of the employer" as they followed as a direct and unavoidable consequence of the employer's action in making the Findings.

Establishment of the Pleaded Protected Attributes

1. The Respondent concedes that the First February Work Health and Safety Complaint and each of the First, Second and Third February Email Complaints were established, and enlivened s 210(1)(j) of the IR Act[11] and that the Section 210 Complaint was established, and enlivened s 210(1)(f) of the IR Act.[12] During final oral submissions the Respondent also conceded that the Award Compliance Request was established, and enlivened s 210(f).[13]

1. The Respondent says that the Changing Duties Complaints are not established and do not enliven s 210(1)(f) of the IR Act. Paragraph [7] of the FAA reads as follows:

"From at least the commencement of 2023, the Applicant made complaints about the fact that it was proposed that duties had be significantly altered and increased without sufficient consultation and without a change in his classification (Changing Duties Complaints)."

1. The FAA does not particularise when and to whom the complaints were made or what exactly the complaints were comprised of and the Applicant did not clarify the matter during the hearing.
2. In relation to the Changing Duties Complaint the Applicant submitted (at AS [4.2(a)]:

"...the Award clearly sets out the process that the Respondent was to follow when seeking to impose such changes (including consultation). The Applicant duly informed the Respondent that its approach contravened the Award;"

1. No award was tendered in evidence.
2. The evidence before the Commission of the Applicant making a complaint about his duties (other than an email to Mr Drexler dated 24 October 2023, which is the subject of the Award Compliance Request and at the 19 February 2024 meeting, which is the subject of the February Duties Complaint) is contained in:

(1) an email from the Applicant to Mr Drexler dated 4 July 2023 sent at 11:45am; and

(2) an email from the Applicant to the Professional Standards and Conduct Unit dated 15 November 2023.

1. In the email of 4 July 2023 the Applicant said:

"I am planning to return to work next Tuesday 11th but I really need an answer form either Police or the Premiers department as to "do I have to do work that is not part of my substantive position?" if this can not be verified before I return there will only be issues on my return as I don't believe I should be asked to do things that are not part of the position I'm employed too.."

(Errors in original)

1. No mention is made in that email of any alleged breach of the industrial relations legislation or an industrial relations instrument. I do not consider that the email of 4 July 203 enlivened s 210(1)(f).
2. In the email of 15 November 2023 the Applicant said (with emphasis added):

"To whom it may concern,

Hello my name is Leighton Grant and I believe I am being forced to undertake work that I am not employed to do and this issue has been going on for quite some time.

I have provided the NSW Police force with the roles and responsibilities and the signed acceptance letter for my current role, Police disagree that this is my role and have provided responses that I believe are incorrect and unsupported by Police's own internal documentation..

I have been reported to PSC for not doing tasks that I am not employed to perform; I am constantly threatened with performance management for things I believe I am not employed to do.

...

The first question I have is what Role I am employed in, I believe its Wan Specialist and I was appointed in 2010. Can I please get an answer. If I am not in the wan specialist role, can you please provide the date that I was appointed to such role and advise why this employment change is not reflected in my personnel file as my understanding it should be by law..

Please understand this is an important matter as I have been reported to PSC and have constant threats of performance management and constant emails from my director implying, I am not fulfilling my duties. Also the duties Police are stating that I am under which I disagree with also do not state the tasks I am being asked to perform. I believe this is wrong and it is against HR legislation. I believe I am being targeted and discriminated against and this is just part of all that which has been going on for years.

At the moment I am being forced by Police to undertake this work and I am complying under duress.

Please advise so these HR matters can be put to bed and the employee has a clear understanding of their employment conditions.

Attached is what SAP says. And as you can see I was appointed to the CSO5 Role on the 06/12/2010, this is the Wan Specialist role I mentioned previously.

Please advise"

(Errors in original)

1. Section 210(1) requires that an applicant has informed a person of an alleged breach by the employer of the "industrial relations legislation or an industrial instrument". "Industrial relations legislation" is defined in the Dictionary in Schedule 5 to the IR Act and includes the IR Act. "Industrial instrument" is defined in s 8 of the IR Act and includes an award. It is not necessary for an applicant to prove that the employer was actually in breach of the IR Act or an industrial instrument for s 210(1)(f) to be engaged.
2. I consider that the Applicant's reference to "HR legislation" in the 15 November 2023 was intended to be a reference to the IR Act, something that counsel for the respondent accepted "at a very high level".[14]
3. On balance I find that the Changing Duties Complaints as pleaded is made out on the basis of the 15 November 2023 email to the Professional Standards and Conduct Unit and the complaint made was sufficient to enliven s 210(1)(f) of the IR Act.

1. The Respondent says that the February Duties Complaints do not enliven s 210(1)(f) of the IR Act. The pleading of this alleged protected attribute was at [17(b)(ii)] of the FAA:

"During the 19 February Meeting, the Applicant:

(a) ...

(b) made repeated complaints about:

(i) ...

