The applicant attested to the NSW Police Force on 27 August 2010. At the time of his removal, he had more than 13 years' service in the NSW Police Force.
The applicant gave evidence of having received numerous "complimentary remarks" and "complimentary letters" during his service. These include three acknowledgments of good police work, seven Complimentary Remarks, two Region Commander Certificates of Merit, a Commissioner of Police Emergency Commendation and the NSW Police Medal.
The applicant's length of service with the NSW Police Force cannot be viewed in isolation from his disciplinary history over the last five years. That history significantly compromises the weight that otherwise might be attached to a tenure of more than 13 years.
The applicant has secured employment as a mortgage broker and earns significantly more than he did as a police officer. Accordingly, no claim of financial hardship is made.
[2]
The public interest
By s 181F(3)(b), the public interest is taken to include the interest in maintaining the integrity of the NSW Police Force and the fact that the Police Commissioner made the Order. The public interest also includes the elimination of conduct which may bring the NSW Police Force into disrepute: Lawrance v Commissioner of Police (2010) 199 IR 139; [2010] NSWIRComm 149 at [319].
The applicant submitted that there was a public interest in returning to the police force an officer "who can and does perform the role well", particularly in the current environment where recruiting new police officers is a challenge. That submission does not sit easily with the applicant's disciplinary history over the last five years.
As submitted by the Police Commissioner, there is a strong public interest in police officers properly investigating domestic and family violence offences. There is also a strong public interest in the NSW Police Force not tolerating sexual harassment, including in order to combat current recruitment challenges.
Apart from Allegation 8, which was not made out, the applicant's conduct was unacceptable. I accept the Police Commissioner's submission that members of the public are entitled to expect that police officers will not repeatedly misconduct themselves, will take action to investigate and action complaints of domestic violence and will not engage in sexual harassment.
Further, it follows from my findings that, in addition to being dishonest or disingenuous in his responses to NSW Police Force investigations, the applicant's evidence before this Commission lacked candour. In that regard, both parties referred me to the decision of Toshack v Commissioner of Police [2008] NSWIRComm 150, in which Marks J held at [43] that the failure of the applicant in that matter to give evidence in a forthright manner and his propensity to rationalise evidence reflected adversely on his integrity. Such findings are apt in this matter.
[3]
Conclusion
The decision of the Police Commissioner to remove a police officer with more than 13 years of service must be viewed as a response to the totality of the allegations. Nor do they stand in isolation. As noted at the outset, the applicant's disciplinary history, which included conduct similar to that caught by Allegations 1-10, afforded him multiple opportunities to improve his behaviour to the standard expected of him and warned him in clear terms of the consequences of failing to do so.
Save for Allegation 8, the applicant has not persuaded me that the allegations made by the Police Commissioner in her Statement of Reasons cannot be established. As noted at [72], each of Allegations 4, 5, 10 and 12 could, of themselves, justify the Order. Accordingly, my finding concerning Allegation 8 is immaterial to the reasonableness of the Order. I find that the applicant has failed to demonstrate that the Order was unreasonable or unjust.
On the question of harshness, I accept that the applicant is aggrieved at being removed from his chosen occupation. I note that his removal did not bring with it the adverse financial consequences often seen when a serving police officer is removed from the NSW Police Force. In Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 (in the context of s 84 of the Industrial Relations Act 1996 (NSW)) the Full Bench observed at [35] that harshness involves a consideration of
" … whether the dismissal was disproportionate to the gravity of the misconduct both in itself and when examined in the light of mitigating circumstances including the personal and economic circumstances of the [applicant]."
In all the circumstances, I am not persuaded that the applicant's removal from the Police Force was disproportionate to the gravity of his conduct. I find that the applicant has failed to demonstrate that the Order was harsh.
Having determined that the Order was not harsh, unjust or unreasonable, the only appropriate order is that the Application be dismissed.
[4]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 19 December 2024
Parties
Applicant/Plaintiff:
Herring
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
Part 9 of the Police Act is titled "Management of conduct within NSW Police Force". For the purposes of these proceedings, this Part relevantly includes the following provisions:
Division 1B Summary removal of police officers in whom Commissioner does not have confidence
181D Commissioner may remove police officers
(1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct.