(ii) the fact that the directions to perform work outside the scope of his Substantive Role, were unlawful, given he was being directed to perform work which was inconsistent with his current classification and role description (February Duties Complaints);"

1. In relation to the February Duties Complaint the Applicant submitted (at AS 4.2(c)]:

"...the Award sets the minimum rates of pay for the applicable classifications and grades. The Applicant duly informed the Respondent that its construction and expectation of his role was undervalued and therefore contravened the Award;"

1. As set out at [40] the Applicant gave evidence that during the meeting of 19 February 2024 he said words to the effect of:

"The proposed change to my role are against HR legislation."

and

"The duties are illegal""

" ...a role description is not legislated or an industrial instrument. While the Award contains classifications, it does not prescribe any duties associated with each classification."

1. Such submission is somewhat disingenuous. It seems clear from the totality of the evidence as to what occurred during the 19 February meeting, that the Applicant was asserting that the duties he was being asked and indeed had been directed to perform, were above the classification to which he was assigned and for which he was being paid.
2. As noted at [94] above, s 210(1) requires only that employee applicant has informed a person of an alleged breach by the employer of the "industrial relations legislation or an industrial instrument".
3. As with respect to the Changing Duties Complaint I consider that the Applicant's reference to "HR legislation" was intended to be a reference to the IR Act, and that in stating that the change to his role was against the IR Act and that the duties he was being asked to perform were "illegal" he informed Mr Drexler of an alleged breach by the Respondent of the IR Act and/or the award which sets out his terms and conditions of employment.
4. In the premises I consider that the February Duties Complaint is made out on the evidence and it enlivened s 210(1)(f).

1. The Respondent says the 2023 Complaints do not enliven s 210(1)(j). The pleading of this alleged protected attribute was at [11] and [11A] of the FAA:

"11 From around June 2023 to February 2024, the Applicant raised complaints regarding changes to the Substantive Role. He also complained that the proposed changes and ongoing uncertainty were impacting his health and wellbeing and were causing a risk to his health and safety as set out below.

11A. During this period, the Applicant made complaints about the following matters:

(a) directions by Mr Drexler to perform duties that were outside of the Applicant's ordinary scope of work in the Substantive Role, without any genuine consultation with him.

(ab) That the direction to perform the additional duties constituted a significant change to his role and caused the Applicant stress and adversely impacted his health;

(b) Mr Drexler's decision to suspend his WFH Arrangement, impacted the Applicant's ability to fulfil his caring responsibilities for his elderly mother and causing him stress and adversely impacted his health;

(c) Mr Drexler's conduct towards the Applicant, constituted bullying and unreasonable targeting causing him stress; and

(d) on 15 November 2023, to the Professional Standards and Conduct, Safe Reporting, the Applicant's employment, including relevantly, complaining that he was being "targeted and discriminated against' by the Respondent.

1. In relation to the 2023 Complaints the Applicant submitted (at AS [4.2(d)]):

"...these variously canvassed complaints that were sufficiently tethered to the Applicant's concerns about safety. Such complaints related to directions for the Applicant to discharge work which was outside his ordinary scope; directions which were adversely impacting the Applicant's health; and conduct which constituted bullying. All such complaints were aligned to "workplace matters" (and not mere personal grievances) and predicated on the Applicant's concern about safety and/or a risk to health."

"..as to the 2023 Complaints, the particulars are vague and amorphous. Even at their highest, they do not appear to amount to complaints about workplace matters that are not safe or a risk to health, but rather, were generalised complaints by the Applicant about his employment, which the Applicant contends led to him suffering injury or illness. That is not a complaint that falls within s 210(1)(j)."

1. A review of the evidence of the Applicant's communications with employees of the Respondent from June 2023 to February 2024 (not including those that constitute the First February Work Health and Safety Complaint and each of the First, Second and Third February Email Complaints) reveal that there is one communication which could be said to constitute a direct complaint about a workplace matter which the Applicant considered was not safe or a risk to health, specifically his own health. That complaint was contained in an email sent by the Applicant to Mr Drexler on 26 August 2023 at 11:23am. That email read as follows:

"Paul

I have been in bed for three days straigh now out of fear of returning to my workplace due to the extremem intimidation, punishment and targeting i have received at behalf of my emoloyer. With zero written responce over years to anything i have raised. But max punushment dished out.

I fear my emoloyer and that toxic workplace.

This is causing me great mental health and wellbeing issues.

I should not be forced to return to work when i have soo much leave just so i can be intimidated and targeted more. Its disgusting.

For my mental health and welbeing i am seeking immediate approval of all my remaining leave at half pay,which i have considerable.

I will not be intimidated and targeted by my employer and forced to attend an environment where this is happening.

I have zero plans to return to this toxic worplace and plan to seek employment elwere.

Yet at the moment i consider i am being forced by my employer to return to work under full duress and this has given me suicidal tendancies out of fear of returning to that workplace. Something i have never experienced in the past - but is purely related to one thing, fear of attending that work place.

This matter needs to be handled with disgression, unlike my past matters.

Please advise ASAP.

Leighton Grant"

(Errors in original)

1. I consider that this email does constitute a complaint within the meaning of s 210(1)(j).
2. There is also email sent by the Applicant to Mr Drexler on 10 July 2023 at 2:28pm in which he informed Mr Drexler that he "had medical issues this morning due to the stress of all this" and attached a medical certificate, but in which he also said: "I will be making no more complaints to police or premiers (sic) depatment (sic) re my employment issues. I will just do my best to leave."
3. I do not consider that this email constituted a complaint about a workplace matter that the Applicant considered was not safe or a risk to health. The Applicant's complaint in that email was not that Mr Drexler's conduct, in insisting that he perform duties outside of what the Applicant considered to be his substantive role, or other inappropriate conduct, was itself not safe or a risk to the Applicant's health. Rather his complaint was that he was being asked to perform duties outside of his substantive role. The email of 10 July 2023 did not enliven s 210(1)(j).

(1) the Changing Duties Complaints and that they enlivened s 210(1)(f);

(2) the Award Compliance Request and that that enlivened s 210(1)(f);

(3) the February Duties Complaints and that they enlivened s 210(1)(f);

(4) the 2023 Complaints and that they enlivened s 210(1)(j);

(5) the First February Work Health and Safety Complaints and that they enlivened s 210(10(j);

(6) the First 19 February Email Complaints and that they enlivened s 210(1)(j);

(7) the Second 19 February Email Complaints and that they enlivened s 210(1)(j);

(8) the Third 19 February Email Complaints and that they enlivened s 210(10(j)' and

(9) the Section 210 Complaint and that it enlivened s 210(1)(f).

1. The Applicant has also established that the Findings constitute detrimental action. In the circumstances the Respondent must establish that the above complaints were not a substantial and operative cause of the Findings and the recording and reporting of them.
2. As explained above, the Findings were made by Superintendent Driver. Superintendent Driver gave evidence that on or about 7 June 2024 he was forwarded the 'Godfrey Report' that had been prepared by Ms Gillett and dated 4 June 2024. On that day, or shortly thereafter, he reviewed the Godfrey Report and the documents provided with the Godfrey Report.
3. The Godfrey Report was in the following terms:

"ISSUE

Delegate determination of relevant employee statement in response to allegation details, per r.44(6), AOM2024-0035 relates.

BACKGROUND

On 20 February 2024 a misconduct matter was receipted at the AOCU and determined to proceed per r.44(4) of the Government Sector Employment (NSW Police Force) Rules 2017 (Rules). The allegation of misconduct is:

Allegation 1

It is alleged that on 19 February 2024 the relevant employee behaved unreasonably and unprofessionally towards his Director, Paul Drexler.

On 03 April 2024 the relevant employee, Mr Grant, was advised of the details of the allegation and the action that may be taken against them, per r.44(4). They were, per r.44(5), given 14 days to make a statement in relation to the allegation.

COMMENT

On 24 April 2024 the relevant employee's response was received through his legal representative, Maurice Blackburn Lawyers, copy attached. In summary Mr Grant's lawyer highlights Mr Grant's exemplary work record until the commencement of Director Paul Drexler; a series of complaints registered by Mr Grant that remain unanswered; they allege Mr Drexler's direction for Mr Grant to perform duties outside of his ordinary scope of work, while removing Mr Grant's workplace entitlement of flex time and limiting Mr Grant's ability to work from home. Page 2 of the letter from Maurice Blackburn Lawyers addressed 'the allegation' subject of this matter, these matters will be addressed by Chief Inspector Newton in separate correspondence.

[Paragraph redacted - apparently referring to confidential information pertaining to another complaint matter.]

As stated in the letter from Maurice Blackburn Lawyers, Mr Grant stopped the meeting on 19 February 2024 and asked for a support person to be present, this support person was Michael Gulliver. Mr Gulliver reports that by the time he was invited in the room he could sense there was frustration and disagreement between the parties.

For the portion of the meeting Mr Gulliver witnessed, his statement provides authentic and unrehearsed observations of what occurred, his perspective differs to that of Chief Inspector Toby Austin in terms of the of level of unprofessional behaviour that Mr Grant's reached during the meeting.

Further when considering the matter in its entirety, the requests made by Mr Grant (a role description, working from home provisions and flex time) are not unreasonable and are available to all administrative officers employed, the application of the entitlement is negotiated at Command level in a fair and reasonable way in line with the Award, policy and operational requirements. In terms of the role description, all administrative officers must have a published role description that aligns with the NSW Public Sector Capability Framework to support development and clarity around their performance in the role. It is not reasonable to present an administrative officer with an emailed role description and expect that email to be legally binding and enforceable.

When considering all three accounts of what occurred, I am of the view that while Mr Grant's conduct was at the lower end of unprofessional, it does not meet the threshold for management action under section 69(4) of the Government Sector Employment Act 2013.

Mr Grant has been employed by the NSW Police Force since 2000 and until July 2023 had no misconduct matters where he was the named relevant employee. There are now two misconduct matters where Mr Grant is named as the relevant employee, this one and AOM2023-0098 for unprofessional behaviour towards Chief Inspector Rodney Ormes, resolved locally s131(1)(c).

Despite the denials included in the relevant employee's response, there is sufficient information in support of the alleged misconduct that it is open to the delegate to proceed, per r.44(6)(a), without further inquiry, to make a finding that misconduct has occurred, per r.46(1)(a).