…
(3) Before making an order under this section, the Commissioner -
(a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and
(b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and
(c) must take into consideration any written submissions received from the police officer during that period.
(4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force.
…
Division 1C Review of Commissioner's decision under Division 1B
181E Review generally
(1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the removal is harsh, unreasonable or unjust.
…
181F Proceedings on a review
(1) In conducting a review under this Division, the Commission must proceed as follows -
(a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force,
(b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust,
(c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case.
(2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary.
(3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to -
(a) the interests of the applicant, and
(b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D(1)).
The terms of Part 9 Divisions 1B and 1C of the Police Act were the subject of consideration in Commissioner of Police, New South Wales Police Force v Zisopoulos (2020) 299 IR 314; [2020] NSWCA 236 (Zisopoulos). In that case, Bell P (as his Honour then was), with whom Macfarlan JA agreed, observed:
"82 The central issue will always be whether or not the decision to remove the officer was 'harsh, unreasonable or unjust'. These concepts overlap but are not synonymous. The three criteria may be established in various ways or by different means. And they are alternatives. So much is illustrated in the following well known passage taken from the joint judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465; [1995] HCA 24:
'It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.'
83 The nuanced nature of a s 181E review based upon the statutory criteria of harsh, unreasonable or unjust is one that the legislature has entrusted to a specialist tribunal in the form of the IRC. The IRC's review is not 'de novo' but, on the other hand, as Mr Kirk accepted in oral argument, is closer to a merits review than judicial review. Assessment as to whether a particular decision of the Police Commissioner engages the statutory criteria necessarily must have regard to the basis and reasoning employed by the Police Commissioner in any given case.
84 Depending upon the basis of the Police Commissioner's decision, as the Full Bench said at [27] citing Starr, the burden of establishing that a decision to remove a police officer is harsh, unreasonable or unjust may be satisfied in a given case by casting sufficient doubt on the Police Commissioner's reasoning process so as to justify the IRC's intervention. But it is important always to remember that 'sufficient doubt' is not 'any doubt', and the raising of a doubt, sufficient or otherwise, does not in any way alter or affect the legal burden which lies on the removed police officer to demonstrate that his or her removal was harsh, unreasonable or unjust. So also, the mere 'going into evidence' by, or the raising of an alternative hypothesis on behalf of, a removed police officer will not per se establish that a removal was harsh, unreasonable or unjust nor will it place an evidentiary or tactical burden on the Police Commissioner to justify his original decision to remove the officer. Whether or not it does will be a function of the basis of the Police Commissioner's original decision and of the strength of the evidence led by the removed officer and or the credibility of the alternative hypothesis.
85 If what the Full Bench in the present case referred to as 'sufficient doubt' is raised by the removed officer, an evidentiary or tactical burden may arise which will require the Police Commissioner to answer the doubt in order to defeat the conclusion which may have become open in light of evidence before the IRC, namely that the impugned removal decision was harsh, unreasonable or unjust."
I have also had regard to the observations of Wright J in Storey v Commissioner of the New South Wales Police Force (No 2) [2020] NSWSC 1429 at
[125]-[128]. I will not reproduce those passages.
As Bell P observed in Zisopoulos at [83], the Commission's review "is not 'de novo' but … is closer to a merits review than judicial review". This is reflected in the observations of the Full Bench of the Commission in Court Session in Bradley George Hosemans v Commissioner of Police (2004) 138 IR 159; [2004] NSWIRComm 253 at [134]:
"The correct approach is that the Commission is to make a fresh and independent review decision itself, based on the material before the Commissioner as well as any new evidence admitted. Further, that review process is to be undertaken in accordance with the provisions of s 181F(1) of the Police Act…".
As to the onus borne by an applicant in proceedings under s 181E, in Tredinnick v Commissioner of Police [2016] NSWIRComm 14, the Full Bench observed:
"55 … That burden falls to an applicant for review under s 181E although a closer alignment with the provisions of Divs 1B and 1C of the Act would have that conclusion expressed thus: the burden falling upon an applicant is to establish the removal was harsh, unreasonable or unjust. In the case of an applicant contending that a removal was unjust because the applicant did not engage in some or any of the 'misconduct' or infringements to the officer's duties and responsibilities (of the kind referred to under s 181D(1)), the burden falls upon the officer to prove that he is not guilty of misconduct (or 'conduct') in that respect. This may mean the provision of proof there is no basis in fact from the allegations or that the allegations involve a misunderstanding or a misapprehension of the facts."
The Full Bench went on to observe at [61] that an applicant "may satisfy the burden imposed by s 181F(2) if he or she satisfies the Commission that the reasons for removal provided by the respondent are flawed or defective either in a procedural or substantive sense".
Conclusions
It was not in dispute that the Notice was served on the applicant pursuant to s 181D(3)(a) of the Police Act, and that he was given 21 days to make a written response to the Police Commissioner in accordance with s 181D(3)(b). He availed himself of that opportunity in providing the Response. Both the Order and the Statement of Reasons suggest that the Response was taken into consideration, as required by s 181D(3)(c).
In Baker v Commissioner of Police [2015] NSWIRComm 14, Kite AJ observed:
"95 The Commissioner is obliged by s 181D(4) of the Act to give reasons. This statutory duty is an exception to the common law position in relation to administrative decisions: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. The adequacy of the content of those reasons is to be determined, absent any express requirements in the legislation, by an exercise of statutory construction: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 303 ALR 64; 88 ALJR 52.
96 The statutory purpose may be inferred from the surrounding provisions, in particular s 181D(7) and Division 1C of the Act. One purpose which may be inferred is to inform the officer directly affected as to why the decision has been taken so as to allow that officer to decide whether to commence review proceedings. Another purpose which may be inferred is to facilitate any such review.
97 That then requires a consideration of the nature of these proceedings. As observed above, while the starting point in such proceedings is the Commissioner's reasons, the burden is upon the applicant to establish 'that the removal was harsh, unreasonable or unjust'. The Commission hears the applicant's case and the Commissioner's case in response, and then makes a 'fresh and independent review [of the] decision itself'.
98 The adequacy of the content of the reasons is to be measured in this context. The essence of the reasons is to explain why the decision has been taken. It is not necessary, in the reasons, expressly to negate every possibility: cf Lawrance at [274]-[276]…"
The Statement of Reasons explains how the Police Commissioner determined that each of Allegations 1 to 12 had been substantiated. The gravity with which those findings were to be viewed was assessed in the context of the applicant's disciplinary history.
Under the heading "Consideration", the Police Commissioner noted her concerns about the applicant's integrity, particularly in relation to Allegations
4, 5, 10 and 12. She did not accept the applicant's denials and otherwise did not accept that his displays of dishonesty, or at least disingenuity, could be attributed to inadvertent mistakes or difficulties with recollections. Further, she found that the applicant failed to demonstrate the fundamental requirement of a police officer: to be completely truthful in all circumstances. In addition, the Police Commissioner expressed concerns about:
1. The applicant's tendency to shift blame to complainants by suggesting that they were never going to be satisfied with any level of assistance provided, and downplay his own culpability for his failures;
2. The applicant's lack of accountability and apparent unwillingness to genuinely consider and reflect on his contribution to matters;
3. The applicant's claim that he is the target of a "witch hunt";
4. The applicant's statement that he was not provided with any remedial action in February 2022 or any opportunities for further education and training in view of the Conduct Management Plan imposed upon him in February 2022; and
5. The conduct in relation to Allegations 1 to 10, in light of the applicant's disciplinary history and his notification that further conduct of the kind in which he has engaged could result in his removal.
Individually, several of the allegations would not provide a reasonable basis for the Order. However, they need to be viewed collectively. Further, each of Allegations 4, 5, 10 and 12 would justify the Order on their own. Accordingly, on its face, the Statement of Reasons provided a basis for the Order.