Rule 44(6) requires the relevant employee to be notified of the delegate's decision to proceed / not proceed with this matter.

The relevant employee's PSM has perused the relevant information, including the employee's response and requests a finding of misconduct is made taking no further action per s69(4) with conduct monitoring for a reasonable period**.**

RECOMMENDATION

I recommend the delegate determine, per r.44(6), this matter:

• proceed to finding, with no action to be taken per s.69(4) of the GSE but conduct monitoring per r.46(3) of the Rules. for the reasons stated above.

Louise Gillett

Case Manager, AOCU

04 June 2024

1. Manager, AOCU

I have reviewed this matter and concur with the recommendation of the case manager. There is sufficient information to suggest the relevant employee has engaged in the misconduct as alleged.

Accounting for all the circumstances of this matter not taking s.69(4) action is not unreasonable as conduct monitoring, per r.46(3), appears an appropriate outcome.

I have consulted with the T&CSC HR Manager in relation to the broader issues raised in this matter.

That officer intends, as the HRM for the newly formed T&CS Command to attend to the nonmisconduct HR issues raised by the relevant employee. The matter could then be reasonably concluded.

SJ Newton

Manager, AOCU

7 June 2024"

1. Superintendent Driver said that prior to making his decision he reviewed the documents provided to him with the Godfrey Report being:

(1) an email complaint against Mr Grant from Chief Inspector Toby Austin, Technology Command, dated 19 February 2024;

(2) an email complaint against Mr Grant from Mr Paul Drexler, Director, Network & Security Platform Services, Technology Command, dated 19 February 2024;

(3) a statement of Michael Gulliver, dated 19 February 2024;

(4) email correspondence between Chief Inspector Ormes and Senior Sergeant Paul Johnston, Administrative Officer Conduct Unit, Professional Standards Command, dated 20 February 2024;

(5) email correspondence from Mr Drexler to Mr Grant dated 20 February 2024;

(6) email correspondence from Chief Inspector Ormes dated 22 February 2024 containing additional information from Mr Drexler dated 21 February 2024;

(7) an undated interim risk management plan;

(8) an Initial Assessment Report prepared by Ms Louise Gillett Case Manager, AOCU, dated 13 March 2024;

(9) the Allegations Letter; and

(10) the MB Response.

1. Each of these documents were annexed to Superintendent Driver's statement and admitted into evidence.
2. Superintendent Driver gave the following evidence in his statement dated 4 April 2025, as to the process he followed to arrive at the Findings and the reasons why he made the Findings:

"20. On 14 June 2024, I exercised the delegated authority of the Commissioner of Police in coming to a decision on whether Mr Grant had engaged in misconduct or not. In making that decision, I adopted my usual practice, which is to review all the information and evidence for myself, and decide whether or not I was satisfied that misconduct had occurred, and if so, then deciding what an appropriate disciplinary sanction, if any, would be. In that regard, while covering reports like the one prepared by Ms Gillett in this case were useful to me in providing a short summary of what the matter was about, my practice was to come to my own opinion from my own review of the material, and not simply adopt the view or recommendation provided by Chief Inspector Newton or any member of his AOCU team. Again, that was the practice I adopted in Mr Grant's case.

Finding of misconduct

21. Having reviewed the evidence that was before me ..., I concluded that Mr Grant had engaged in unprofessional behaviour, and therefore, made a finding that he had engaged in misconduct. That decision was my own, based solely on my review of the evidence, and not impacted by any view or recommendation provided to me by anyone else.

22. The reason why I reached the conclusion that Mr Grant engaged in misconduct is because, it was, and is, a fundamental expectation within the NSWPF that all members conduct themselves with the highest standards of professionalism, courtesy, and respect, whether interacting with the public or their colleagues. These expectations are non-negotiable and are essential to maintaining the integrity of the NSWPF.

23. Having reviewed the material, I considered that Mr Grant had behaved unreasonably and unprofessionally towards his Director and manager, Mr Drexler, in a meeting on 19 February 2024 and that this amounted to misconduct.

24. The email statement from Chief Inspector Austin sets out that Mr Grant was "highly agitated, argumentative, and aggressive" and details allegations of swearing by Mr Grant and inappropriate comments towards Mr Drexler.

25. Mr Drexler's email statement about the meeting stated that Mr Grant had demonstrated "rude, unreasonably offensive behaviour including yelling, using offensive language, and falsely accusing me of lying."

26. I also considered the statement provided by Mr Grant's support person, Michael Gulliver, who said that Mr Grant raised his voice on two occasions. He also provided some comments in relation to Mr Grant's swearing. I noted that Mr Gulliver was not present for the entirety of the meeting.

27. I also considered Mr Grant's Response to the allegations, and particularly, his denial that he engaged in conduct that was unreasonable and unprofessional, particularly at paragraph 19 of his Response.

28. I also considered the context in which Mr Grant said the meeting on 19 February 2024 occurred, which was set out at length in the Response. I took into account, among the other matters set out in the Response, Mr Grant's position that he was being asked to perform duties that he considered fell outside of his role and responsibilities. While I understood Mr Grant's frustration with the situation, I did not consider the disagreement between him and Mr Drexler to excuse the manner in which he chose to express himself in the meeting on 19 February 2024. I was satisfied, based on the evidence of Mr Drexler, Chief Inspector Austin and Mr Gulliver, that Mr Grant had engaged in the alleged conduct.

29. In particular, and based on experience, I consider it reasonable for individuals to, at times, disagree with their superiors or feel aggrieved by the type of work they are directed to undertake. However, it is, in my opinion, equally reasonable for managers and supervisors to expect any such disagreements to be conducted respectfully and in a professional manner.

30. In that regard, I rejected Mr Grant's contention that inappropriate language, and swearing, is an accepted part of the culture in the NSWPF. I do not agree. I understood his response to otherwise be accepting that he used inappropriate language during the meeting on 19 February 2024, but denying that it was directed toward Mr Drexler or Chief Inspector Austin. However, Mr Grant did not explain, in his Response, exactly what inappropriate language he used, and to whom it was directed if not to Mr Drexler and Chief Inspector Austin. In the circumstances, I considered the more specific and detailed accounts of Mr Drexler and Chief Inspector Austin to be the better evidence, which I relied on.

31. Overall, based on the material that was before me, I was satisfied that Mr Grant had engaged in the misconduct as particularised in each of the bullet points set out in the Allegation Letter. To summarise, in reaching that view, I accepted the evidence of Chief Inspector Austin, Mr Drexler and Mr Gulliver (to the extent he was present), which was consistent with the behaviour alleged in the Allegation Letter, and rejected Mr Grant's denials, including his denial that his behaviour could ever amount to misconduct, and his attempts to explain his behaviour. I was satisfied that, amongst other things detailed in the Allegation Letter, Mr Grant had been aggressive in his tone toward Mr Drexler, accused him of lying, used inappropriate language and failed to speak with his colleagues in a respectful manner.

32. I was satisfied that this behaviour amounted to misconduct, despite Mr Grant's claim to the contrary in his Response, given that it contravened the NSWPF Code of Conduct and Ethics and the Respectful Workplace Behaviour Guidelines. In particular, Point 1 of the Code of Conduct and Ethics obliged Mr Grant to behave in a manner that upheld the values and good reputation of the NSWPF, while Point 4 of the Code of Conduct and Ethics required him to "treat everyone with respect, courtesy and fairness", including other employees. Further, the Respectful Workplace Behaviour Guidelines impose obligations on all employees to contribute to, and maintain, a respectful and positive workplace culture.

...

Disciplinary sanction

34. Having concluded that Mr Grant had engaged in misconduct, I then turned to consider the appropriate disciplinary action to be taken. On considering all of the evidence and circumstances, I reached the conclusion that Mr Grant's misconduct was at a very low level, and that no further action of any kind, beyond the finding of misconduct, was necessary. Again, this decision was my own, and not impacted by any view or recommendation provided to me by anyone else.

35. In coming to that view, I contextualised Mr Grant's alleged behaviour within the broader circumstances surrounding the matter including as he reported in his Response. As I have described above, any frustrations Mr Grant may have experienced arising from the circumstances in which he found himself did not excuse the manner in which he conducted himself in the meeting. However, I was satisfied that it did explain why he likely acted in the way that he did."

1. Superintendent Driver gave the following additional evidence regarding the allegation that he had made the finding of misconduct based on the protected attributes pleaded in the FAA:

43. I deny this assertion. I made the finding of misconduct against Mr Grant, and concluded that no sanction should be imposed upon him beyond the recording of that finding, for the reasons that I have explained above. In particular, I was satisfied on the evidence that Mr Grant had engaged in inappropriate and disrespectful conduct on 19 February 2024 toward a senior police officer and his manager, and that this was contrary to his obligations as a NSWPF employee and amounted to misconduct. I otherwise considered taking no further action beyond the recording of the finding to be an appropriate response, given Mr Grant's explanations for his behaviour and the relatively low gravity of the misconduct.

44. Otherwise, to the extent that LECC was notified of the outcome of the misconduct matter, including that the finding of misconduct had been recorded with no further action, this was based on nothing more than complying with the NSWPF's statutory obligation to provide such a notification.

45. In terms of each of the matters raised at paragraph 41 above, I was aware of only some of those matters as at 14 June 2024 when I made my decision. In particular, Mr Grant's Response:

a. at [7], expressly referred to him having made complaints, between June 2023 and February 2024, about being directed to perform alternative duties, limits being placed on his working from home arrangements, bullying and unreasonable behaviour by Mr Drexler and being targeted and discriminated against. This seems to be the "2023 Complaints" he refers to in the Further Amended Application for Relief from Victimisation;

b. at [11], refers to him complaining about a toxic workplace and culture, which seems to be the "First February Work Health and Safety Complaint" he refers to in the Further Amended Application for Relief from Victimisation;

c. at [18], contained an allegation that the NSWPF had engaged in, and was continuing to engage in, victimisation of Mr Grant, which seems to be the "Section 210 Complaint" he refers to in the Further Amended Application for Relief from Victimisation.

46. There were also some emails in the documents I reviewed, between Mr Grant and Mr Drexler about the scope of his role and the duties he was expected to perform. I do not know if some or any of these emails are the "Changing Duties Complaints", to which he refers in the Further Amended Application for Relief from Victimisation.

47. I do not have any recollection of the Award Compliance Request, the February Duties Complaints or any of the First, Second or Third 19 February Email Complaints coming to my attention prior to reading the Further Amended Application for Relief from Victimisation. None of these documents formed part of the documents I reviewed in reaching the decision that I did on 14 June 2024 regarding Mr Grant's misconduct. None were included with Mr Grant's Response.

48. In terms of the February Duties Complaints, the Response did say, at [7(a)], that Mr Grant had complained about being told to do work outside of his usual responsibilities between June 2023 and February 2024, but it was not specifically brought to my attention that Mr Grant had made such a complaint during the meeting on 19 February 2024. As I refer to above, the Response did not contain any version of events from Mr Grant as to what he said occurred during that meeting.

49. I accept I was aware, as at 14 June 2024, at least in broad terms, of the 2023 Complaints, the First February Work Health and Safety Complaint, the Section 210 Complaint, and possibly the Changing Duties Complaints. I considered each of these matters, as Mr Grant expressly drew them to my attention in his Response. However, they were all irrelevant to my conclusion that Mr Grant had engaged in misconduct. The fact that Mr Grant made those complaints had no bearing at all on my decision-making, which was focused on whether Mr Grant had, on 19 February 2024, engaged in the behaviour alleged against him, and if so, what was the appropriate disciplinary action. I was satisfied on the evidence that he had engaged in misconduct, and decided that no further action beyond the recording of that finding was appropriate, for the reasons I have already explained.

50. The making of my findings was in no way connected to Mr Grant making any kind of complaint about his working conditions."

1. Superintendent Driver was cross examined, however his reasons for making the Findings were not directly challenged. The cross examination was directed toward establishing that the Findings were unsafe as they were based on unsworn accounts of the 19 February 2024 meeting and that the circumstances of the meeting had not been thoroughly investigated; and that, "the Respondent's failure to investigate the conduct of senior officers involved in the meeting while singling out the Applicant represent[ed] a biased process, suggestive of malice and victimisation."[15]
2. As discussed at [30] and [31] above, whether the Findings were unfair or even wrong, would not mean that the Applicant had been victimised. The question is, what was the substantial and operative reason for Superintendent Driver making the Findings? His unchallenged evidence is that he was satisfied "on the evidence", that the Applicant "had engaged in inappropriate and disrespectful conduct on 19 February 2024 toward a senior police officer and his manager, and that this was contrary to his obligations as a NSWPF employee and amounted to misconduct."
3. Superintendent Driver accepted in cross examination that the Findings were not based on sworn evidence, but explained:

"...the material provided or gathered by the Administrative Officer Conduct Unit was in the form of emails from Inspector or Chief Inspector Toby Austin and Mr Drexler and a version provided by Mr Gulliver, who at one point in time was brought into the meeting, the relevant meeting, I think it was 19 February 2024. There was sufficient material articulated in those emails for me to arrive at a decision in respect to a finding of misconduct pertaining to Mr Grant."

1. If the only evidence Superintendent Driver had before him were the emails from Mr Drexler and Chief Inspector and he uncritically accepted what was said in those emails, I consider that the Respondent would not have discharged her onus without calling both men to positively establish that in sending the emails that were not motivated by one or more of the prohibited matters, although it must be noted that this was not a submission made by the Applicant. This is because, as I explained in Sarceno at [49], (having earlier referred to a number of cases in support of my explanation including Wong v National Australia Bank Limited [2022] FCAFC 155; 318 IR 14), if a person performing the detrimental action acts on advice or information given by another, without bringing to bear their own independent judgment to the task, the state of mind of the person providing the advice or information will be relevant and must not include a prohibited reason, as any prohibited reason will be regarded as having infected the ultimate decision even if the ultimate decision marker was unaware of it.
2. However, in the present matter the unchallenged evidence of Superintendent Driver is that he reviewed all the material provided to him, including the statement of Mr Gulliver and the MB Response and "considered the more specific and detailed accounts of Mr Drexler and Chief Inspector Austin to be the better evidence". He said he "accepted the evidence of Chief Inspector Austin, Mr Drexler and Mr Gulliver (to the extent he was present), which was consistent with the behaviour alleged in the Allegation Letter, and rejected Mr Grant's denials, including his denial that his behaviour could ever amount to misconduct, and his attempts to explain his behaviour." He said that he "was satisfied that, amongst other things detailed in the Allegation Letter, Mr Grant had been aggressive in his tone toward Mr Drexler, accused him of lying, used inappropriate language and failed to speak with his colleagues in a respectful manner."
3. Superintendent Driver stated more than once in his statement, which evidence was unchallenged, words to the effect that the: "decision was my own, based solely on my review of the evidence, and not impacted by any view or recommendation provided to me by anyone else."
4. In short, Superintendent Driver conducted his own review and assessment of the material and concluded that the Applicant had behaved in the manner alleged and that that behaviour constituted misconduct. He did not simply accept and adopt the accounts provided by Mr Drexler and Chief Inspector Austin or what was said in the Godfrey Report.
5. While the Applicant challenged Superintendent Driver as to why he had made findings adverse to him "having only considered my response and the support person's statement, without obtaining any direct statements or sworn evidence from the individuals making the allegations"[16] it was not put to Superintendent Driver that any part of his factual finding, (or his conclusion that Applicant has engaged in misconduct), was wrong and the Applicant led no evidence indicating that the findings made by Superintendent Driver were wrong. It was clearly open on the evidence which Superintendent Driver considered, for the Superintendent to make the findings which he did. It was also not put to Superintendent Driver that he had not in fact considered the MB Response or the more moderate account of the meeting provided by Mr Gulliver, but rather had accepted and adopted uncritically the accounts of Mr Drexler and Chief Inspector Austin.
6. While I consider that the review and assessment of the material by Superintendent Driver in this case, which was based entirely on hearsay, untested accounts, was less rigorous than the review and assessment of the primary materials that was conducted by the decision makers in Saraceno, (and could well be wrong, although as already noted this was not put to Superintendent Driver or otherwise submitted by the Applicant), Superintendent Driver nonetheless conducted his own assessment of the facts - verifying their accuracy by assessing the emails against the Applicant's own account in the MB Response and the statement of Mr Gulliver - and determined for himself, rightly or wrongly, for a non-prohibited reason, that the Applicant had engaged in misconduct.
7. The facts of this case, as was the case in Saraceno, are distinguishable from those in Wong, where the decision maker had adopted information provided to her by the employee's manager without verifying its accuracy. In that case the manager had also personally authored the reasons for the removal decision and had accompanied the decision maker in seeking advice and expressed his opinion that the employee's employment was "untenable". Importantly, it was established that the decision to remove the employee had been taken before the employee was asked to provide her account of the matters alleged against her. That was not the case here. The Applicant was invited to make a statement in response to the allegations and he availed himself of that opportunity in the form of the MB Response, which Superintendent Driver considered before arriving at his decision that the Applicant had engaged in misconduct.
8. The Applicant, who did not have the benefit of legal representation, essentially made two arguments in support of his contention that he had been victimised by Superintendent Driver making the Findings. First, that the Respondent had failed to investigate the conduct of Mr Drexler and Chief Inspector Austin, about which the Applicant had lodged his own complaint and which had included an allegation that the job description provided to him during the meeting was a "false document", indicating that he had been "singled out"; and second, (as I apprehend the argument), that Superintendent Driver had not given sufficient weight to the fact that the Applicant's conduct was the product of the unfair and victimising treatment he perceived he received from Mr Drexler during, and perhaps before, the meeting.
9. The first argument was not entirely borne out on the evidence. In cross examination of Superintendent Driver, it was established that there were two complaints made by the Applicant concerning Mr Drexler and/or Mr Austin. Superintendent Driver was not responsible for dealing with the complaints which concerned members of the State Executive Service which were beyond his delegation. In any event, he gave evidence that the first complaint was an allegation of bullying at the meeting and that that complaint "was basically finalised because there were no further particulars [provided]" despite the Applicant being requested to provide further particulars.[17] In respect of the second matter, which concerned Mr Drexler, Superintendent Driver stated "the material was assessed, was referred to the Commissioner and the Commissioner made a decision for the matter to be resolved locally and the Assistant Commissioner in charge of that unit took no further action."[18]
10. Counsel for the Respondent submitted that it was not the case that "nothing happened" in respect of the Applicant's complaints. He submitted:

"The fact [is] action was taken and it might not have been the case that people were investigated and removed or otherwise subject to some sort of heinous disciplinary action but the idea that it was all just cast aside and focus was myopically on Mr Grant is just not consistent with the evidence that's before the Commission."[19]

1. Even if there was a disparity in the approach taken to the complaints made by Mr Drexler and Chief Inspector Austin compared with those made by the Applicant, in circumstances where Superintendent Driver was not responsible for any action taken, or not taken, in respect of complaints made by the Applicant, such disparity could not imply that Superintendent Driver had "singled out" the Applicant when he made the Findings, by reason of the proscribed matters.
2. The second argument made by the Applicant, as identified at [130] above, is really my own reformulation of the following submissions made at AS [4.10] - [4.12] and the Applicant's oral submission as to the "key issues":

"4.10 The Applicant submits that the Commission ought to place significant weight on the fact the documents presented as the Applicant's substantive Role Description as part of the meeting 19 February 2024 were false.

4.11 Additionally, the Applicant submits that the Commission ought to place significant weight on the fact the Applicant also had employment conditions uses as leverage during the meeting on the 19 February 2024.

4.12 Finally, The Applicant submits that the Commission ought to place significant weight on the fact the Applicant under such circumstances was highly distressed and disagreeable during the meeting on the 19 February 2024, due to the falsities and perceived extortion that was happening in the meeting."

1. The first point to make in respect of these submissions is to reiterate that the only contravention of s 210 being prosecuted in this proceeding concerns the making of the Findings, and the recording and reporting of those Findings. Any victimisation that may have occurred at the meeting itself or before the meeting is not the subject of the proceeding.
2. The second point to make, although it ultimately has no bearing on whether the Respondent has met her onus, is that the submission at AS [4.12] supports the accounts of the Applicant's behaviour at the meeting which Superintendent Driver accepted.
3. Lastly, to the extent these submissions suggest that in making the Findings Superintendent Driver did not give sufficient weight to the fact that the Applicant's conduct was the product of the unfair and victimising treatment he perceived he received from Mr Drexler during the meeting, allowing an inference to be drawn that Superintendent Driver had been activated by a prohibited reason to make the Findings, the submission must be rejected as it is not borne out by the evidence.
4. As set out at [115] above, the Godfrey Report supported the Applicant's view that his request for a role description, working from home provisions and flex time, these being the subject matter of the meeting, were not unreasonable and were "available to all administrative officers employed, [and] the application of the entitlement is negotiated at Command level in a fair and reasonable way in line with the Award, policy and operational requirements." Further the Godfrey Report prepared by Ms Gillett expressed the view that it was "not reasonable to present an administrative officer with an emailed role description and expect that email to be legally binding and enforceable."
5. It would seem that arising from these remarks and perhaps the subsequent complaints made by the Applicant in respect of the meeting, the Manager of the AOCU, Chief Inspector Newton, noted on the Godfrey Report that he had "consulted with the T&CSC HR Manager in relation to the broader issues raised in this matter" and that "that officer intends, as the HRM for the newly formed T&CS Command to attend to the nonmisconduct (sic) HR issues raised by the relevant employee."
6. I infer from the above that the Applicant had been treated unfairly at the meeting on 19 February 2024 and possibly even victimised within the meaning of s 210, but that is not a matter that bears on the factual determination I now have to make namely: what was the substantial and operative cause of the detrimental action?
7. It is clear from the unchallenged evidence of Superintendent Driver, in particular at [28], [29], [35], [43] that he was aware of the Applicant's grievances and considered the Applicant's conduct in light of the circumstances and context of the 19 February meeting, including the Applicant's explanations for his behaviour and expressly stated that he understood the Applicant's "frustration with the situation", however he did not consider that this excused "the manner in which [the Applicant] chose to express himself in the meeting of 19 February 2024".
8. For completeness, I note that there is one aspect of Superintendent Driver's evidence which I am not inclined to accept. At [48] of his Statement he says that it was not specifically brought to his attention that the Applicant had made what constituted the February Duties Complaints during the meeting on 19 February 2024, consequently he says he was unaware of it at the time he made the Findings.
9. It is plain from Mr Ormes email referring the matter to the AOCU dated 30 February 2024, which was reviewed by Superintendent Driver, that the 19 February meeting related to the Applicant's "current responsibilities as a CS5 Network Administrator" and that the Applicant "believes that he is not working in line with his role description" and that "discussions/meetings" with the Applicant, including the 19 February meeting had "been ongoing now for months." Further, Mr Drexler's email contained the following:

"In our conversation, I attempted to reiterate that Leighton should continue following the direction I provided to him in July 2023 (attached) that includes description of his responsibilities.

He categorially refused doing this and was threating me with legal consequences...."

1. I consider that Superintendent Driver likely did have knowledge of the matters constituting the February Duties Complaint. However, even if this were the case this knowledge alone, and the fact that Superintendent Driver appears to have given inaccurate evidence about his knowledge, is not sufficient for me to disbelieve his otherwise uncontroverted evidence as to why he made the Findings, particularly in circumstances where the Superintendent was not given an opportunity to explain the apparent inconsistency in his evidence; there are no other objective facts to contradict the Superintendent's evidence; and the Superintendent's Findings were open on the evidence he considered.
2. In the premises the Respondent has rebutted the presumption in s 210(2) of the IR Act.

1. The protected complaints made by the Applicant as pleaded in the FAA played no substantial or operative part in the Respondent's delegates' decision to take detrimental action against him. Accordingly, the Applicant has not established that he has been victimised within the meaning of s 210(1) and no relief is warranted.
2. The proceedings are dismissed.

[1] At the time of giving evidence Superintendent Driver had been promoted to Assistant Commissioner.

[2] Industrial Relations Act 1996, Sch 4, cl 84.

[4] Tcpt, 30 April 2025, p 40(5) - (13). The parameters of the relevant detrimental conduct had been in contest at the hearing of the Respondent's Notice of Motion, but was accepted by the Respondent at the final hearing to include the recording of the finding of misconduct on AIPro and the reporting of it to the LECC.

[7] Tcpt, 30 April 2024, p 45(6) - (18).

[8] A "detrimental action offence" means an offence against s 33 of the Public Interest Disclosures Act 2022: s 69(1) of the GSE Act, Public Interest Disclosures Act 2022, Dictionary.

[9] Macquarie Dictionary, online ed, accessed 6 August 2025.

[10] Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (obo Saraceno) v Commissioner of Police [2024] NSWIRComm 1001 at [69].

[14] Tcpt, 30 April 2025, p 52(29) - (32).

[17] Tcpt, 30 April 2024, p 36(1)-(14).

[18] Tcpt 30 April 2024, p 36(45) - (48).

[19] Tcpt, 30 April 2024, p 57(34)-(39).